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MICHELLE A. JORDAN                                                                        *   NO. 2009-CA-1277
VERSUS                                                                                    *   COURT OF APPEAL
THE STATE OF LOUISIANA                                                                    *   FOURTH CIRCUIT
THROUGH THE BOARD OF
ADMINISTRATORS OF                                                                         *   STATE OF LOUISIANA
LOUISIANA STATE
UNIVERSITY                                                                                *
AGRICULTURAL AND
MECHANICAL COLLEGE,                                                                       *
HEALTH SERVICES                                                                           *
DIVISION AND THE
MEDICAL CENTER OF
LOUISIANA AT NEW
ORLEANS
TOBIAS, J., CONCURS AND ASSIGNS REASONS.
The procedural issue in this case is whether the state should be treated
differently in this matter than any other person.  Article XII, § 10(A) mandates that
“[n]either the state, a state agency, nor a political subdivision shall be immune
from suit and liability in contract or for injury to person or property.”  This means
that the state of Louisiana should be treated the same as any other person in a court
when a claim is based upon a cause of action in tort or contract.  See Segura v.
Louisiana Architects Selection Bd., 362 So.2d 498 (La. 1978) and its progeny.
The appellant was late in responding to discovery.  Additionally, the
appellant did not timely submit its opposition to the motion for summary judgment
of the appellee, Ms. Jordan.  Only with its motion for new trial, after the trial court
rendered judgment in favor of the Ms. Jordan on her motion for summary
judgment, did the appellant file a motion for new trial with the affidavit of the
physician asserting that the appellee signed a form consenting to the surgery and
that the physician explained the risks of the surgery to the appellee.
The appellant, in response to a discovery request, submitted the complete
medical record from MCLNO of the appellee; the response was given prior to the
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date Hurricane Katrina impacted the New Orleans area, so the appellant cannot
properly assert that the consent form was destroyed by the hurricane unless one is
to believe that the appellant withheld the consent form when it provided Ms.
Jordan’s complete medical record at MCLNO.  No consent form was contained in
the record.   (Certainly it is possible in a hospital a large as the MCLNO a record
can become misfiled or misplaced.)
Under these circumstances, I cannot find that the trial court abused its
discretion in either refusing to let the appellant file its late opposition to the motion
for summary judgment or in denying the motion for new trial of the appellant.  I
therefore respectfully concur in the decision of the majority.
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