KELLY GAUTIER v. DR KIMBERLY HODGE AND NORTH OAKS MEDICAL CENTER (2025)

A patient filed a medical review panel request asserting medical malpractice claims against a physician and hospital. The defendants responded with exceptions of prescription. The trial court granted the exceptions and dismissed the patient's claims and medical review panel proceeding with prejudice. The patient appeals from the adverse judgment. After review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 3, 2023, Kelly Gautier filed a Medical Review Panel Request (MRP Request) with the Patient's Compensation Fund seeking review of her malpractice claims against Dr. Kimberly Hodge and North Oaks Medical Center. In her MRP Request, Ms. Gautier alleged that, in January 2019, Dr. Hodge performed surgery at North Oaks Medical Center to remove both of her ovaries, but only fully removed the left ovary; and, in November 2021, Dr. Hodge performed a second surgery, but again failed to fully remove Ms. Gautier's right ovary. According to Ms. Gautier's MRP Request, she “found out that she still had an ovary in March 2022,” and a different physician later performed a third surgery to “fix the problem.” The third surgery took place on April 7, 2022.

Dr. Hodge and North Oaks Medical Center filed exceptions of prescription in the Twenty-First Judicial District Court.¹ Ms. Gautier opposed the exceptions. The trial court held a hearing on the matter at which Ms. Gautier testified and Dr. Hodge introduced documentary evidence. On February 27, 2024, the trial court signed a judgment granting the exceptions of prescription and dismissing Ms. Gautier's claims and pending medical review panel proceeding against Dr. Hodge and North Oaks Medical Center with prejudice. In oral reasons for judgment, the trial court stated that the applicable one-year prescriptive period began to run on Ms. Gautier's claims: (1) as early as March 6, 2022, when she presented to Baton Rouge General Medical Center Emergency Room with complaints of abdominal pain and when medical scans revealed she still had a right ovary, and (2) at least by March 21, 2022, when she consulted Dr. Cowan, the physician who performed the third surgery. The trial court stated that, counting from either date, Ms. Gautier's MRP Request, filed on April 3, 2023, was untimely.

Ms. Gautier devolutively appealed the adverse judgment, contending the trial court erred in determining her claims were prescribed.² She claims the trial court failed to consider the “continuing treatment rule,” which she claims delayed the running of prescription in this case, and the trial court should have found her MRP Request timely, because prescription did not begin to run until April 7, 2022, the date Dr. Cowan performed the third surgery.³

DISCUSSION

Medical malpractice claims are subject to a one-year prescriptive period, meaning such claims must be filed within one year from the date of the alleged art or within one year from the date of discovery of the alleged art. See La. R.S. 9:5628.⁴ However, regardless of the date of discovery, all claims must be filed within three years from the date of the alleged art. Id. Prescription begins when a plaintiff obtains actual or constructive knowledge of farts indicating to a reasonable person that he is the victim of a tort. In re Doe, 2021-1258 (La. App. 1 Cir. 6/14/22), 344 So.3d 652, 654, writ not considered, 2022-01094 (La. 10/18/22), 348 So.3d 732.

When a prescription exception is filed during the pendency of the medical review panel proceeding, as is the case here, the MRP request is considered the petition to be reviewed for timeliness. Doe, 344 So.3d at 654. Ordinarily, the exceptor bears the burden of proof at the trial of the prescription exception; however, if the action is prescribed on its face, the plaintiff bears the burden of showing that his action has not prescribed. Id. Further, if the plaintiff relies on La. R.S. 9:5628’s contra non vaientem defense, the plaintiff must prove that defense - i.e., that he was unaware of the malpractice before the alleged date of discovery, and his delay in filing suit was not due to his willful, negligent, or unreasonable action. Id. One way he can prove such is to demonstrate the applicability of the “continuing treatment rule,” under which prescription is suspended if the plaintiff demonstrates the existence of a continuing treatment relationship with the physician, which is more than perfunctory, during which the physician's conduct was designed to prevent the patient from asserting a claim, whether it be in the form of concealment, misrepresentation, fraud, or ill practices. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 2021-00061 (La. 12/10/21), 333 So.3d 368, 378; see Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So. 2d 1261, 1269. When evidence is introduced at the hearing on a prescription exception, an appellate court reviews a trial court's factual determinations under the manifest error standard of review. Doe, 344 So.3d at 654.

Herein, at the hearing on the prescription exceptions, Dr. Hodge introduced Ms. Gautier's MRP Request; Ms. Gautier's excerpted deposition testimony; medical records related to the two surgeries Dr. Hodge performed; medical records from two emergency room visits Ms. Gautier made in June 2020 and in March 2022, respectively; and, a medical record from a physician Ms. Gautier consulted between Dr. Hodge's first and second surgeries. In opposition to the exceptions, Ms, Gautier testified on her own behalf but introduced no documentary evidence.⁵

The evidence reveals the following relevant chronology of events. Dr. Hodge performed the first surgery to remove Ms. Gautier's ovaries on January 11, 2019. On June 24, 2020, Ms. Gautier reported to the Our Lady of the Lake Regional Medical Center emergency room with abdominal pain and was diagnosed with a right ovarian cyst. On July 14, 2020, Ms. Gautier saw Dr. Hodge and told her about the right ovarian cyst. At that time, Dr. Hodge suspected right “ovarian remnant syndrome,” a known risk of the first surgery, which had been disclosed to Ms. Gautier. Dr. Hodge referred Ms. Gautier to a specialist to evaluate her endometriosis and a possible second right ovary removal surgery, but Ms. Gautier did not see the specialist apparently due to insurance coverage issues. On August 27, 2020, Ms. Gautier saw a second physician, Dr. Rhandi Wise, for evaluation of pelvic pain and a reported right ovarian cyst; Ms. Gautier told Dr. Wise the right ovary caused her daily pain and she wanted it removed. At a January 27, 2021 telemedicine visit, Ms. Gautier told Dr. Hodge she wanted her right ovary removed. At an October 12, 2021 visit, Dr. Hodge discussed the “technically challenging” first surgery, the risks associated with a second surgery, and offered the alternative of managing Ms. Gautier's symptoms with medication. According to Dr. Hodge's records, Ms. Gautier was “adamant” that she wanted the second surgery. After Ms. Gautier signed consent forms acknowledging the risks associated with the second surgery (including failure to remove the entire ovary), Dr. Hodge performed the second surgery on November 10, 2021, during which she found “no evidence of ovaries.” At a December 15, 2021 follow up visit, Dr. Hodge told Ms. Gautier that the second surgery revealed small bowel adhesions but “no evidence of endometriosis or ovary.” However, on March 6, 2022, when Ms. Gautier presented to the Baton Rouge General Medical Center emergency room with complaints of abdominal pain, CT and ultrasound testing showed that she still had a right ovary and the ovary contained a hemorrhagic cyst.

In her MRP Request, Ms. Gautier admitted that she found out she had a right ovary on March 6, 2022. In her November 17, 2023 deposition, Ms. Gautier again admitted that she knew she still had a right ovary as of the March 6, 2022 emergency room visit, as shown by the following testimony:

[DEFENSE COUNSEL]: On March 6 of 2022, did you go to the emergency department at Baton Rouge General?

[MS. GAUTIER]: Yes.

* * * *

[DEFENSE COUNSEL]: [W]hat brought you to the emergency department?

[MS. GAUTIER]: I was having abdominal pains in my stomach again.

[DEFENSE COUNSEL]: Do you remember anything the doctors told you during that emergency department visit?

[MS. GAUTIER]: Yes, that I had a right ovary.

* * * *

[DEFENSE COUNSEL]: When he told you [that] you had a right ovary, did he tell you it showed up on any scans?

[MS. GAUTIER]: Yes.

[DEFENSE COUNSEL]: What did he tell you the scans showed?

[MS. GAUTIER]: That I had a right ovary.

* * * *

[DEFENSE COUNSEL]: Have you ever talked to Dr. Hodge since March 6, 2022?

* * * *

[MS. GAUTIER]: I don't know if I called her or not. At that point being so frustrated I probably wanted a new doctor to be honest with you. I truly don't know if I called back, I don't remember.

[DEFENSE COUNSEL]: And you were frustrated because you felt Dr. Hodge had not done the proper procedure?

[MS. GAUTIER]: Yes.

[DEFENSE COUNSEL]: And you felt that way on March 6, 2022?

[MS. GAUTIER]: Yes.

[DEFENSE COUNSEL]: And on March 6, 2022, did you feel you needed a new doctor?

[MS. GAUTIER]: Yes.

* * * *

[DEFENSE COUNSEL]: Did Dr. Hodge contact you at any point after March 6, 2022?

[MS. GAUTIER]: Not to my knowledge, no.

At her deposition, Ms. Gautier also testified that, after her March 6, 2022 visit to the Baton Rouge General Medical Center Emergency Room, Dr. Terry Thomas at Woman's Hospital ordered an ultrasound that confirmed she still had a right ovary and then referred her to Dr. Cowan. Ms. Gautier admitted that, when she first saw Dr. Cowan, on March 21, 2022, she knew she still had a right ovary. According to Ms. Gautier, Dr. Cowan performed the third surgery, successfully removing her entire right ovary, on April 7, 2022.

After review, we find the trial court did not err in concluding that prescription began to run on Ms. Gautier's claims on March 6, 2022 and that her MRP Request, filed on April 4, 2023, was prescribed.

First, we reject Ms. Gautier's argument that the continuing treatment rule suspended prescription in this case. The record shows that the physician-patient relationship between Dr. Hodge and Ms. Gautier ended on December 15, 2021, the last time Dr. Hodge saw Ms. Gautier. After Ms. Gautier discovered she still had a right ovary on March 6, 2022, she did not return to Dr. Hodge for treatment. Thus, after March 6, 2022, there was no continuing relationship during which Dr. Hodge could have acted to prevent Ms. Gautier from asserting her malpractice claim within one year, whether that would have been by “concealment, misrepresentation, fraud, or ill practices.” See Mitchell, 333 So.3d at 378. This argument has no merit.

Next, we also reject Ms. Gautier's argument on appeal that she “could not be certain that she had an ovary until the third surgery[,] which was performed by Dr. Cowan on April 7, 2022[.]” The trial court heard Ms. Gautier testify at the exception hearing, including her repeated admissions that, as of March 6, 2022, she knew she still had a right ovary. Considering Ms. Gautier's plain testimony, along with the medical records that corroborate her testimony, we conclude the trial court did not manifestly err in finding Ms. Gautier should have known of her claim against Dr. Hodge as early as March 6, 2022, and no later than March 21, 2022, when she consulted with Dr. Cowan. After two surgeries, Dr. Hodge's report of “no evidence of ovaries,” Ms. Gautier's March 6, 2022 discovery that she indeed still did have a right ovary, and her belief on that day that Dr. Hodge “had not done the proper procedure,” Ms. Gautier had actual “knowledge of facts indicating to a reasonable person” that she was the victim of a tort. See Doe, 344 So.3d at 654. The fact that the third surgery fully removing Ms. Gautier's right ovary occurred on April 7, 2022, does not mean prescription was suspended until that date.

CONCLUSION

For the foregoing reasons, we find no manifest error in the trial court's factual findings and affirm the February 27, 2024 judgment granting the exceptions of prescription and dismissing Kelly Gautier's claims against Dr. Kimberly Hodge and North Oaks Medical Center with prejudice. We assess costs of the appeal to Kelly Gautier.

AFFIRMED.

FOOTNOTES

1.   A health care provider against whom a claim has been filed under the Medical Malpractice Act, La. R.S. 40:1231.1, et seq., may raise any exception or defenses available under to La. R.S. 9:5628 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. La. R.S. 40:1231.8(B)(2) (formerly cited as La. R.S. 40:1299.47).

2.   On March 19, 2024, the trial court signed an order granting Ms. Gautier's appeal from the February 27, 2024 judgment. On March 28, 2024, Ms. Gautier filed a notice of intent to file a writ application challenging the same February 27, 2024 judgment. On April 1, 2024, the trial court signed an order directing Ms. Gautier to file her writ application with this Court by May 1, 2024. On April 3, 2024, Ms. Gautier filed a motion to dismiss her appeal. The appellate record contains no trial court ruling on this April 3, 2024 motion. On April 26, 2024, Ms. Gautier filed her writ application under this Court's docket number 2024 CW 0380. On July 1, 2024, this Court granted the writ, noted that the February 27, 2024 judgment was an appealable final judgment, and remanded the matter to the trial court with instructions to grant Ms. Gautier an appeal. On July 5, 2024, the trial court signed an order of appeal. We note that, once the trial court signed the first order granting Ms. Gautier's appeal on March 19, 2024, it was divested of jurisdiction to thereafter act on her March 28, 2024 notice of intent to file a writ application. See La. C.C.P. art. 2088. As the February 27, 2024 judgment is a final judgment from which Ms. Gautier timely appealed, we consider it under our appellate jurisdiction.

3.   In her brief, Ms. Gautier listed five assignments of error. Assignments of error numbers one, two, and four are related and are addressed herein. Ms. Gautier did not brief assignment of error number three, and we consider it abandoned. See Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4). In assignment of error number five, Ms. Gautier argues Dr. Hodge violated the Louisiana Uniform Consent Law, La. R.S. 40:1157.1, et seq., by failing to “discuss reasonable therapeutic alternative[s] to surgery.” Because we affirm the judgment dismissing Ms. Gautier's claims as prescribed, we do not reach this substantive issue.

4.   Louisiana Revised Statutes 9:5628(A) pertinently provides: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.

5.   The exhibits Dr. Hodge introduced at the hearing were not separately sent to this Court in an evidence envelope but were filed into the record with Dr. Hodge's prescription exception. Further, it appears Ms. Gautier filed documents into the record with her opposition to the prescription exceptions, but she did not introduce those documents as exhibits at the exception hearing. Because Dr. Hodge's exhibits were introduced at the exception hearing, and there is no objection to our consideration of the exhibits filed with her prescription exception, we consider them in our review of this appeal. See Arnouville v. Crowe, 2016-0046 (La. App. 1 Cir. 9/16/16), 203 So.3d 479, 483, n.5 and Sala v. Asher, 2001-1038 (La. App. 1 Cir. 7/10/02), 825 So.2d 1257, 1260-61. However, we do not consider the documents Ms. Gautier apparently filed into the record with her opposition but which she did not introduce at the exception hearing. Documents attached to memoranda, but not introduced, do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88.

GREENE, J.