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KAREN LAGASSE, INDIVIDUALLY, AND ON BEHALF OF HER DECEASED MOTHER, MERLE LAGASSE VERSUS

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NO. 2011-CA-0782 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

TENET HEALTHSYSTEM MEMORIAL MEDICAL * CENTER, INC., RENE GOUX, ROY J. CULOTTA, RICHARD * DEICHMANN, AND JANE DOE * * * * * * *

TOBIAS, J., CONCURS AND ASSIGNS REASONS.

I write separately because the majority omits certain facts that I find relevant to an full understanding of the issues, why we reach the conclusion that we do, and to alert an interested observer as to some looming issues that may arise in the future as facts and circumstances may warrant. On 25 August 2006, the plaintiff, Karen Lagasse, filed her suit alleging medical malpractice committed upon her deceased mother, Merle Lagasse, following and arising out of the events immediately following Hurricane Katrina striking the New Orleans area on 29 August 2005. Prior to filing her suit, she failed to file her claim with the Louisiana Division of Administration seeking a medical review panel. See La. R.S. 40:1299.47. The defendant, Tenet HealthSystems Memorial Medical Center, Inc. ("Tenet"), filed a dilatory exception of prematurity on 30 October 2006. The defendant, Roy J. Culotta, M.D., filed a declinatory exception of insufficiency of service of process on 19 April 2007 that was subsequently overruled on 9 July 2007. On 27 September 2007, the plaintiff supplemented and amended her original suit. Dr. Culotta answered the original petition only on 8 October 2007.1 Thereafter, the defendant, Richard E.
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All declinatory and dilatory exceptions must be raised at the same time. La. C.C.P. arts. 925 C and 926 B. The filing of an answer waives the right to plead declinatory and dilatory exceptions unless the exception is pleaded in the answer. La. C.C.P. art. 928 A.

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Deichmann, Jr., M.D. ("Deichmann"), filed a supplemental dilatory exception of prematurity to the plaintiffs supplemental and amended petition.2 On 7 November 2011, Tenet and the defendant, Rene Goux ("Goux"), filed a declinatory exception of prematurity to the supplemental and amended petition.3 Reserving their rights as to the dilatory exceptions, Tenet and Goux answered the petition as supplemented and amended on 6 June 2008. Subsequently, Deichmann and Goux filed motions for summary judgment.4 See La. C.C.P. art. 966 A. On 1 September 2010, the plaintiff again supplemented and amended her petition, by adding an allegation that Dr. Culotta had injected Merle Lagasse with a lethal dose of unknown narcotics. Dr. Culotta filed a further dilatory exception of prematurity to this new supplementation and amendment on 26 October 2010 to which was attached a certificate from the Division of Administration, showing that he was a qualified health care provider under La. R.S. 40:1299.41, et seq. (the Medical Malpractice Act). Finally, on 30 November 2010, the plaintiff filed a third supplemental and amending petition alleging euthanasia by Dr. Culotta. A judgment was rendered on 18 February 2011, sustaining only Dr. Culottas exception of prematurity; such is the only judgment presently before this court on appeal.5

In my view, this case is driven by the Louisiana Supreme Courts decision in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, (and its progeny), wherein the Court held that the filing of suit against a qualified health care provider in the district court neither suspends nor interrupts the one year

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Apparently, Dr. Deichmann filed an earlier dilatory exception of prematurity which is not part of the record on appeal. 3 Apparently, like Dr. Deichmann, Goux had filed an exception of prematurity that does not appear in the record on appeal. Goux is apparently the CEO of Tenet. 4 Deichmanns motion for summary judgment was granted on 24 September 2010 and he was dismissed from the case.

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prescriptive period for filing medical malpractice claims. LeBreton makes clear that a party asserting a claim of medical malpractice must assume that the allegedly malpracticing health care provider is a qualified health care provider under the Medical Malpractice Act. Before LeBreton, a person had a right to assume that his or her health care provider was not necessarily covered by the Medical Malpractice Act and could file a suit in the district court that would interrupt prescription. Thereafter, if the health care provider was determined to be a qualified health care provider, the district court suit would be deemed premature and had to be dismissed.6 Thus, because Dr. Culotta was a qualified health care provider at the time of his treatment of Merle Lagasse and the plaintiff failed to first submit her claim to the Division of Administration such that it could be reviewed by a medical review panel, the case against Dr. Culotta is now prescribed. To, so-to-speak, circumvent the problem, the plaintiff in oral argument stated to this court that she abandons all of her claims against Dr. Culotta for medical malpractice except for the intentional tort of euthanasia. Louisiana has a strong public policy against euthanasia. See La. Const. Art. I,

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