Louisiana Record

Monday, November 18, 2019

Medical malpractice suit dismissed, sent back to lower court


By Takesha Thomas | Sep 22, 2018

Louisiana Court of Appeals dismisses medical malpractice suit | morguefile

NEW ORLEANS — An appeal filed by the family of a woman who died in 2010 after receiving care has been dismissed by a Louisiana appeals court.

The family of Elaine Kirt's claim that she died after receiving care from several medical professionals. But the matter has now been dismissed because, according to court documents, attorneys for Kirk's family didn't file the appeal in a timely manner. The Louisiana State Court of Appeal Fourth Circuit Civil District Court, Orleans Parish made the ruling on Sept. 7. 

Elaine Kirt's three sons, Neville Kirt, Alvin Kirt and Lamont Kirt, filed the suit in 2011 against Rebecca Metzinger, M.D., Theodore C Strickland III, M.D., administrators of the Tulane Educational Fund, Pauline Taquino, CRNA, Gayle Martin, CRNA, and Parish Anesthsia Associates. 

Elaine Kirt died on Sept. 28, 2010, after "receiving medical care from the defendants". The family had filed a request for the "formation of a medical review panel". 

Additionally, the family filed a "petition for damages" in the matter claiming that negligence caused Kirt's death, according to the lawsuit. In that filing, three of the defendants were dismissed on summary judgment, court documents say. 

In a November 2017 trial, the courts "rendered judgement granting the exception of prescription."

The remaining three defendants filed an exception of prescription challenging the inadequate payment of fees to the Louisiana Patient’s Compensation Fund, according to court documents. 

The appeals court found that her family did not file the appropriate paperwork in time to apply for a new trial. Court documents say the family only filed the appropriate payment for five defendants, not six, and failed to do so "in a timely manner." 

 "The judgment was signed on Nov. 15, 2017. The delay for applying for a new trial expired on Nov. 22, 2017, and the motion for appeal was filed on Jan. 12, 2018," according to court paperwork.

The matter was remanded back to a lower court.

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