In Re: David Metzner ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-30350
_______________________
RUTH S. BIERY,
Appellee,
versus
MICHAEL CHIASSON,
Appellant.
______________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-2174-J)
______________________________________________________________
April 10, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.
EDITH H. JONES, Circuit Judge:*
Michael Chiasson, trustee for the estate of Dr. David
Mark Metzner, appeals the district court’s determination that the
bankruptcy court lacked jurisdiction to decide whether Ruth Biery’s
claim against Metzner had prescribed. We do not reach the
jurisdiction question, but reverse and remand because Biery’s claim
has not prescribed.
FACTS & PROCEDURAL HISTORY
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Louisiana’s Medical Malpractice Act requires that, before
filing suit, prospective medical malpractice plaintiffs submit
claims against qualified health care providers for review by a
medical review panel.2 See La. R.S. 40:1299.47(A)(1). The
putative plaintiff initiates the process by filing a request for
review of a claim and then consulting with the other party about
who will serve as attorney chairman.3 See La. R.S.
40:1299.47(A)(2)(a).
On November 24, 1992, while performing a blepharoplasty
on Biery, Dr. Metzner punctured the globe of Biery’s left eye,
allegedly committing medical malpractice. As required, Biery filed
a request for a medical review panel on March 15, 1993. On
September 1, 1993, Dr. Metzner voluntarily filed for Chapter 7
bankruptcy and all proceedings against him were accordingly
automatically stayed.
In February of 1996, Chiasson filed a motion for relief
from the automatic stay so that Biery and another creditor could
proceed. On March 27, 1996, the Bankruptcy Court modified the
automatic stay to allow Biery’s claim to proceed.
A year later, on March 28, 1997, Biery’s attorney
contacted Chiasson’s attorney in order to begin the selection of an
2
Medical review panels consist of three health care providers and one
attorney, who acts as the chairman of the panel. See La. R.S. 40:1299.47(C).
The chairman is selected first and is expected to expedite the selection of the
other members and act as caretaker of the process. See La. R.S.
40:1299.47(C)(2).
3
If no agreement is reached, the PCF provides the parties with the
names of five area attorneys selected randomly, and the parties choose from among
those five. See La. R.S. 40:1299.47(C).
2
attorney chairman pursuant to La. R.S. 40:1299.47. Because the
parties could not agree on a chairman, they utilized the statutory
selection provisions. On May 22, 1997 the parties reached
agreement and so notified the Patients’ Compensation Fund (“PCF”)
by letter the same day.
On June 26, 1997, the PCF advised Biery’s attorney by
certified letter that pursuant to La. R.S. 40:1299.47(A)(2)(c)
Biery’s claim would be dismissed within 90 days of receipt of the
letter if a chairman were not selected or a notice sent to the PCF
requesting a list of possible attorney chairman. In response,
Biery’s attorney sent a certified letter on July 1, 1997 again
notifying the PCF of the May 22, 1997 appointment of the attorney
chairman.
Asserting that Biery’s claim had prescribed, on April 13,
1998 the trustee filed an objection to Biery’s claim. The
Bankruptcy Court sustained the objection and disallowed the claim
as prescribed. Biery appealed to the district court, arguing both
that the Bankruptcy Court lacked jurisdiction to determine the
prescription question and that the claim had not prescribed in any
case. The district court found that the bankruptcy court lacked
jurisdiction over Biery’s claims because a prescription
determination in a personal injury claim is a non-core proceeding;
the court did not decide the prescription question.
DISCUSSION
We decline to decide whether the bankruptcy court had
jurisdiction over the issue of prescription. This difficult
3
question is unnecessary to the decision in this case;4 it is
undisputed that both the district court and this Court can properly
exercise jurisdiction over questions of prescription in personal
injury cases against bankrupt defendants. The prescription issue
was briefed fully before this Court and before the court below, and
this Court therefore may decide the case on that issue. See Portis
v. First Nat’l Bank of New Albany, 34 F.3d 325, 331 (5th Cir.
1994).
Whether or not Biery’s claim has prescribed is a question
of law that we review de novo. See In re Kosodnar, 157 F.3d 1011,
1013 (5th Cir. 1998).
As stated above, Louisiana’s Medical Malpractice Act
requires that all malpractice claims against qualified healthcare
providers be presented to a medical review panel before suit is
filed in a court of law. See La. R.S. 40:1299.47; LeBreton v.
Rabito, 714 So. 2d 1226, 1230 (La. 1998). Because the Act imposes
this constraint on plaintiffs’ ability to sue, it also provides
that the filing of a request for review before a panel suspends the
running of prescription. See La. R.S. 40:1299.47(A)(2)(a);
LeBreton, 714 So. 2d at 1230 - 31. Unless suspended, an action for
medical malpractice must be brought within a year of the alleged
4
The question is not first a constitutional question but a matter of
the interpretation of 28 U.S.C. § 157(b)(2)(B), which excludes from the
definition of core bankruptcy proceedings the liquidation or estimation of
unliquidated personal injury tort claims against the estate and § 157(b)(5),
which requires the district court to try personal injury claims asserted in
bankruptcy.
4
wrong, or within a year of the date of discovery of the alleged
wrong.5 See La. R.S. 9:5628.
In order to prevent the review process from causing
excessive delay, the Act also directs the PCF Oversight Board to
dismiss claims, after giving notice to the claimant, where the
claimant has taken insufficient action toward establishing a
medical review panel. Specifically, La. R.S. 40:1299.47(A)(2)(c)
provides: “The board shall dismiss a claim ninety days after giving
notice by certified mail to the claimant or the claimant’s attorney
if no action has been taken by the claimant or the claimant’s
attorney to secure the appointment of an attorney chairman for the
medical review panel within two years from the date the request for
review of the claim was filed.” La. R.S. 40:1299.47 (A)(2)(c).
Biery bases her most persuasive argument as to why her
claim has not prescribed on this failure to notify. She contends
that because she did not receive any notice from the PCF Board
until after an attorney chairman had already been chosen, the
running of the prescription time is still suspended. Chiasson
argues in opposition that, because Biery did not take any action to
have an attorney chairman appointed for the medical review panel
within two years, the suspension of the running of prescription
lapsed and her claim is now prescribed.6
5
The discovery rule exception is subject to a three year cut-off. See
La. R.S. 9:5628.
6
Biery also argues that the automatic stay suspended the running of
La. R.S. 40:1299.47(A)(2)(c)’s two year period. As Chiasson correctly points
out, however, the bankruptcy court’s automatic stay would not suspend La. R.S.
5
Chiasson’s contention that the prescription period can
start to run again whether or not the PCF Board has notified the
claimant of a possible dismissal is incorrect. The statute does
not state that the claim is automatically dismissed if no action is
taken in two years – rather, the statute requires that the board
give notice to the claimant of possible dismissal and afford the
claimant ninety days in which to save the claim. Only after it has
given notice is the board directed to dismiss the claim. This
interpretation is consistent with the way that Louisiana courts
have interpreted the provision. Louisiana’s Second Circuit has
stated:
Under our interpretation of LSA-R.S. 40:1299.47(A)(2)(c), a
claimant has at least two years and 90 days to take action to
secure the appointment of an attorney chairman, with the 90-
day period to begin running only after the sending of the
required notice by the PCF. Bossier Medical Center v.
Prudhomme, 718 So. 2d 627, 629 (La.App. 2 Cir. 1998).
Louisiana’s Fifth Circuit has agreed with this reasoning. See
Sarcer v. Strand, 742 So. 2d 1068, 1069 (La.App. 5 Cir. 1999)(“the
statute requires the Board to notify the claimant that if action is
not taken within 90 days from the date the notice is mailed, the
claim will be dismissed.”). Furthermore, the Louisiana Supreme
Court has also indicated that the Medical Malpractice Act “protects
plaintiffs who would otherwise suffer the detrimental effect of
40:1299.47(A)(2)(c)’s two-year period. See Rogers v. Corrosion Products, Inc.,
42 F.3d 292, 295 (5th Cir. 1995)(“contra non valentem does not suspend the
running of the prescriptive period because of the imposition of an automatic stay
under the Bankruptcy Code”); St. Jude Hosp. v. Kennedy, 698 So. 2d 998, 1000
(La.App. 5 Cir. 1997) (holding that because a bankruptcy court’s automatic stay
did not absolutely stymie creditor’s collection efforts, the prescription period
was not suspended and the claim had prescribed).
6
liberative prescription.” LeBreton, 714 So. 2d at 1230. Given this
policy, the language of the statute, and prior interpretation of
La. R.S. 40:1299.47(A)(2)(c), a claim may not be dismissed until
ninety days after the PCF board has notified the claimant of that
possibility.
Because Biery was not so notified until after an attorney
chairman had been selected, Biery’s claim has not prescribed
despite the fact that an attorney chairman was not chosen until
four and a half years after the alleged malpractice. Bossier and
Sarcer dictate that the ninety day period does not start until the
Board has sent its notification letter. In this case, the PCF sent
the letter on June 26, 1997, after an attorney chairman had been
selected and the PCF had been so notified. The medical review
process was therefore still ongoing, and the running of
prescription was still suspended.7
Section 108 of the Bankruptcy Code does not require a
different result. That section provides that a presciption period
extends to the later of: 1) the prescription period as established
by applicable non-bankruptcy law; or 2) 30 days after notification
of the termination of the automatic stay. See 11 U.S.C. 108(c).
Section 108 serves only to extend a prescription period; not to
7
The case law cited by Chiasson is not to the contrary. Grantham v.
Dawson, 666 So. 2d 1241 (La.App. 2 Cir. 1996), concerned the interpretation of La.
R.S. 40:1299.47(B)(3). That section is not at issue in this case. Lebreton v.
Rabito, 714 So. 2d 1226 (La. 1998), found that filing a medical malpractice claim
with a medical review panel triggered only the suspension of prescription
specially provided by the Medical Malpractice Act, rather than the general
provision on interruption of prescription in the Louisiana Civil Code. Appellee
does not rely on any general provision on interruption of prescription, but only
the provision found in the Medical Malpractice Act.
7
shorten it. If longer, the prescription period set by applicable
non-bankruptcy law controls. That is the case here – Louisiana law
suspended the running of prescription during the pendency of the
medical review process, which was still ongoing.8
Clearly, the medical review process did not work as it
should have. Neither Biery nor the PCF have acted promptly in
pursuing and processing the claim. Nevertheless, the PCF board
must notify the claimant in order to trigger the ninety day period,
after which the board may dismiss the claim. That procedure was
not followed here, and Biery’s claim is therefore not prescribed
for her failure to take action to secure an attorney chairman until
March 1997.
VACATED and REMANDED WITH INSTRUCTIONS.
8
Nor can the bankruptcy court’s notification of the lifting of the
automatic stay be considered as triggering La. R.S. 40:1299.47(A)(2)(c)’s 90 day
period. The statute requires notice of possible dismissal from the PCF. The
bankruptcy court’s order was not from the PCF, nor did it contain a notice of
possible dismissal. The PCF could have given notice to Biery anytime after the
stay was lifted, but it did not do so.
8