Nancy v. Jones et al

Filing 13

MEMORANDUM RULING re 7 MOTION for Partial Summary Judgment filed by Sarah Lee. Signed by Judge Robert G James on 8/23/2017. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
NANCY MITCHELL

CASE NO. 17-00687

VERSUS

JUDGE ROBERT G. JAMES

RICKEY A. JONES, ET AL.

MAGISTRATE JUDGE HAYES

RULING
Before the Court is a Motion for Partial Summary Judgment [Doc. No. 7] filed by
Defendant Sarah Lee, M.D. Plaintiff Nancy Mitchell does not oppose the motion. [Doc. Nos.
9, 11]. For reasons set forth below, the motion is GRANTED.
I.

Background
Plaintiff filed suit on May 25, 2017, alleging that, on June 5, 2016, when she was a

pretrial detainee at the Tensas Parish Detention Center (“TPDC”) she fell while exiting a shower
and broke her right arm and wrist. [Doc. No. 1, p. 3]. While she did receive treatment at
Riverland Medical Center, she claims that Defendant failed to arrange “follow-up care.” Id.
As a result, she alleges that her arm and wrist healed improperly and are now permanently
disfigured and disabled. Id. at 4. She asserts several constitutional claims under 42 U.S.C. §
1983 and, of import here, a medical malpractice claim under Louisiana law. Id. at 6-7.
Defendant filed the instant motion on July 25, 2017. Seeking dismissal without
prejudice, Defendant argues that Plaintiff’s state law medical malpractice claim is premature
because a medical review panel has not rendered an opinion on the merits of the claim.1 [Doc.
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Defendant offers undisputed evidence that she is a “Health care provider,” within the
meaning of the Louisiana Medical Malpractice Act, and insured for $100,000.00. [Doc. Nos. 7-

No. 7].
While Plaintiff filed a response to the motion on August 15, 2017, she does not oppose
it.2 [Doc. Nos. 9, 11]. Rather, Plaintiff offers an alternative to dismissal without prejudice: “a
partial stay of the medical negligence action.” Id. at 1. Defendant replied to Plaintiff’s response
on August 16, 2017. The matter is now before the Court.
II.

Law and Analysis
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary

judgment, identifying each claim or defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” The moving party bears the initial burden of informing the court of the basis for
its motion by identifying portions of the record which highlight the absence of genuine issues of
material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ.
P. 56(c)(1) (“A party asserting that a fact cannot be . . . disputed must support the assertion by . . .
citing to particular parts of materials in the record . . . .”). A fact is “material” if proof of its
existence or nonexistence would affect the outcome of the lawsuit under applicable law in the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact

3; 7-4].
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Plaintiff concedes that “she does not contest the facts” in Defendant’s “Statement of
Uncontested Material Facts.” [Doc. No. 11].
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is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the
nonmoving party. Id.
Unless the moving party meets its initial burden, the Court may not grant a motion for
summary judgment even if the motion is unopposed. Hetzel v. Bethlehem Steel Corp., 50 F.3d
360, 362 (5th Cir. 1995). Here, however, since Plaintiff does not set forth any material facts as to
which there exists a genuine issue to be tried, the uncontested material facts listed in Defendant’s
Statement of Uncontested Material Facts [Doc. No. 7-1] are deemed admitted. LR 56.2 (“All
material facts set forth in the statement required to be served by the moving party will be deemed
admitted, for purposes of the motion, unless controverted as required by this rule.”).
B. The Louisiana Medical Malpractice Act
The Louisiana Medical Malpractice Act (“LMMA”) provides that “[n]o action against a
health care provider . . . may be commenced in any court before the claimant’s proposed
complaint has been presented to a medical review panel . . . .” LA. REV. STAT. §
40:1231.8(B)(1)(a)(I). “The Supreme Court of Louisiana has interpreted this provision to not
only require the plaintiff to present the claim to a medical review panel, but also to wait until ‘the
panel has rendered its expert opinion on the merits of the complaint’ before filing suit.” Flagg v.
Stryker Corp., 819 F.3d 132, 137-38 (5th Cir. 2016) (quoting Delcambre v. Blood Sys., Inc., 893
So. 2d 23, 27 (La. 2005)). If the plaintiff fails to comply with the pre-suit exhaustion
requirement, the suit must be dismissed without prejudice. Id.
Here, Plaintiff does not dispute that her claim is subject to the LMMA and the
aforementioned exhaustion requirement. [Doc. No. 9]. Plaintiff also does not dispute that a
medical review panel has yet to render an opinion on the merits of her claim. Id. Instead,
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Plaintiff submits that the Court could stay “the medical negligence action” instead of dismissing
her claim. However, the Court does not find that a stay would serve the interests of justice and
judicial economy.
Considering Defendant’s properly supported motion, as well as Plaintiff’s lack of
opposition, the Court finds that there is no genuine dispute of material fact surrounding whether
Plaintiff’s medical malpractice claim is covered by the LMMA and whether Plaintiff failed to
satisfy Act’s medical review panel exhaustion requirement. Accordingly, Plaintiff’s medical
malpractice claim is premature, and Defendant is entitled to judgment as a matter of law.
III.

Conclusion
For the foregoing reasons, Defendant’s Motion for Partial Summary Judgment is

GRANTED, and Plaintiff’s medical malpractice claim arising under Louisiana law is
DISMISSED WITHOUT PREJUDICE.
MONROE, LOUISIANA, this 23rd day of August, 2017.

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