Linda Doe VS Delta Women's Clinic of Baton Rouge and Dr. A. James Whitmore
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1776 LINDA DOE VERSUS DELTA WOMEN CLINIC OF BATON ROUGE AND S DR A LAMES WHITMORE 1 VV On Appeal from the Nineteenth Judicial District Court Parish of East Baton Rouge Louisiana Docket No 500 Division A 251 Honorable Todd W Hernandez Judge Presiding Jasper S Brock I4 Stewart Brock Attorney for PlaintiffAppellant Livingston LA Linda Doe Yigal Bander Attorney for Defendant Appellee Kleinpeter Schwartzberg LLC Baton Rouge LA Delta Clinic of Baton Rouge Inc BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered APR 3 0 2010 PARRO J Linda Doe appeals a judgment in favor of Delta Clinic of Baton Rouge Inc sustaining its peremptory exception raising the objection of prescription and dismissing her suit with prejudice For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND On April 1 1999 Dr A James Whitmore performed a second trimester abortion on Linda Doe at Delta Clinic of Baton Rouge Inc Delta The procedure was completed at 5 p and in the recovery room Ms Doe lost 10 m a lot of blood Despite multiple doses of clotting medications the severe bleeding persisted and her blood pressure level dropped dangerously low According to her petition she was transported to a local hospital for emergency surgery about 10 p During that procedure it was discovered that as a 30 m result of the abortion Ms Doe had a laceration of the right uterine wall that extended into the uterine artery causing the profuse bleeding She was transfused with eight units of packed red blood cells and two units of fresh frozen plasma and underwent a total abdominal hysterectomy On July 30 1999 Ms Doe filed a Petition for Discovery in the Twenty First Judicial District Court 21st JDC Parish of Livingston pursuant to the Medical Malpractice Act LSAR 40 et seq S 1299 41 This proceeding was assigned docket number 86 255 and assigned to division B of that court On March 21 2002 in the same court and under the same docket number she filed a petition for damages for medical malpractice naming Delta and Dr Whitmore as defendants The petition was served on Ms Monica Frois an attorney on April 2 2002 Ms Frois had participated in discovery on behalf of both of the named defendants during the discovery phase of this litigation and had informed Ms Doe attorney in a letter dated June 15 1999 that she s 1 The plaintiff elected to use this alias in order to protect her personal identity Z The defendant was incorrectly designated in the petition as Delta Women Clinic of Baton s Rouge 2 represented Delta and that all contact with Delta should be made through her However when Ms Frois was served with the petition for damages on April 2 2002 she immediately wrote Ms Doe attorney advising that she did not s represent either of the defendants and that the service on her was erroneous In response to Ms Doe petition Delta filed declinatory exceptions of s insufficiency of service of process and improper venue a dilatory exception of vagueness and peremptory exceptions of prescription and no cause of action After a hearing in the 21st JDC the court found in favor of Ms Doe and against Delta with respect to the declinatory exception of insufficiency of service of process however the declinatory exception of improper venue was sustained and the case was ordered transferred to the Nineteenth Judicial District Court 19th JDC Parish of East Baton Rouge The 21st JDC declined to consider the remaining exceptions because it concluded those should be heard by the transferee court On June 1 2009 a hearing was held in the 19th JDC on the peremptory exception of prescription after which the court sustained the exception and dismissed Ms Doe suit at her cost s A judgment incorporating this ruling was signed June 22 2009 and Ms Doe appealed According to Louisiana Civil Code article 3462 prescription is interrupted by the filing of suit within the prescriptive period in a court of competent jurisdiction and venue however if the action is commenced in an incompetent court or in an improper venue prescription is interrupted only as to a defendant served by process within the prescriptive period 4 5251 See also LSA C art P In this case because Ms Doe petition for damages was filed in an s improper venue prescription would only be interrupted if Delta was served by process within the prescriptive period Delta argues that because it is a corporation service of process had to be made on its designated agent for service of process pursuant to LSAC P C 3 art 1261 It claims that Ms Frois was not its registered agent for service of A process and therefore service on her could not interrupt the running of prescription However the judge in the 21st JDC ruled that service was sufficient in this instance and that ruling was not challenged Moreover under the circumstances of this case in which a legal proceeding had already commenced and the person upon whom service was made had participated in that legal proceeding and had specifically stated that she was the defendant s attorney we agree that the service on her as Delta attorney of record was s proper See Grantham v Dawson 27 La App 2nd Cir 1 666 798 96 24 2d So 1241 1245 46 writs denied 96 La 3 670 So 1230 0459 96 29 2d and 96 0487 La 3 670 So 1228 96 29 2d However the question of the timeliness of that service still remains Ms s Doe suit is based on LSAR 9 which states S 2800 12 A Any person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion which action survives for a period of three years from the date of discovery of the damage with a peremptive period of ten years from the date of the abortion B For purposes of this Section 1 Abortion means the deliberate termination of an intrauterine human pregnancy after fertilization of a female ovum by any person including the pregnant woman herself with an intention other than to produce a live birth or to remove a dead unborn child 2 Damage includes all special and general damages which are recoverable in an intentional tort negligence survival or wrongful death action for injuries suffered or damages occasioned by the unborn child or mother 3 Unborn child means the unborn offspring of human beings from the moment of conception through pregnancy and until termination of the pregnancy C 1 The signing of a consent form by the mother prior to the abortion does not negate this cause of action but rather reduces the recovery of damages to the extent that the content of the consent form informed the mother of the risk of the type of injuries or loss for which she is seeking to recover 2 The laws governing medical malpractice or limitations of liability thereof provided in Title 40 of the Louisiana Revised Statutes of 1950 are not applicable to this Section 4 The statute itself recognizes the discovery rule embodied in the contra non valentem doctrine 474 La 1991 See In re Medical Review Panel of Howard 573 So 472 2d The key inquiry in most contra non valentem cases is the commencement date of the prescriptive period under the discovery rule The doctrine itself is based on the theory that when the claimant is not aware of the facts giving rise to his or her cause of action against the particular defendant the running of prescription is for that reason suspended until the tort victim discovers or should have discovered the facts upon which his or her cause of action is based It is often difficult to identify a precise point in time at which the claimant becomes aware of sufficient facts to begin the running of prescription Id Constructive knowledge sufficient to commence the running of prescription requires something more than a mere apprehension that something might be wrong Cordova v Hartford Accident 2d So 574 579 La 1980 Indem Co 387 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 2d So 828 830 La 1979 Louisiana Civil Code article 3456 states that if a prescriptive period consists of one or more years prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription Thus in this case if the date of the commencement of prescription was April 1 1999 the threeyear prescriptive period would accrue on April 1 2002 However if prescription commenced to run on April 2 1999 service on April 2 2002 would serve to interrupt prescription See Richardson y Say 31 La App 2nd Cir 7 740 So 771 773 writ denied 989 99 22 2d 99 2493 La 11 749 So 677 cert denied 529 U 1100 120 S 99 19 2d S Ct 1836 146 L 779 2000 2d Ed When an exception of prescription is filed ordinarily the burden of proof is on the party pleading prescription See Lima v Schmidt 595 So 624 628 2d 5 La 1992 However the plaintiff has the burden of proving an interruption or suspension of the prescriptive period when his action has prescribed on the face of his petition See Clark v Wilcox 042254 La App 1st Cir 12 05 22 928 So 104 109 n writ denied 060185 La 6929 So 1252 In 2d 4 06 2 2d this case since the petition states that the abortion procedure that caused Ms s Doe damages was completed at 5 p on April 1 1999 and service was 10 m not made until April 2 2002 Ms Doe has the burden of proving an interruption or suspension of the prescriptive period Ms Doe argues that she was either unconscious or barely conscious after the abortion on April 1 and did not discover the damage until April 2 1999 after she recovered from the emergency surgery performed on April 1 1999 Therefore she contends that the prescriptive period did not commence until April 2 1999 and service on Ms Frois on April 2 2002 was timely In her brief to this court she refers to medical records from the emergency room of Baton Rouge General Medical Center where she was taken for the emergency surgery However the record sent to this court does not contain any medical records from Baton Rouge General Medical Center The only medical information in evidence is from Delta records where the last entry occurred at s 30 m 8 p on April 1 1999 showing that an emergency medical technician obtained a blood pressure level of 70palpitation prompting the decision to send her to the nearest hospital for emergency treatment An earlier notation at 8 p states pt easily aroused m The prescriptive period for a medical malpractice claim commences upon the occurrence of the injury when the damages are immediately apparent Johnson v Shafor 082145 La App 1st Cir 7 22 So 935 938 writ 09 29 3d denied 091921 La 11 25 So 812 09 20 3d Furthermore prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort Campo v Correa 01 2707 La 6 828 So 502 510 Constructive knowledge 02 21 2d 0 is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead Medical Review Panel Proceeding of Williams v Lewis 082223 La App 1st Cir 5 17 So 09 13 3d 26 29 The medical records from Delta show that Ms Doe began passing numerous blood clots shortly after the abortion procedure was completed and she continued to bleed profusely over the course of several hours in spite of being given clotting medications Those records also indicate that she was awake and responsive at least part of the time she sat up and vomited at 8 m p By this time she must have known that something had gone wrong with the abortion Although she may not have known precisely what kind of damage had occurred or the full extent of that damage she certainly had enough information at that point to know that her problems were very likely caused by some flaw in the abortion procedure Delta records show that Ms s Doe had had three previous abortions therefore she was quite familiar with the normal course of postoperative recovery Ms Doe did not provide any evidence to show that she was unconscious or did not know about the bleeding problems she was experiencing after the abortion on April 1 1999 Therefore we conclude that she failed to carry her burden of proving that she discovered the damage on April 2 1999 and that an interruption of prescription occurred by service of process on Delta on April 2 2002 CONCLUSION For the foregoing reasons we affirm the June 22 2009 judgment dismissing Ms Doe claims against Delta All costs are assessed against Ms s Doe AFFIRMED 7
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