Norman Paul Trahan, Sr. Individually, and as a Personal Representative on behalf of the Estate of Kathy Elizabeth Trahan v. Leonard J. Chabert Medical Center l/b/n Southern Regional Medical Corporation, Chabert Operational Management Company, LLC., Ochsner Clinic Foundation, Dr. John F. Engle, Grace Naquin, Elizabeth Robichaux, Michelle Landry Dupre, Claire Triche-Tabor, Steph ( 2019 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
J!/
NO. 2019 CA 0561
NORMAN PAUL TRAHAN, SR., INDIVIDUALLY, AND AS A
PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF
KATHY ELIZABETH TRAHAN
VERSUS
LEONARD J. CHABERT MEDICAL CENTER L/B/ N/ SOUTHERN
REGIONAL MEDICAL CORPORATION, CHABERT
OPERATIONAL MANAGEMENT COMPANY, LLC., OCHSNER
CLINIC FOUNDATION, DR. JOHN F. ENGLE, GRACE NAQUIN,
ELIZABETH ROBICHAUX, MICHELLE LANDRY DUPRE,
CLAIRE TRICHE- TABOR, STEPHEN J. FOURNIER, BLAINE
COTTON, TONYA K. LEBOEUF, SHALETHA WILLIAMS, DR.
GEORGE D. GROVE, DR. LEE ARCEMENT, AND XXX
INSURANCE COMPANY AND/OR COMPANIES
Judgment Rendered: DFQ 2 7 2niq
On Appeal from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 182, 841
Honorable David W. Arceneaux, Judge Presiding
Norman Paul Trahan, Sr. Plaintiff A
- ppellant,
Lafayette, LA In Proper Person
Stephanie D. O' Brien Attorney for Defendants -Appellees,
Assistant Attorney General John F. Engle, M.D., George D.
New Orleans Grove, M.D., Lee Arcement, M.D.
Brittany K. Sloan Attorneys for Defendants -Appellees,
Peter E. Sperling Leonard J. Chabert Medical Center 1/ b/ n,
Naidra T. Colon Southern Regional Medical Corporation,
D. Burke Stough Chabert Operational Management Company,
New Orleans, LA LLC, Grace Naquin, Elizabeth Robichaux,
Michelle Landry -Dupre, Claire Triche-
Tabor, Blaine Cotton, Tonya K. LeBoeuf
and Stephen J. Fournier
James P. Waldron Attorney for Defendant -Appellee,
New Orleans, LA Ochsner Clinic Foundation
MEMEM
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
1W
HIGGINBOTHAM, J.
In this medical malpractice, wrongful death matter, plaintiff, Norman Paul
Trahan, Sr., appeals the judgment of the trial court sustaining peremptory exceptions
raising the objection of no right of action in favor of numerous defendants.
FACTS AND PROCEDURAL HISTORY
On May 2, 2018, Mr. Trahan filed individually, and as a personal
representative on behalf of the estate of Kathy Elizabeth Trahan, a Petition for
Medical Malpractice, Wrongful Death, Fraud in Concealment, and Damages. In his
petition, Mr. Trahan contends that his sister, Kathy Trahan, was misdiagnosed and
physically harmed during a hospital stay at Leonard J. Chabert Medical Center
resulting in an infection, sepsis, a heart attack, and Kathy' s eventual death on May
10, 2017. Mr. Trahan named numerous defendants' contending that the treatment
they provided to Kathy breached the standard of care. In conjunction with his
petition, Mr. Trahan filed a motion to proceed in forma pauperis.
In response, the defendants filed, among other things, exceptions of no right
of action.2 In their exceptions, the defendants pointed out that Mr. Trahan
acknowledged in his petition that his and Kathy' s mother, Sybil Moosa Trahan (Mrs.
Trahan), was still alive and therefore, the defendants contended that Mr. Trahan had
no right of action for a survival action under La. Civ. Code art. 2315. 1 or a wrongful
death action under La. Civ. Code art. 2315. 2. The exceptions came before the trial
court for a hearing on September 7, 2018. After the hearing, the trial court signed a
judgment on September 24, 2018, sustaining the defendants' exceptions of no right
1 The following defendants filed exceptions of no right of action: Leonard J. Chabert Medical
Center 1/ b/ n Southern Regional Medical Corporation, Chabert Operational Management
Company, LLC., Grace Naquin, Elizabeth Robichaux, Michelle Landry Dupre, Claire Triche-
Tabor, Stephen J. Fournier, Blaine Cotton, and Tonya K. LeBoeuf (the Chabert defendants), Dr.
John F. Engle, Dr. George D. Grove, and Dr. Lee Arcement ( the State defendants), and Ochsner
Clinic Foundation ( Ochsner). ( collectively referred to as the defendants)
2 Ochsner filed an exception of no right of action on July 23, 2018, the Chabert defendants filed
an exception of no right of action on July 25, 2018, and the State defendants filed an exception of
no right of action on August 24, 2018.
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of action and revoking Mr. Trahan' s pauper status. Mr. Trahan filed an application
for supervisory writs from the September 24, 2018 judgment with this court. After
review of Mr. Trahan' s writ application, this court determined that the September
24, 2018 judgment was a final appealable judgment and granted Mr. Trahan' s writ
application for the limited purpose of remanding the matter to the trial court with
instructions to grant an appeal to Mr. Trahan. This court also reversed the trial
court' s revocation of Mr. Trahan' s pauper status. Thereafter, Mr. Trahan appealed
from the September 24, 2018 judgment sustaining the defendants' exceptions of no
right of action, raising several assignments of error.'
LAW AND ANALYSIS
Mr. Trahan contends that the trial court erred in sustaining the defendants'
exceptions of no right of action because Mrs. Trahan is in poor health, and his older
brother, Mr. Michael David Trahan, who has power of attorney over their mother,
signed an affidavit that gave Mr. Trahan the authority to act on behalf of their mother
in certain litigation. Mr. Trahan also argues that he has a right of action to pursue
his claims as the succession representative of Kathy' s succession. Louisiana Civil
Code article 2315. 1 provides in pertinent part in a survival action:
A. If a person who has been injured by an offense or quasi offense dies,
the right to recover all damages for injury to that person, his property
or otherwise, caused by the offense or quasi offense, shall survive for a
period of one year from the death of the deceased in favor of:
3) The surviving brothers and sisters of the deceased, or any of them,
if he left no spouse, child, or parent surviving.
3 In connection with this appeal, Mr. Trahan filed motions to introduce additional exhibits. An
appellate court cannot review evidence that is not in the record on appeal and cannot receive new
evidence. As an appellate court, we have no jurisdiction to receive new evidence. Burniac v.
Costner, 2018- 1709 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 1204, 1208, n.6. Therefore, Mr.
Trahan' s motions are denied. Additionally, the Chabert defendants and Ochsner defendants filed
a joint motion to strike certain exhibits that were included in the appellate record. As no
designation was made, the appellate record contains " all documents filed with the trial court." La.
Code Civ. P. art. 2128. Therefore, we deny the motion to strike, but note that items of evidence
not formally introduced into the record are not properly before us for appellate review and cannot
be considered.
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Louisiana Civil Code article 2315. 2 provides in pertinent part in a wrongful death
action:
A. If a person dies due to the fault of another, suit may be brought by
the following persons to recover damages which they sustained as a
result of the death:
3) The surviving brothers and sisters of the deceased, or any of them,
if he left no spouse, child, or parent surviving.
The right of action created by the wrongful death and survival action may be
extended only to the beneficiaries named in the article and the classes of
beneficiaries must be strictly construed. See Roche v. Big Moose Oil Field Truck
Service, 381 So. 2d 396, 399 ( La. 1980). Pursuant to both of these statutes, the
surviving brother of the deceased can only recover if the deceased left no spouse,
child, or parent surviving. During the hearing on the exceptions of no right of action,
Mr. Trahan testified that his and Kathy' s mother, Mrs. Trahan, was alive and living
in a nursing home. Mr. Trahan stated that Mrs. Trahan was infirm and unable to
understand the litigation, but he acknowledged that she was not interdicted. Because
Mrs. Trahan is alive, Mr. Trahan does not belong to the category of persons who
may bring suit for a survival or wrongful death action arising out of the death of
Kathy. Mrs. Trahan' s poor health is irrelevant as she is the only person allowed to
recover damages in this matter under the statutorily defined groups of Articles
2315. 1 and 2315. 2.
In his brief, Mr. Trahan pointed to an " Affidavit of Right and Authority"
signed by Michael Trahan attached to his petition in favor of his position that he has
a right of action. The affidavit stated that Michael Trahan had the power of attorney
over Mrs. Trahan and that Michael Trahan gave Mr. Trahan the right and authority
to act on behalf of himself, Kathy, and Mrs. Trahan in certain litigation. The
affidavit was limited in scope, and this suit was not listed. Furthermore, there was
no evidence that Michael Trahan' s power of attorney over Mrs. Trahan gave Michael
5
Trahan the authority to pass his power of attorney status to Mr. Trahan. Finally, and
most importantly, Mr. Trahan appears in this suit in his individual capacity and as
representative of Kathy' s estate. He does not appear as a representative of, or on
behalf of, Mrs. Trahan.
Mr. Trahan also argued that he had a right of action as the succession
representative of Kathy' s succession. At the hearing, Mr. Trahan produced no
evidence to prove that he was a succession representative of Kathy' s succession.
Furthermore, even if Mr. Trahan had proven he was a succession representative, he
does not have a right of action under the facts of this case to seek recovery of
damages pursuant to Articles 2315. 1 or 2315. 2. ( See Guffey v. Lexington House,
LLC, 2018- 1568 ( La. 5/ 8/ 19), So. 3d 2019 WL 2041788, holding that
a granddaughter as a succession representative did not have a right of action for
wrongful death or survival damages under La. Civ. Code arts. 2315. 1 or 2315. 2
because members of a more favored class were still alive.) After review of the record
and the arguments made by Mr. Trahan, we agree with the trial court' s finding that
Mr. Trahan has no right of action in this matter.
CONCLUSION
For the foregoing reasons, the judgment of the trial court sustaining the
defendants' exceptions of no right of action is affirmed. Mr. Trahan' s motions to
introduce additional exhibits, as well as Ochsner and the Chabert defendants' joint
motion to strike, are denied. All costs of this proceeding are assessed to plaintiff-
appellant, Norman Paul Trahan.
AFFIRMED; MOTIONS DENIED.
G