In its opinion published on March 14, 2018, the Fifth Circuit Court of Appeal State of Louisiana (“Louisiana Appellate Court”) stated that the Louisiana Medical Malpractice plaintiff, who had filed her Louisiana medical malpractice lawsuit on January 2, 2014, had “introduced absolutely no evidence to support her self-serving allegation that she first learned of potential malpractice on February 4, 2013, or to establish any other date, within one year prior to the filing of her petition, upon which she first learned of potential malpractice.”
The Louisiana Appellate Court held, “[u]nder these circumstances, we are unable to say the trial court was manifestly erroneous in finding that [the plaintiff] discovered facts within a few months of [her daughter’s] death from which she could reasonably conclude that [her daughter] was the victim of medical negligence. Consequently, prescription on these medical malpractice claims had tolled at the latest one year later, in April of 2012. Plaintiffs’ claims, filed on January 2, 2014, are clearly prescribed.”
The Underlying Facts
The plaintiff filed her Louisiana medical malpractice claim on January 2, 2014, pursuant to the provisions of La. R.S. 40:1299.41 et seq., and filed a Petition for Medical Review Panel with the Division of Administration, alleging damages as the result of various acts of medical negligence by the defendants.
The plaintiff alleged a claim for medical malpractice for injuries that she sustained as a result of alleged negligent medical treatment that she received as a patient of the defendants (the plaintiff died on January 6, 2011, three years prior to the filing of the petition that purports to bring an individual claim by her, rather than a proper survival action by her surviving heirs, which error was not challenged by the defendants). The plaintiff’s mother also alleged a wrongful death claim against the defendants based upon the same alleged acts of medical negligence.
The Louisiana medical malpractice petition alleged that the medical negligence occurred during surgeries that the daughter underwent on January 5 and 6, 2011, which ultimately resulted in her death on January 6, 2011. The petition further alleged that the mother did not become aware that her daughter’s death was the result of the surgical procedures and anesthesia until February 4, 2013.
The Louisiana Appellate Court Decision
Louisiana Medical Malpractice Statute Of Limitations
La. R.S. 9:5628(A) provides, in pertinent part, that a medical malpractice claim must be brought ” … 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.”
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. A prescriptive period 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.
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, and such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription.
The Louisiana Appellate Court stated that in the present case, because the Louisiana medical malpractice petition was filed more than a year after the date of the alleged malpractice, it is prescribed on its face and the burden is on the plaintiff to show that it is not prescribed.
In the case the Louisiana Appellate Court was deciding, the plaintiff testified during her deposition that approximately two months after her daughter’s death, she was discussing the death with her own personal physician when she told her about her understanding that her daughter experienced a change in blood pressure during the surgical procedure and that it appeared she had a stroke. The plaintiff testified that her personal physician responded that she has “people walking around with that blood pressure every day.” The plaintiff testified in her deposition that when her personal physician “first said what she said to me, of course a flag kind of went off.”
The Louisiana Appellate Court held that “of course a flag kind of went off” is an acknowledgement that the plaintiff believed that she was being given sufficient information to excite attention, put her on guard and call for inquiry. Furthermore, the plaintiff “introduced absolutely no evidence to support her self-serving allegation that she first learned of potential malpractice on February 4, 2013, or to establish any other date, within one year prior to the filing of her petition, upon which she first learned of potential malpractice.”
Hence, the Louisiana Appellate Court held that it was unable to say the trial court was manifestly erroneous in finding that the plaintiff discovered facts within a few months of her daughter’s death from which she could reasonably conclude that her daughter was the victim of medical negligence.
Source In Re: Medical Review Panel Proceedings In The Matter Of Meagan Boudoin And Sherrie Boudoin versus Ochsner Clinic Foundation, No. 17-CA-488.
If you or a loved one suffered serious harm as a result of medical negligence in Louisiana or in another U.S. state, you should promptly find a Louisiana medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.
The post Louisiana Appellate Court Affirms Medical Malpractice Plaintiff Missed Statute Of Limitations appeared first on Medical Malpractice Lawyers.