YVETTE GRIFFIN v. PHILIPPE VEETERS AND DUTCH PHYSICAL THERAPY INC AND ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY (2025)

Plaintiff, Yvette Griffin, appeals a district court judgment sustaining two peremptory exceptions raising the objection of prescription and dismissing Plaintiffs claims against Defendants, Philippe Veeters (“Veeters”), Dutch Physical Therapy, Inc. (“Dutch”), and American Casualty Company of Reading, PA (“American Casualty”), with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 2, 2020, Yvette Griffin filed a petition for damages at the 19th Judicial District Court, in which she named Veeters, Dutch (Veeters’ employer), and two unidentified insurance companies as defendants.¹ According to the petition, Griffin presented to Dutch in November 2015 to receive physical therapy for lower back issues, and she was treated by a physical therapist who she later identified as Veeters. Griffin alleged that during her first visit, Veeters “pressed gently across the pubic area of [her] body with his hands from side to side in the first examination room of [Dutch].” Griffin's petition went on to detail multiple instances of Veeters touching her inappropriately at subsequent physical therapy sessions at Dutch between November 10, 2015 and December 1, 2015.

Griffin asserted in her petition that she did not discover Veeters’ identity until February 2019, when she “read[ ] an article in the newspaper” related to Veeters’ arrest and Veeters was “shown publicly on the news[.]” Griffin also alleged that in March 2019, she learned through law enforcement that Veeters was sexually assaulting women who came to him for physical therapy treatment. Griffin sought damages for battery, simple battery, sexual battery, misdemeanor sexual battery, assault, simple assault, intentional infliction of emotional distress, and negligent infliction of emotional distress. Griffin also asserted that Veeters’ actions fell below the standard of care of a physical therapist.

Shortly after Griffin filed her petition for damages, the district court granted a motion to stay the civil suit proceedings pending the criminal prosecution of Veeters. The stay was lifted by order of the district court dated March 31, 2023, after the resolution of Veeters’ criminal cases. Thereafter, Griffin fax-filed a first supplemental and amended petition (“the amended petition”) identifying American Casualty as the malpractice insurer for Veeters and the general liability insurer for Dutch. In the amended petition, Griffin stated that the inappropriate touching “was neither treatment related nor cause[d] by dereliction of professional medical skills”; “did not occur in [the] context of [the] physician-patient relationship[,] and was not within the scope of activities which Dutch or Veeters is licensed to perform.” The amended petition also included additional allegations of breach of contract to provide physical therapy services.

Veeters and Dutch filed a peremptory exception raising the objection of prescription on December 21, 2023. Veeters and Dutch alleged that Griffin presented to Dutch for physical therapy sessions between the dates of November 10, 2015, and December 1, 2015. Veeters and Dutch argued that, since Griffin did not file her lawsuit until March 2, 2020, Griffin's claims against them are prescribed on the face of the petition. American Casualty filed its own exception raising the objection of prescription on February 7, 2024, and adopted Veeters and Dutch's arguments in their memorandum in support of the exception of prescription and all exhibits attached thereto. In opposition to the exceptions, Griffin argued that a “doctor[-]patient relationship results in a contract.” Griffin asserted that she entered such a contract with Veeters and Dutch to provide physical therapy services, and since her claims are based in contract, they are governed by a ten-year prescriptive period.

The district court held a hearing on the exceptions on March 11, 2024. Counsel for Veeters and Dutch introduced the following exhibits into evidence during the hearing: (1) Griffin's petition for damages; (2) excerpts from Griffin's medical records; (3) excerpts from Griffin's deposition; and (4) Griffin's amended petition. Counsel for Griffin introduced the December 19, 2022 consent judgment between Veeters and the Louisiana Physical Therapy Board following his guilty plea to all pending criminal charges.² Counsel for American Casualty made an appearance but did not offer any independent argument or exhibits.

At the conclusion of the hearing, the district court sustained the exception. The district court explained that the prescriptive period provided in the Louisiana Medical Malpractice Act (“LMMA”) covers both tort and contract claims between a healthcare provider and his or her patient. The district court found Griffin knew who was treating her, where Veeters worked, and what happened to her at the time of Veeters’ inappropriate actions. Therefore, applying the one-year peremptive period from the LMMA, the district court found Griffin's claims were prescribed. The district court further noted that when applying the three-year prescriptive period for sexual assault claims, Griffin's lawsuit was still untimely.

The district court signed a judgment on April 11, 2024, which (1) sustained Veeters and Dutch's objection of prescription; (2) sustained American Casualty's objection of prescription; and (3) dismissed all of Griffin's claims against all defendants with prejudice. Notice of signing of judgment was mailed on April 15, 2024. This timely appeal followed.³

Griffin assigns the following errors to the district court's judgment:

1. The [district] court erred in sustaining Defendants’ exceptions of prescription because Griffin's claims are subject to the ten-year prescripti[ve] [period] for personal actions under Louisiana Civil Code article 3499.

2. Alternatively, the [district] court erred in sustaining Defendants’ exceptions of prescription because Griffin brought her claims within one year after she reasonably discovered her cause of action against Veeters and Dutch, under the doctrine of contra non valentem.

3. Alternatively, the [district] court erred in sustaining Defendants’ exceptions of prescription because Veeters’ guilty plea and consent agreements were an acknowledgment of Griffin's claims and/or a renunciation of prescription.

MOTION TO DISMISS

While her appeal was pending, Griffin filed a “Motion to Dismiss Appeal as to Certain Appellees” at this court. Therein, Griffin advised this court that she “resolved her differences with Veeters and Dutch” and therefore desires to dismiss her appeal as to those two defendants. Griffin also stated that she has not resolved her differences with American Casualty, and she emphasized that she is not dismissing her appeal as to the portion of the district court's judgment that dismissed her claims against American Casualty. None of the defendants have filed an opposition to Griffin's motion to dismiss.

Despite receiving no objection to Griffin's motion to dismiss, we find dismissal of Veeters and Dutch to be inappropriate given the unique circumstances in this case. American Casualty's exception fully adopted the exception filed by Veeters and Dutch—it did not assert any independent argument, nor did it attach any evidence. At the hearing on the exceptions, counsel for American Casualty made an appearance but did not make any argument or introduce any evidence.

Further, Griffin did not assert any independent causes of action against American Casualty; rather, Griffin's causes of action against American Casualty arise solely from her allegation that American Casualty, as insurer of Veeters and Dutch, is liable “jointly and in solido with [Veeters and Dutch] for any and all damages occasioned by the negligence and/or misconduct of the defendants to Plaintiff[.]” If the district court's judgment sustaining the exception of prescription filed by Veeters and Dutch is allowed to stand, it would be inconsistent to find Griffin's claims against American Casualty are not prescribed, which is precisely what Griffin is asking this court to find on appeal. In other words, if Veeters and Dutch had not been properly sued within the applicable prescriptive period, then the suit against their insurer is also prescribed when filed after the prescriptive period. For these reasons, Griffin's “Motion to Dismiss Appeal as to Certain Appellees” is denied.

STANDARD OF REVIEW

The objection of prescription may be raised by peremptory exception. La. C.C.P. art. 927(A)(1). The standard of review of a judgment pertaining to an exception raising the objection of prescription turns on whether evidence is introduced at the hearing of the exception. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 2021-00061 (La. 10/10/21), 333 So.3d 368, 373. Louisiana Code of Civil Procedure article 931 expressly allows “evidence [to] be introduced to support or controvert [a peremptory exception], when the grounds thereof do not appear from the petition.” When evidence is introduced at the hearing, a court need not accept the allegations of the petition as true, and the lower court decisions are to be reviewed under a manifest error-clearly wrong standard of review. Mitchell, 333 So.3d at 373. A caveat to this rule is that, even when evidence is introduced, when there is no dispute regarding material facts, the reviewing court is to apply a de novo standard of review and give no deference to the district court's legal conclusions. Mitchell, 333 So.3d at 373.

In this case, evidence was submitted both in support of and in opposition to the exceptions raising the objection of prescription. However, the parties to this appeal do not dispute the facts forming the basis of the objection of prescription; rather, the determinations we must make are purely legal ones—what prescriptive period applies to Griffin's claims and whether that period lapsed prior to filing suit. As such, we review the district court's decision under a de novo standard of review. See Mitchell, 333 So.3d at 373.

DISCUSSION

Ordinarily, a party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the petition shows that it is prescribed on its face, then the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. Talley v. Baum, 2022-13 29 (La. App. 1 Cir. 9/7/23), 371 So.3d 1114, 1118.

In this case, the amended petition is prescribed on its face because it was filed on September 18, 2023, which is nearly eight years after Griffin's last appointment with Veeters at Dutch.⁴ Therefore, Griffin has the burden of proving that her claims against Veeters, Dutch, and American Casualty (collectively referred to as “Defendants”) were not prescribed. See Taylor-Haynes v. Tropicana Entertainment LLC, 2023-0558 (La. App. 1 Cir. 11/15/23), 379 So.3d 688, 693.

Sexual Assault Claims

Griffin asserted claims against Defendants for sexual battery and misdemeanor sexual battery. A tort action against a person for any act of sexual assault, as defined in La. R.S. 46:2184,⁵ is subject to a three-year prescriptive period, which begins to run on the day the injury or damage is sustained or the day the victim is notified of the identity of the offender by law enforcement or a judicial agency, whichever is later. La. C.C. art. 3496.2.

On February 7, 2019, four years and two months after Griffin's last session with Veeters, Griffin discovered Veeters was arrested for the sexual abuse of his patients. Griffin contacted detectives on or about February 21, 2019, to self-identify as a victim of Veeters, and she filed the lawsuit against Defendants on March 2, 2020. On appeal, Griffin argues that she was not aware the inappropriate touching was not legitimate medical treatment until she heard about Veeters’ arrest on the news. As such, Griffin maintains that prescription on her sexual assault claims did not begin to run until 2019 when she was “notified of the identity of the offender by law enforcement or a judicial agency.” See La. C.C. art. 3496.2.

Defendants offered excerpts from the deposition of Griffin in connection with their exceptions. Griffin admitted in her deposition that she knew she was sexually assaulted at her appointments with Veeters. Griffin also testified that Veeters was the only physical therapist who treated her at Dutch and that Veeters told her his name. Further, Griffin stated that she contacted detectives on or about February 21, 2019, after she saw the news story, to identify herself as another victim of Veeters. Griffin did not present any evidence to contest any of these facts, nor did she present any evidence to establish that she was not aware of Veeters’ identity until 2019. As such, we find the uncontroverted facts establish that Griffin was aware of Veeters’ identity on the day the injury or damage was sustained, and therefore, prescription began to run on the date of her last appointment at Dutch, at the latest.

Griffin alternatively argues that the ten-year prescriptive period for contracts applies to her sexual assault claims. She bases this argument on the consent judgment signed by Veeters before the Louisiana Physical Therapy Board in conjunction with complaints from alleged sexual abuse victims and other alleged victims of professional misconduct. According to Griffin, the consent judgment is a contract whereby Veeters “admitt[ed] to the offenses against Yvette Griffin ․ and made himself liable to Yvette Griffin ․ for all damages as may be subsequently determined by a court to have been sustained by Yvette Griffin.”

A consent judgment is a bilateral contract where parties adjust their differences by mutual consent and put an end to a lawsuit with each party balancing hope of gain against fear of loss. Nicholas v. Bonnie, 2023-01250 (La. 5/31/24), 385 So.3d 1130, 1133. The consent judgment at issue was signed by Veeters on December 19, 2022. Therein, the Louisiana Physical Therapy Board detailed Veeters’ arrest warrants, arrest, guilty plea, and sentence in relation to numerous instances of alleged sexual battery of physical therapy patients. The consent judgment also noted that pursuant to a September 13, 2019 interim consent judgment, Veeters agreed to an indefinite suspension during the pendency of his criminal charges and immediate permanent suspension if found guilty. Finally, as a result of Veeters plea of “guilty” to six counts of second-degree battery of female physical therapy patients, Veeters agreed to revocation of his physical therapy license; to never apply for reinstatement of his license; to be forever barred from working in the physical therapy field in any capacity or practice; and to admit he violated multiple statutes and rules regarding the practice of physical therapy. The consent judgment was accepted by the Louisiana Physical Therapy Board on January 23, 2023. Griffin is not mentioned by name in the consent judgment.

Griffin was not a party to the consent judgment nor did the consent judgment obligate Veeters to Griffin in any way. The consent judgment also did not manifest a clear intention to benefit a third party, such as Griffin.⁶ Since the consent judgment does not obligate Veeters to Griffin, we do not find the consent judgment is a contract between Veeters and Griffin. As such, the ten-year prescriptive period for contracts does not apply to Griffin's sexual assault claims.

Griffin's last appointment with Veeters at Dutch occurred on December 1, 2015; therefore, pursuant to La. C.C. art. 3496.2, Griffin had three years from that date, or until December 1, 2018, to assert a delictual action against Defendants for sexual assault. Griffin did not assert her sexual assault claims until March 2, 2020, the date on which she filed her original petition, which is well beyond the three-year prescriptive period. Accordingly, we find Griffin's sexual assault claims are prescribed.⁷

Remaining Claims

Griffin also asserted claims against the Defendants for medical malpractice, assault, battery, negligent and intentional infliction of emotional distress, and false imprisonment in her original petition. Griffin's amended petition reiterated those claims. Griffin asserts that Veeters and Dutch owed her a “special obligation” as their patient in addition to their general duty owed to all persons. As such, Griffin maintains she may choose whether to sue Defendants in contract or in tort. Griffin argues that she chose to sue Defendants based on contract, and therefore, her claims are subject to the ten-year prescriptive period for personal actions pursuant to La. C.C. art. 3499. We disagree.

While it is true that the same acts or omissions may constitute breaches of general and contractual duties and may give rise to both actions in tort and actions in contract, see Everett v. Philibert, 2008-2270 (La. App. 1 Cir. 5/8/09), 13 So.3d 616, 620, Louisiana law provides for a specific prescriptive period for actions against physical therapists. According to La. R.S. 9:5628(A), any action against a physical therapist (or other healthcare provider), whether based upon tort, breach of contract, or otherwise, arising out of patient care shall 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. See also La. R.S. 9:5628(C) (providing La. R.S. 9:5628 applies to all healthcare providers defined in La. R.S. 40:1231.1(A)(10) regardless of whether the healthcare provider is a qualified healthcare provider under the LMMA); La. R.S. 40:1231.1(A) (including physical therapists in the definition of “health care provider”). 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. La. R.S. 9:5628(A). All of Griffin's allegations against Defendants concern acts performed by Veeters during Griffin's medical care and treatment at Dutch. Therefore, we find the prescriptive period of La. R.S. 9:5628(A) applies to Griffin's remaining claims, regardless of whether those claims are based upon tort or contract theories.

Griffin filed her original petition on March 2, 2020. Griffin admitted in her deposition that her last appointment with Veeters occurred in 2015. Over four years elapsed between Griffin's last appointment and the date she filed her original petition. This is well beyond one year from the date of the alleged act, omission, or neglect. Therefore, we find Griffin's claims against Defendants for medical malpractice, assault, battery, negligent and intentional infliction of emotional distress, and false imprisonment are also prescribed.⁸

DECREE

For the foregoing reasons, the portion of the district court's April 11, 2024 judgment sustaining the exception raising the objection of prescription filed by Philippe Veeters and Dutch Physical Therapy, Inc. and dismissing all claims asserted by Yvette Griffin against Philippe Veeters and Dutch Physical Therapy, Inc. is affirmed. The portion of the district court's April 11, 2024 judgment sustaining the exception raising the objection of prescription filed by American Casualty Company of Reading, PA and dismissing all claims asserted by Yvette Griffin against American Casualty Company of Reading, PA is also affirmed. All costs of this appeal are assessed to Appellant, Yvette Griffin.

JUDGMENT AFFIRMED.

FOOTNOTES

1.   Griffin also filed a medical review panel (“MRP”) proceeding against Veeters and Dutch in March 2020. Griffin voluntarily moved to dismiss the MRP, and the district court signed a judgment dismissing the MRP as to Veeters and Dutch on October 26, 2023.

2.   Griffin attached several additional exhibits to her opposition to the exceptions, but she only introduced the consent judgment at the trial on the exceptions. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda 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.

3.   Griffin filed a notice of intention to seek supervisory review on March 28, 2024. The district court signed a return date order directing Griffin to file her writ application with this court on or before April 28, 2024. After filing a timely writ application, a panel of this court granted Griffin's writ for the limited purpose of remanding the case to the district court with instructions to grant Griffin an appeal pursuant to the pleading that notified the district court of her intention to seek writs. See Griffin v. Veeters, 2024-0345 (La. App. 1 Cir. 6/17/24) (unpublished writ action) (citing In Re Howard, 541 So.2d 195, 197 (La. 1989) (per curiam)). Pursuant to this court's order, the district court signed an order granting Griffin a devolutive appeal on June 27, 2024.

4.   See La. C.C. art. 3496.2; La. R.S. 9:5628(A) & (C).

5.   “Sexual assault” means “any nonconsensual sexual contact including but not limited to any act provided in [La.] R.S. 15:541(24)[.]” La. R.S. 46:2184. One of the acts listed in La. R.S. 15:541(24)(a) is sexual battery. Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when the offender acts without consent of the victim. La. R.S. 14:43.1(A)(1). Misdemeanor sexual battery is the intentional touching of the victim's breasts or buttocks, directly or through clothing, without the victim's consent. La. R.S. 14:43.1.1(A).

6.   A contracting party may stipulate a benefit for a third person called a third-party beneficiary. La. C.C. art. 1978. In Louisiana, such a contract for the benefit of a third party is called a “stipulation pour autrui.” Maggio v. Parker, 2017-1112 (La. 6/27/18), 250 So.3d 874, 880. A stipulation pour autrui is never presumed. The most basic requirement of such a stipulation is that the contract manifest a clear intention to benefit the third party. Maggio, 250 So.3d at 880.

7.   In her third assignment of error, Griffin argues that Veeters’ guilty plea and consent agreements were an acknowledgment of liability to Griffin and/or a renunciation of prescription. This issue was not raised below, and appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the district court, or are raised for the first time on appeal. See Sagona v. Sagona, 2021-0872 (La. App. 1 Cir. 4/8/22), 341 So.3d 839, 841 (citing Uniform Rules-Courts of Appeal, Rule 1-3). Considering Griffin's failure to raise any argument related to acknowledgment or renunciation at the district court, we decline to consider this assignment of error on appeal.

8.   In her second assignment of error, Griffin argues that prescription was suspended under the doctrine of contra non valentem until February or March 2019 when she learned of Veeters’ arrest. This issue was not raised below, and appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the district court, or are raised for the first time on appeal. See Sagona, 341 So.3d at 841. Considering Griffin's failure to raise any argument related to the application of contra non valentem to the facts of this case, we decline to consider this assignment of error on appeal.

EDWARDS, J.

Hester, J. concurring without reasons