Leroy J. Welch v. Baton Rouge General Medical Center

Plaintiff appellant Leroy Welch Welch filed a complaint of medical
malpractice with the Louisiana Patient s Compensation Fund on February
28 2005 pursuant to the requirements of La R S 40 142799 naming as
defendant the appellee in this matter Baton Rouge General Medical Center
BRGMC BRGMC filed a peremptory exception of prescription A
hearing on the exception was continued once and when held the trial cOUli
sustained the peremptory exception and dismissed plaintiff s suit.

Thereafter within the delays allowed by law Welch filed a motion
and order for new trial requesting a rehearing on the exception The trial
cOUli granted the motion and signed the order scheduling the matter for
hearing on Monday February 6 2006 Counsel for BRGMC appeared at the
trial cOUli at the time scheduled however counsel for Welch did not Upon
the trial court inquiring as to whether notice was sent BRGMC s counsel
stated that she had received notice The trial court then allowed the matter to
proceed on the basis that there was notice stating however that my clerk
did not key this matter in for today."

Counsel for BRGMC briefly stated the posture of the case submitting
that the damages occUlTed in August 2003 the claim with the medical
review panel was not filed until February 2005 the claim had clearly
prescribed on its face the trial cOUli had previously granted the exception of
prescription and a motion for new trial had been granted for the trial court
to look at medical records which counsel had supplied The trial court, noting the opposition has not appeared granted the exception of
prescription Judgment so ordering was signed February 16 2006.

Welch appeals this judgment alleging three assignments of error 1
the trial court erred by rendering a final judgment at the rehearing of
appellee s peremptory exception of prescription without appellants counsel
being present 2 the trial court erred in granting appellee s peremptory
exception of prescription because under the doctrine of contra non valentem
appellant s cause of action had not prescribed and 3 the trial court erred in
granting appellee s peremptory exception of prescription because under the
continuous t011 doctrine appellant s cause of action had not prescribed.

Welch s brief asserts that prior to the February 6 2006 hearing on
Friday February 3 2006 a staff member in the trial court s office was
contacted to confirm that the hearing was on the docket This staff member
advised Welch s representative that the matter was not set on the docket A
letter confirming this conversation was faxed to the judge s office on
February 3 2006 After judgment was rendered and the appeal lodged a
motion and order to supplement the appellate record to include this
correspondence was filed Upon being advised by the trial court s office that
the correspondence from Welch s counsel had been sent prior to the
February 6 hearing 1 counsel for BRGMC stated and confirmed in writing
that there was no objection to the record being supplemented The trial com1
ordered the record supplemented This letter however was never entered
into the record.

A court of appeal is not a court of original jurisdiction and has no jurisdiction to receive new evidence Diamond B Construction Company
Inc v Louisiana Department of Transportation and Development 2000
1583 La App 1 Cir 12 22 00 780 So 2d 439 449 writ denied 2001
0246 La 4 20 01 790 So 2d 633 A request to supplement a record should
only include evidence that was considered by the trial court and for some
reason failed to be included in the appellate record See La C C P art
2132 That is not the case here This faxed letter was never considered by
the trial court and was never filed into the record below therefore it is not
in the record before us and cannot be considered as evidence.

However we note that if the letter correctly documents the reason for
the failure of the plaintiff s counsel to appear it is an issue that should be
addressed by the trial court Rule 1 3 Unifonn Rules Comis of Appeal
states:

The scope of review in all cases within the appellate and
supervisory jurisdiction of the Courts of Appeal shall be as
provided by LSA Const Art 5 S 1 O B and as otherwise
provided by law The Comis of Appeal will review only issues
which were submitted to the trial court and which are contained
in specifications or assignments of error unless the interest of
justice clearly requires otherwise.

The interests of justice clearly require that this matter be remanded
Therefore this matter is remanded for the trial comi to allow the faxed letter
and other evidence bearing on the issue of the failure of the plaintiffs
counsel to appear at the hearing to be presented The trial court is to
determine within 45 days ofthe date of this opinion whether the ruling at the
hearing on February 6 2006 should be vacated or allowed to stand The
trial court shall notify this court of its ruling within 10 days of making said
ruling If the trial comi notifies this court that the judgment should be
vacated and a new hearing held this appeal will be dismissed.

Therefore in consideration of the above and pursuant to La C C P
art 2164 this matter is remanded to the trial court for further proceedings.