Opinion
NO. 2017 CA 1723
05-23-2019
REQUEST FOR MEDICAL REVIEW PANEL BY Cornelius WILSON v. Dr. Rani WHITFIELD, Dr. Michael Stuart and Dr. Charles Bridges
Emily H. Posner, New Orleans, LA, Attorney for Plaintiff-Appellant, Cornelius Wilson Vance A. Gibbs, Randal R. Cangelosi, Jason R. Cashio, Deborah J. Juneau, Baton Rouge, LA, Attorneys for Defendants-Appellees, Dr. Rani Whitfield and, Dr. Michael Stuart John Swanner, Baton Rouge, LA, Attorney for Defendant-Appellee, Dr. Charles Bridges
Emily H. Posner, New Orleans, LA, Attorney for Plaintiff-Appellant, Cornelius Wilson
Vance A. Gibbs, Randal R. Cangelosi, Jason R. Cashio, Deborah J. Juneau, Baton Rouge, LA, Attorneys for Defendants-Appellees, Dr. Rani Whitfield and, Dr. Michael Stuart
John Swanner, Baton Rouge, LA, Attorney for Defendant-Appellee, Dr. Charles Bridges
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM, J. Cornelius Wilson appeals a judgment that sustained exceptions raising the objection of prescription and dismissed his medical malpractice claims against Dr. Rani Whitfield, Dr. Michael Stuart, and Dr. Charles Bridges.
FACTUAL AND PROCEDURAL HISTORY
In February 2015, Mr. Wilson was being held at East Baton Rouge Parish Prison (EBRPP) as a pretrial detainee when he began experiencing problems with his throat. Specifically, Mr. Wilson complained of losing his voice and throat congestion. In order to address his symptoms, he requested medical treatment from EBRPP. From February 24, 2015, to August 31, 2015, Mr. Wilson was treated intermittently by defendants, Dr. Whitfield, Dr. Stuart, and Dr. Bridges, who are private medical physicians that were contracted to provide medical services to inmates at the EBRPP. Sometime prior to April 6, 2015, Mr. Wilson complained through a prison medical services grievance about the care he was receiving for his "lost voice," which was denied.
The record contains EBRPP's response to Mr. Wilson's grievance dated April 6, 2015, but does not contain Mr. Wilson's grievance.
On September 20, 2016, Mr. Wilson filed a request with the Division of Administrative Law for the formation of a State Medical Review Panel ("MRP request"). In his MRP request, Dr. Whitfield, Dr. Stuart, and Dr. Bridges were named as defendants, and Mr. Wilson alleged that defendants failed to provide him with "appropriate medical treatment to prevent the timely discovery and diagnosis of squamous cell carcinoma." In his MRP request, Mr. Wilson complained of treatment for his sore throat given by Dr. Whitfield on February 24, March 18, and April 29, 2015; by Dr. Bridges on May 12, 2015; and by Dr. Stuart on August 14, August 16 and August 31, 2015. Additionally in his MRP request, Mr. Wilson contends that, despite his worsening condition including a sore throat, productive cough, and hoarse voice, the doctors continued to prescribe the same treatment, namely antibiotics, Mucinex, Tylenol, and throat lozenges and did not refer him to a specialist to seek further treatment until August 31, 2015. In his MRP request, Mr. Wilson states that on August 31, 2015, Dr. Stuart conducted an examination of Mr. Wilson and recommended that Mr. Wilson be referred to an ENT specialist. However, when Mr. Wilson was scheduled to be seen by an ENT via TeleMed the video equipment did not work. Thus, Dr. Stuart recommended a face to face appointment, but such appointment "would not occur for months."
Sometime around late October or early November, 2015, Mr. Wilson was transferred from EBRPP to the custody of the Department of Corrections (DOC). According to his MRP request, on February 29, 2016, Dr. Rachel Barry, an otolaryngologist, examined Mr. Wilson and discovered a large tumor on his left vocal cord. The tumor was biopsied, and on March 23, 2016, Mr. Wilson was informed that he had squamous cell carcinoma cancer. On March 31, 2016, Mr. Wilson underwent a total laryngectomy with bilateral neck dissection. Mr. Wilson alleges in his MRP request that the actions and inactions of the doctors were a deviation from the applicable standard of care for treating persons exhibiting the symptoms he was having and their failures regarding his treatment caused him to suffer harm, including extreme pain and suffering and the total removal of his larynx.
Subsequently, pursuant to La. R.S. 40:1231.8(B)(2)(a), which provides that a health care provider may raise the exception of prescription under La. R.S. 9:5628(A) 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, defendants filed exceptions of prescription in 19th Judicial District Court contending that Mr. Wilson's MRP request was prescribed. In their exceptions, defendants stated that the malpractice claims against them are prescribed on the face of Mr. Wilson's MRP request, because he filed his request more than one year after the alleged malpractice. The defendants pointed out that they were qualified health care providers enrolled in the Louisiana Patient's Compensation Fund, which requires that any claims for medical malpractice asserted against them be presented to a Medical Review Panel prior to the filing of the lawsuit.
Dr. Whitfield and Dr. Stuart filed their exception together on June 2, 2017, and Dr. Bridges filed his exception on July 6, 2017.
The defendants' exceptions of prescription came before the trial court on August 14, 2017. After considering the evidence introduced into the record, and the arguments presented by counsel, the trial court signed a judgment on August 24, 2017, maintaining the exceptions of prescription filed on behalf of defendants, and dismissing Mr. Wilson's MRP request with prejudice. It is from this judgment that Mr. Wilson appeals, contending that: (1) the trial court erred in its legal and factual determination that Mr. Wilson's medical malpractice claims against the defendants were prescribed; and (2) the trial court erred in denying Mr. Wilson the opportunity to amend his MRP request to cure the exception of prescription.
In his motion for appeal, Mr. Wilson also sought appeal of the trial court's decision denying his request to amend his MRP request. Mr. Wilson's request to appeal the decision of the trial court not to allow amendment to the MRP request was struck through by the trial court. Mr. Wilson filed a motion to supplement the record with the transcript of that hearing, but because that judgment is not before us on appeal, we deny the motion to supplement the appellate record.
LAW AND ANALYSIS
I. Prescription
In his first assignment of error, Mr. Wilson contends that the trial court erred in determining that Mr. Wilson's medical malpractice claims had prescribed. The prescriptive period for medical malpractice actions is set forth in La. R.S. 9:5628(A), which provides, in pertinent part:
No action for damages for injury or death against any physician ... duly licensed under the laws of this state ... 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.
This statute sets forth two prescriptive limits applicable to medical malpractice claims, namely, one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such claims (if the negligence is not immediately apparent). Verbois v. Taylor, 2015-0240 (La. App. 1st Cir. 12/17/15), 185 So.3d 59, 62, writ denied, 2016-0037 (La. 3/4/16), 188 So.3d 1062, citing Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So.2d 502, 509.
Prescription statutes are strictly construed against prescription and in favor of maintaining the cause of action. Roberts v. USAA Casualty Insurance Company, 2014-0384 (La. App. 1st Cir. 11/7/14), 168 So.3d 418, 420. Thus, if there are two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Id. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception; however, if the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. Lawrence v. Our Lady of the Lake Hospital, 2010-0849 (La. App. 1st Cir. 10/29/10), 48 So.3d 1281, 1285. On the trial of a peremptory 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. Code Civ. P. art. 931. The general rule regarding the exceptor's burden of proof is that a petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the plaintiff 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 plaintiff. Verbois, 185 So.3d at 62 ; Campo, 828 So.2d at 509.
However, when, as in the instant case, the plaintiff is met with an exception of prescription filed in the trial court during the pending medical review panel under the Medical Malpractice Act, the plaintiff is required to prove the defense of contra non valentem as allowed under La. R.S. 9:5628. Verbois, 185 So.3d at 62 ; Lawrence, 48 So.3d at 1285. See also Holmes v. LSU/E.A. Conway Medical Center, 43,662 (La. App. 2d Cir. 10/22/08), 997 So.2d 605, 611-12 (Where alleged acts of malpractice occurred more than a year prior to the request for a medical review panel, the claimants had the burden of proof at an exception of prescription to establish evidence of their late discovery of the negligence, and absent any evidence submitted by the plaintiffs aside from a "vague assertion of discovery four months before the filing of the [Medical Review Panel] Letter," the exception of prescription must be sustained.) See also In re Skipper, 2017-0724 (La. App. 1st Cir. 12/21/17), 2017 WL 6524028, *3 (unpublished).
The doctrine of contra non valentem acts as an exception to the general rules of prescription by suspending the running of prescription when the circumstances of the case fall into one of four categories. Prescription is suspended under the fourth category of contra non valentem when "some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant." Wimberly v. Gatch , 93-2361 (La. 4/11/94), 635 So.2d 206, 211. Commonly known as the discovery rule, this category provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Id.
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 to knowledge or notice of everything to which a reasonable inquiry may lead. Campo, 828 So.2d at 510-11. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. Campo, 828 So.2d at 511. When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment, and there is no effort by the health care provider to mislead or cover up information which is available to plaintiff through inquiry or professional medical or legal advice, then the cause of action is reasonably knowable to plaintiff. Failure to act by a plaintiff for more than one year under these circumstances is not reasonable. Harlan v. Roberts, 565 So.2d 482, 486 (La. App. 2d Cir.), writ denied, 567 So.2d 1126 (La. 1990).
However, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Campo, 828 So.2d at 511. Even if a malpractice victim is aware that an undesirable condition has developed after medical treatment, such knowledge does not equate to knowledge of everything to which inquiry might lead. Campo, 828 So.2d at 512-13. Prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment-related. Campo, 828 So.2d at 511. The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendants' conduct. Campo, 828 So.2d at 511.
When prescription is raised by a peremptory exception, with evidence introduced at a hearing, the district court's finding of fact on the issue of prescription is subject to the manifest error standard of review. Lawrence , 48 So.3d at 1287-88. With the aforementioned principles in mind, we must determine whether the trial court was manifestly erroneous in finding that Mr. Wilson had actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort more than a year before he filed his MRP request.
To determine whether Mr. Wilson had constructive knowledge, the reasonableness of Mr. Wilson's action or inaction, has to be considered in light of his education, intelligence, and the severity of the symptoms. While Mr. Wilson was incarcerated, his symptoms including hoarse voice, throat pain, a productive cough, and trouble swallowing began in February of 2015. Mr. Wilson filed multiple prison medical services grievances complaining about the treatment he was given and seeking additional treatment for his symptoms. Also, on October 14, 2015, Mr. Wilson filed in federal court a complaint under 42 U.S.C. § 1983, the Civil Rights Act, alleging that Dr. Bridges and Dr. Whitfield failed to provide adequate medical care to him and naming them as well as many others as defendants. The trial court relied on an April 6, 2015 response to Mr. Wilson's medical grievance in which it was noted that Mr. Wilson was complaining that the treatment for his "lost voice" was not working and Mr. Wilson's October 14, 2015 federal court complaint to conclude that "[c]learly in April of 2015, and more particularly in October of 2015, when [Mr. Wilson's] medical malpractice claim [was filed] in [federal] district court, he was on notice, and was on notice some time prior to filing that suit in October—certainly before September 20th 2015." While we agree with the trial court that Mr. Wilson complained about the medical treatment he was receiving from the defendants for more than one year prior to September 20, 2015, his complaints were primarily for the purpose of seeking additional treatment because he alleged that what he was prescribed was not working. Specifically, on April 11, 2015, Mr. Wilson complained that he was not being treated properly and that he was prescribed the wrong dosage of medicine, and on August 7, 2015, Mr. Wilson again noted that the medicine he was being prescribed was not working. We are mindful not to conflate Mr. Wilson's attempts to seek additional treatment with knowledge of medical malpractice.
It was not until February 29, 2016, when Dr. Barry discovered the large tumor on Mr. Wilson's left vocal cord that Mr. Wilson was on notice that the actions and inactions of the doctors may have resulted in a delayed discovery of his tumor. As pointed out in Campo, Mr. Wilson's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Campo, 828 So.2d at 511. The evidence revealed that Mr. Wilson may have had enough information to incite curiosity and put a reasonable minded person on guard that something was wrong; however, he was unable to investigate further what that might be. Mr. Wilson, as an inmate, was without ability to schedule appointments with a specialist or seek a second opinion and had to rely solely on the medical services provided to him by the parish prison. Mr. Wilson's actions must be considered in light of his incarceration. Mr. Wilson repeatedly asked for additional medical attention while he was in EBRPP for over nine months, but his tumor was discovered only after he was taken to a specialist that could properly examine his throat. Although the record reveals that Mr. Wilson was frustrated with the care he was receiving for more than a year before he sought a medical review panel, it was reasonable for Mr. Wilson to not know until his tumor was discovered that the actions and inactions of the doctors may have resulted in a delayed diagnosis of Mr. Wilson's squamous cell carcinoma. By the time Mr. Wilson was diagnosed with cancer, it had advanced to a stage that required a total laryngectomy and the permanent loss of his vocal cords.
Considering the strict construction due prescription statutes and Mr. Wilson's inability to make his own appointments or seek a second opinion due to his imprisonment, we find that trial court was manifestly erroneous in granting defendants' prescription exceptions. Mr. Wilson exercised reasonable diligence to the best of his ability to determine if something further was wrong with him, and it was reasonable for Mr. Wilson to not be aware that he may have been a victim of a tort until February 29, 2016, when Dr. Barry discovered the large tumor on his left vocal cord. Thus, the date Mr. Wilson discovered the alleged act, omission, or neglect was February 29, 2016, less than one year prior to Mr. Wilson's MRP request filed on September 20, 2016.
Having found merit to Mr. Wilson's first assignment of error, we did not address Mr. Wilson's second assignment of error.
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CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court granting defendants' peremptory exceptions raising the objection of prescription. The matter is remanded for further proceedings. All costs of this appeal are assessed to Dr. Rani Whitfield, Dr. Michael Stuart, and Dr. Charles Bridges.
REVERSED AND REMANDED; MOTION TO SUPPLEMENT THE RECORD DENIED.
McClendon, J. concurs for reasons assigned.
McClendon, J., concurring.
Based on the record before us and the unique circumstances presented, I concur with the result reached by the majority.