Gordon Lawrence on Behalf of Dominique Lawrence VS Our Lady of the Lake Hospital, Inc., d./b/a Our Lady of the Lake Regional Medical Center and Dr. Michael A. Frierson
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0849 0 7 9 GORDON LAWRENCE OBO DOMINIQUE LAWRENCE VERSUS OUR LADY OF THE LAKE HOSPITAL AND DR FRIERSON DATE OF JUDGMENT OCT 2 9 2010 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER C581446 DI V 27 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE TODD W HERNANDEZ JUDGE Terry L Bonnie Baton Rouge Louisiana Counsel for Plaintiff Appellant Gordon Lawrence on behalf of Dominique Lawrence Douglas K Williams Chris D Billings Baton Rouge Louisiana Counsel for Defendant Appellee Our Lady of the Lake Hospital dba Our Lady of the Lake Regional Medical Center Herbert J Mang Jr Counsel for Defendant Appellee Tara S Bourgeois Baton Rouge Louisiana Dr Michael A Frierson BEFORE KUHN PETTIGREW AND KLINE JJ Disposition AFFIRMED The Honorable William F Kline Jr is serving pro tempore by special appointment of the Louisiana Supreme Court KUHN J Plaintiff appellant Gordon Lawrence on behalf of the minor child Dominique appeals the district court judgment sustaining peremptory s exceptions raising the objection of prescription filed by defendant appellees Our Lady of the Lake Hospital Inc doing business as Our Lady of the Lake Regional Medical Center OLOL and Dr Michael Frierson We affirm FACTUAL AND PROCEDURAL BACKGROUND Dominique a minor developed scoliosis at a young age On May 31 2004 Dominique underwent a posterior spinal fusion that was performed by Dr Frierson at OLOL The surgery involved the placement of instrumentation including pedicle screws Nearly two years later in February 2006 Dominique developed itching and discoloration over the lower portion of the surgical site Dr Frierson examined her and determined an abscess had developed Dr Frierson described it as a fluctuant area over her lower back in the midline over the incision On February 5 2006 Dominique was admitted to OLOL for treatment by Dr Frierson which included incising and draining the abscess The OLOL discharge summary stated that subsequent to the incision and draining of the abscess area over Dominique spine her wound was draining s minimal tomoderate amounts and had been loosely approximated with retention sutures The summary indicated t family grew increasingly he irritated by her hospital stay and the care that they received and left against 2 The record does not establish the relationship of Mr Lawrence to Dominique Representations of counsel for Mr Lawrence suggest he is her elder brother Because the parties have not challenged his right to bring this lawsuit on behalf of the minor child we presume that he has the legal capacity to proceed on Dominique behalf See La C art 926 s P 2 medical advice OLOL records indicate that the family wanted Dominique to receive medical treatment from Texas Children Hospital in Houston TCH s On January 30 2009 Mr Lawrence filed a petition to impanel a medical review panel naming as defendants OLOL and Dr Frierson The allegations state that Dr Frierson performed surgery on Dominique to correct spinal complications and failed to diagnose used surgical utensils that were not sanitary performed the surgery at the wrong site and used the wrong hardware Thus he averred a medical malpractice had occurred The Patient Compensation Fund PCF Medical Malpractice Compliance s Director subsequently contacted Mr Lawrence and advised of the failure of his petition to provide the dates of the alleged malpractice Mr Lawrence responded with a letter which stated Date of Release OLOL 2 2007 12 Date of Admission TCH 2 2007 12 Released from Doctor Care to Start Rehabilitation 10 s 2007 19 On February 16 2009 Mr Lawrence filed a subsequent petition with the PCF The petition averred Specimens Found Left Behind in Patient and Abstracted The Chief of Staff of TCH Dr William A Phillips MD performed the emergency surgery 1 One Lamina Hook 2 One Additional Screw Cap s See La R La R 40 Holmes v LSU A Conway Med Or 43 pp 45 La S S 1299 47 E 662 App 2d Cir 10 997 So 605 609 permitting a plaintiff to initiate a medical review 08 22 2d proceeding and articulating the criteria necessary to do so 3 SPECIAL NOTE ALL IMPLANTS WERE REMOVE sic INCLUDING TWO RODS 15 SCREWS CAPS AND 15 SCREW Mr Lawrence also alleged that the method of treating the infection was not effective On August 13 2009 OLOL and Dr Frierson filed a motion to assign a suit number to the malpractice claim Mr Lawrence had filed with the PCF Each defendant subsequently filed peremptory exceptions raising the objection of prescription After a hearing on January 11 2010 the district court sustained the exceptions and dismissed Mr Lawrence claims against OLOL and Dr Frierson s A judgment in conformity with the district court ruling was signed on April 14 s 2010 This appeal followed Mr Lawrence contends that the district court erred in concluding that he failed to file suit on behalf of Dominique within one year from the date of discovery of the alleged malpractice DISCUSSION La R 9 addresses actions for medical malpractice providing in S 5628 relevant part A No action for damages for injury or death against any physician or hospital whether based upon tort or breach of contract or otherwise arising out of patient care shall be brought unless filed within one year from the date of the alleged act omission or neglect or within one year from the date of discovery of the alleged act omission or neglect however even as to claims filed within one year from the date of such discovery in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act omission or neglect B The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts 4 This statute sets forth two prescriptive limits within which to bring a medical malpractice action namely one year from the date of the alleged act or one year from the date of discovery La R 9 corresponds with the basic S 5628 one year prescriptive period for delictual actions provided in La C art 3492 but it additionally embodies the discovery rule delineated as the fourth category of the jurisprudential doctrine of contra non valentem within one year from the date of the alleged act omission or neglect or within one year from the date of discovery of the alleged act omission or neglect with the single qualification that the discovery rule is expressly made inapplicable after three years from the act omission or neglect See Campo v Correa 2001 2707 p 9 La 6 02 21 828 So 502 509 Both the one year and threeyear limitation periods of La 2d S 5628 R 9 are prescriptive Borel v Young 20070419 p 29 La 11 07 27 989 So 42 69 2d Burden ofProof Ordinarily the exceptor bears the burden of proof at the trial of the peremptory exception If however the action is prescribed on its face the patient bears the burden of showing that the action has not prescribed Bosarge v Tulane DePaul Behavioral Health Ctr 20091345 p 3 La App 4th Cir 10 19 5 39 So 790 793 accord Vaughn v City ofBaton Rouge 20090930 3d p 3 La App 1st Cir 5 39 So 799 800 On the trial of the prescription 10 26 3d exception pleaded at or prior to the trial of the case evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition La C art 931 The general rule regarding the P s exceptor burden of proof is that a petition should not be found prescribed on its 5 face if it is brought within one year of the date of discovery and facts alleged with particularly in the petition show that the patient was unaware of the 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 Campo 2001 2707 at p 9 828 So at 509 Holmes v LSUE A Conway Med Ctn 43 pp 5 6 La 2d 662 App 2d Cir 10 997 So 605 609 10 08 22 2d We initially note that this matter is before the district court on defendants exceptions filed pursuant to defendants motion to assign a suit number prior to the completion of the review process by the medical review panel See La R S a 2 B 47 1299 40 of the Medical Malpractice Act MMA allowing a health care provider against whom a claim has been filed before a medical review panel to raise the exception of prescription in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel When met with an exception of prescription filed in district court during a pending medical panel review under the MMA the plaintiff is required to prove the defense of contra non valentem as allowed under La R S 5628 9 Holmes 43 at p 9 997 So at 611 662 2d Outstanding Motions Filed on Appeal In support of the contra non valentem defense on appeal Mr Lawrence asks this court to consider his and Dominique affidavit which was filed into the s record prior to the hearing on the exception attached to his memorandum opposing the exceptions of prescription Because the appellate record did not include these items Mr Lawrence filed with this court a motion to supplement the record which was opposed by OLOL and Dr Frierson Additionally OLOL filed a 11 motion to supplement the appellate record with the transcript of the January 11 2010 hearing on the prescription exceptions Because on appeal the record shall be a transcript of all the proceedings see La C art 2128 we have ordered P the supplementation of the record with the January 11 2010 transcript on our own motion Thus we deny as moot OLOL motion to supplement the record s At the hearing Mr Lawrence attempted to have the affidavit placed into evidence OLOL objected asserting that the affidavit was not competent evidence in response to an exception The district court judge specifically asked Mr s Lawrence attorney But the affidavit is of your client who is here today in court correct And the attorney responded Yes sir one of them The district court then sustained the objection to the admission of the affidavit into evidence At the conclusion of the hearing which consisted of the admission of evidence by each of the defendants and the argument of counsel the district court judge expressly asked Does anyone want to be heard Mr Lawrence did not respond The district court judge then noted that it did not receive a written copy of the plaintiffs memorandum in opposition to the exceptions to which counsel for Mr Lawrence stated We filed it judge The district court judge stated that he would take the matter under advisement and review the memorandum in opposition in making his decision Since the record on appeal shall be all documents filed in the district court see La C art 2128 and because the judge considered the opposition P memorandum in making his ruling the motion to supplement the record with the memorandum which apparently attached the affidavit is granted Nevertheless the contents of the affidavit are hearsay evidence and as such the district court 7 correctly concluded the affidavit was inadmissible See Bd of Commissioners of Port of New Orleans v Louisiana Comm on Ethics for Pub Employees 416 n 2d So 231 238 39 La App 1 st Cir writ denied 421 So 248 La 1982 2d Propriety ofthe District Court Ruling on the Merits s As we have already noted it was Mr Lawrence burden of proof to show s that the defense of contra non valentem interrupted or suspended prescription of s Dominique medical malpractice claim We have also concluded that the district court correctly determined that the affidavit of Mr Lawrence and Dominique was inadmissible Insofar as the allegations of the petition that Mr Lawrence filed to impanel the medical review panel those assertions addressing alleged malpractice as a result of the May 31 2004 surgery are clearly prescribed having been filed in excess of three years from the date of the alleged usage of surgical utensils that were not sanitary performance of the surgery at the wrong site and usage of the wrong hardware including one lamina hook and one additional screw cap as averred in the February 16 2009 amended petition he filed with the medical review panel Although the contents of the affidavit are inadmissible because Mr s Lawrence medical malpractice claim is still pending with the medical review panel and he has not had the opportunity to file a petition in district court we are limited to the vague allegations of the defense of contra non valentem contained in his petition invoking a medical review panel for which he was required merely to set forth among other things a brief description of the alleged malpractice as to each named defendant health care provider and a brief description of the alleged injuries See La R 40 and vii And while his counsel S 1299 vi b 1 47A 3 chose not to put on testimony from his client in his original and amended petition filed under the MMA Mr Lawrence contended that Dr Frierson failed to diagnose and that the method of treating the infection was not effective In response to the request for dates of the alleged malpractice by the PCF Mr Lawrence provided February 12 2007 as the date of release from OLOL These allegations alone do not establish a basis for finding that the MMA petition filed on January 30 2009 was timely under La R 9 S 5628 Even if we were to consider the assertions contained in Mr Lawrence s appellate brief see Holmes 43 at pp 89 997 So at 611 we would reach 662 2d the same result In support of his defense of contra non valentem Mr Lawrence admits that he knew something was wrong as early as mid 2006 when symptoms of infection developed He urges however that the defendants informed him that the infection was from a source other than the hardware and suggests that the inaccurate diagnosis continued until February 12 2007 when Dominique was transferred to TCH Mr Lawrence asks this court to conclude that it was i late n 2008 and 2009 that the plaintiff discovered that she had become disabled and would continue to be disabled 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 Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry Such notice is tantamount A While Mr Lawrence also supplied the date of October 19 2007 as the release date Dominique was permitted to start rehabilitation he does not make any assertions either in his petition or in brief relating this date to an alleged malpractice by either OLOI or Dr Frierson As such we find no basis for concluding that October 19 2007 was the date of discovery of the alleged malpractice so as to commence the accrual of prescription under La R 9 S 5628A 9 to knowledge or notice of everything to which a reasonable inquiry may lead Campo 2001 2707 at pp 11 12 828 So at 510 11 Merl Review Panel 2d Proceeding of Williams v Lewis 2008 2223 p 5 La App 1st Cir 5 17 09 13 3d So 26 29 A medical malpractice plaintiff mere apprehension that something may be s wrong is insufficient for prescription to begin running rather the plaintiff s knowledge must rise to the level of constructive knowledge i the plaintiff e either knew or should have known through the exercise of reasonable diligence that his or her problem may have been caused by an act of malpractice Prescription will not run if it was reasonable for the medical malpractice plaintiff not to recognize that the condition might be related to the treatment Campo 2001 2707 at p 12 828 So at 511 Med Review Panel Proceeding of 2d Williams 2008 2223 at p 5 17 So at 29 3d In rendering its ruling the district court judge stated it appears that s plaintiff claims have prescribed Whether we interpret this as a factual determination that Mr Lawrence knew or should have known through the exercise of reasonable diligence that his problem may have been caused by an act of malpractice or as a conclusion that Mr Lawrence failed his burden of proving that he filed his suit within one year from the date of discovery of the alleged malpractice we find no error When prescription is raised by a peremptory exception with evidence introduced at a hearing the district court finding of fact s on the issue of prescription is subject to the manifest error standard of review TIG Ins Co v Louisiana Workers Comp Corp 2009 0330 p 3 La App 1st Cir 9 22 So 981 983 In his appellate brief Mr Lawrence states that 09 11 3d 10 after entering TCH on February 12 2007 he learned that the hardware should be removed An implicit finding by the district court that this was enough to excite Mr Lawrence attention and put him on guard and call for inquiry is not s manifestly erroneous or clearly wrong As such Mr Lawrence had notice tantamount to knowledge or notice of everything to which a reasonable inquiry may lead including of the alleged failure of Dr Frierson to diagnose and the allegedly ineffective method of treating the infection ostensibly by both OLOL and Dr Frierson Thus we may not reverse the district court ruling s DECREE For these reasons the district court judgment sustaining the peremptory exception raising the objection of prescription filed by OLOL and Dr Frierson is affirmed Appeal costs are assessed against plaintiff appellant Gordon Lawrence MOTION TO SUPPLEMENT WITH TRANSCRIPT DENIED AS TO MOTION SUPPLEMENT WITH MOOT OPPOSITION MEMORANDUM GRANTED JUDGMENT AFFIRMED 11
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