Betty Casborn, Wife of/and Adam Casborn VS William Curran, M. D. and Northshore Regional Medical Center
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1914 BETTY CASBORN wife of ADAM CASBORN and VERSUS I WILLIAM CURRAN M and NORTHSHORE D REGIONAL MEDICAL CENTER Judgment rendered OCT 1 4 2010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana Number 2008 13138 Division E The Honorable William J Burris Judge Presiding Sharry I Sandler Counsel for PlaintiffAppellant New Orleans Louisiana Betty Casborn wife ofand Adam Casborn Mark W Verret Counsel for Defendant Appellee Brett M Bollinger Northshore Regional Medical Jeff S Valliere Center L d b a Northshore C Metairie Louisiana Regional Medical Center BEFORE GAIDRY MCCLENDON AND KLINE JJ 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court KLINE J Plaintiffs Betty and Adam Casborn hereinafter Casborn appeal a judgment rendered in the trial court sustaining an exception of prescription filed by defendant NorthShore Regional Medical Center C L dba NorthShore Regional Medical Center hereinafter NorthShore The issue in this medical malpractice case is whether plaintiffs cause of action was prescribed because Casborn claimed in the complaint that suit was filed within one year from plaintiffs date of discovery but more than one year after the alleged negligent act For the following reasons we affirm the trial courtjudgment FACTS AND PROCEDURAL HISTORY At 4 a on Saturday May 5 2007 Mrs Casborn presented to the 00 m NorthShore emergency room because her tongue was swelling and she was having trouble breathing Mrs Casborn was examined by the staff physician William Curran M who administered the medication Benadryl An hour later at about D 5 a Dr Curran again examined Mrs Casborn She was given a sedative Mrs m s Casborn tongue continued to swell and she had more difficulty breathing At 00 m 7 a she was taken into surgery to have a mechanical ventilator inserted the ventilator remained until May 18 2007 Her hospital stay however lasted nearly a month because she developed other complications including pneumonia anemia and acute renal problems On May 23 2008 Casborn filed a medical malpractice complaint alleging that Dr Curran failure to administer the proper medication in the face of an acute s allergic reaction was a breach in the medical standard of care Since the suit was filed more than one year after the date of the alleged negligence Casborn contends that the prescriptive period did not begin to run until the ventilator was removed and Mrs Casborn had regained her ability to speak Casborn alleges in the petition 2 Dr Curran is a defendant in companion suit 42009CA 915 2 that Mrs Casborn did not discover the malpractice until a time frame of between May 24 2007 and June 1 2007 when she could ask questions The petition includes the following allegation Between May 24 2007 and June 1 2007 as she regained her ability to speak BETTY CASBORN inquired into the events which caused her tongue to swell and her loss of consciousness At that time she learned that the swelling in her tongue was caused by an acute allergic reaction to medication Ms CASBORN also learned at that time that a possible breach in the standard of care occurred because she was not administered proper medication in the face of an allergic reaction and because she was made to wait for approximately over two hours or until she passed out from her inability to breathe before she was intubated NorthShore filed an exception of prescription alleging that the cause of action was prescribed on the face of the pleading since the alleged malpractice occurred on May 5 2007 and the petition was not filed until May 23 2008 The trial court ruled in NorthShore favor in its written reasons the trial court found s that Mrs Casborn claim arose from Dr Curran failure to recognize the s s emergency nature of her situation when she arrived at the hospital on May 5 2007 and that she did not file a complaint until May 23 2008 more than one year after she presented to the emergency room The trial court stated that Mrs Casborn s ventilator was removed on May 18 2007 but that she claimed to not have had knowledge or constructive notice of the alleged negligence until the time period between May 24 and June 1 2007 In its reasons the trial court stated that pursuant to La R 9 and Stansbury v Accardo 03 2691 La 1 Cir S 5628 App 04 29 10 896 So 1066 and Campo v Correa 01 2707 La 6 828 2d 02 21 2d So 502 because prescription was evident on the face of the petition the burden shifted to plaintiff to show the action had not prescribed Judgment was rendered 3 Casborn appealed alleging in pertinent part that the trial court erred in the following 1 In holding that she did not timely file her medical malpractice complaint when she filed on May 23 2008 which was less than a year from the time that she discovered an act of malpractice had occurred 2 In determining that the Doctrine of Contra Non Valentem does not apply as the extent of her injuries rendered her unable to deduce that an act of malpractice had occurred 3 In sustaining defendant exception of prescription when all of the cited s cases are distinguishable from the facts of this case DISCUSSION Louisiana Revised Statutes 9 A provides in pertinent part that no 5628 action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort Campo v Correa 01 2707 pp 11 12 828 So at 510 A prescriptive period 2d will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same Id Constructive knowledge is notice sufficient enough to excite attention and put the injured party on guard and call for inquiry Id Prescription does not run against one who is ignorant of the facts upon which his cause of action is based as long as such ignorance is not willful negligent or unreasonable Young v Clement 367 So 828 830 La 1979 Thus a petition should be found not 2d to have prescribed on its face if it is brought within one year of the date of 3 Northshore filed a motion for sanctions and dismissal of appeal for plaintiffs repeated failure to abide by the deadlines established by this Court 1 sanctions requested by Northshore do not appear to be warranted under this he rule and are therefore dismissed 4 discovery of the facts alleged with particularity in the petition which show that the patient was unaware of malpractice prior to the alleged date of discovery and the delay in filing suit was not due to willful negligent or unreasonable action of the patient See Campo 012707at p 9 828 So at 509 Emphasis added 2d Here the allegations in Casborn petition do not allege with particularity s why Mrs Casborn was unaware of the malpractice prior to the date of the alleged discovery Mrs Casborn claims in her medical review complaint that she inquired about the cause of her condition as soon as she was able to do so No testimony or evidence was presented at the hearing before the trial court The trial court noted in its reasons that on May 5 2007 Mrs Casborn was placed on a ventilator where she remained until May 18 2007 but that she did not file her complaint until May 23 2008 The trial court further noted that Iprescription is evident on the face f of the petition the burden shifts to plaintiff to show the action was not prescribed Based upon the facts presented the trial court granted the defendant sexception of prescription While we recognize that prescriptive statutes are strictly construed and are to be interpreted in favor of maintaining an action we must conclude under the facts alleged in the medical review complaint that the matter is prescribed See Oil Insurance Limited v Dow Chemical Company 07 0418 p 5 La 1 Cir App 07 2 11 977 So 18 21 22 writ denied 07 2319 La 2 976 So 2d 08 22 2d 1284 Accordingly the trial court judgment is affirmed DECREE For the foregoing reasons the judgment of the trial court is affirmed The costs of this appeal are assessed to plaintiffs appellants Betty and Adam Casborn AFFIRMED 5
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