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04/09/2010 "See News Release 026 for any Concurrences and/or Dissents."
SUPREME COURT OF LOUISIANA No. 10-CC-0564 YVONNE NEWSOME VERSUS HOMER MEMORIAL HOSPITAL, ET AL

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CLAIBORNE
PER CURIAM1 This matter arises out of a medical malpractice suit brought by plaintiff Yvonne Newsome against Clint C. Butler, M.D., John H. Smith, M.D., and Homer Memorial Medical Center, defendants. Defendants treated plaintiff from December 21, 2004 to December 28, 2004. The issue before us is whether, five years after the date the alleged malpractice occurred, the trial court erred in continuing a hearing on defendants' motion for summary judgment so that the filing of the affidavit of plaintiff's expert witness opposing the motion for summary judgment would not be untimely. For the reasons that follow, we hold that it was, indeed, error for the trial court to continue the hearing. Prior to bringing suit, plaintiff had filed a request for a medical review panel with the Louisiana Patients' Compensation Fund on December 23, 2005, a full year after the alleged malpractice; however the attorney chairperson was not appointed until November 3, 2006. Following a lengthy delay of over two years, during which time plaintiff missed five deadlines to submit her evidence and required that the life of the panel be extended three times, the panel met on February 11, 2009, and rendered a unanimous decision in favor of defendants. Plaintiff filed suit on June 10, 2009, but withheld service on defendants for ninety days, until the last day allowed to request service, September 9, 2009. Defendants propounded discovery to plaintiff on October 1, 2009, specifically asking
1

Kimball, C.J., did not participate in the deliberation of this opinion.

if plaintiff had obtained an expert witness. Plaintiff had not responded to the discovery as of March 12, 2010, the date the application was filed in this Court. Defendants, on December 9, 2009, filed a Motion for Summary Judgment, which was set for hearing on January 22, 2010. On January 7, 2010, plaintiff's counsel contacted defendants' counsel and asked for a continuance of the hearing based on plaintiff's counsel's trial schedule. Defendants' counsel agreed to the continuance, with the caveat, to which plaintiff's counsel agreed, that the matter would not be continued again. The hearing was rescheduled for February 11, 2010. On February 4, 2010, seven days prior to the scheduled date for the hearing of the motion for summary judgment, plaintiff filed a "Motion for Continuance or in the Alternative, Motion for Permission to File Affidavits Late." The trial court set the hearing on plaintiff's motion for the same date as the date of the hearing of defendants' motion for summary judgment, February 11, 2010. At the hearing of plaintiff's motion, plaintiff presented to the trial court an expert's affidavit, and requested that the hearing of defendants' motion for summary judgment be continued so "the late filed affidavit [would] be considered timely." Transcript at p. 2, l. 30. After listening to the arguments of both counsel, the trial court stated: Well, I guess my inclination is to deny the continuance, and also the time to give for the affidavit, but I don't want to punish your client because of something that you failed to do, and I think even if I ruled against you, maybe the Court of Appeal would probably send it back saying that's possibly what I'm doing. So, I'm going to go

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