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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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,

(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,

- 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

(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,

(La.App. 2 Cir. 1998).

Louisiana’s Fifth Circuit has agreed with this reasoning. See

Sarcer v. Strand,

(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.,

(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,

(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,

. 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,

(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,

(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