IN RE: MEDICAL REVIEW PANEL OF PHILLIP ISAAC (2025)

In this medical malpractice case, Plaintiff, Phillip Isaac, appeals the judgment of the trial court granting the peremptory exception of prescription filed by Defendant, Dr. Stuart F. Taylor, and dismissing the case. For the reasons expressed below, we affirm the judgment of the trial court.

I.

ISSUES

On appeal, Mr. Isaac asserts the following assignment of error:

(1) the trial court improperly granted the defense motion for peremptory Exception of Prescription.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Isaac was a dental patient of Dr. Taylor. On November 9, 2022, a file separated into Mr. Isaac's mouth while Dr. Taylor was performing a root canal procedure. At this point, Dr. Taylor stopped the procedure, informed Mr. Isaac about the separated file and referred him to a specialist, Dr. John Levin, who could widen the canal to remove the file and complete the root canal. Mr. Isaac was seen by Dr. Levin on November 14, 2022, and Dr. Levin informed him that he could not complete the root canal. Mr. Isaac asserts that he has seen other dentists, and all indicated that they could not complete a root canal. On July 31, 2023, Mr. Isaac was seen by a dentist who took an X-ray, showing Mr. Isaac the location of the file. This dentist then informed Mr. Isaac that she also could not perform a root canal and that the tooth would need to be pulled.

Mr. Isaac filed a complaint with the Louisiana Patient's Compensation Fund on December 7, 2023, claiming malpractice by Dr. Taylor. Dr. Taylor filed a peremptory exception of prescription asserting that Mr. Isaac's claim had prescribed pursuant to La.R.S. 9:5628(A) and La.R.S. 40:1231.8(B)(2)(a). Mr. Isaac filed an opposition to Dr. Taylor's peremptory exception of prescription, and a hearing was held on August 5, 2024. Neither Mr. Isaac nor his attorney was present for the hearing. The trial court granted the exception of prescription in open court. Mr. Isaac now appeals the trial court's judgment.

III.

STANDARD OF REVIEW

When reviewing a grant of a peremptory exception of prescription on appeal, the standard of review depends on whether evidence was adduced at the trial court. If evidence is introduced at the hearing, then the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-61 (La. 10/10/21), 333 So.3d 368. If no evidence was submitted, the exception must be decided upon the facts alleged in the petition and the judgment is reviewed simply to determine whether the trial court's decision was legally correct. Id.

IV.

LAW AND DISCUSSION

On appeal, Mr. Isaac asserts that the trial court erred in granting the peremptory exception of prescription. Mr. Isaac asserts that Dr. Taylor was negligent in leaving the file in his mouth and referring him to a dentist who did not have the expertise to handle the issue. Mr. Isaac argues that he was not aware of his medical condition until July 31, 2023, when an unnamed dentist gave him an X-ray showing the location of the file in his tooth. This dentist notified him that the file could not be removed, and he could not get a root canal as Dr. Taylor led him to believe. He then goes on to allege that the date of prescription is the date that he was informed about his medical condition, July 31, 2023, and not November 9, 2022, the date when he had constructive knowledge of the malpractice.

The applicable prescriptive period for a claim of medical malpractice is found in La.R.S. 9:5628 which provides, in pertinent part:

No action for damages for injury or death against any․ dentist․ 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.

Ordinarily, the party who pleads the peremptory exception of prescription bears the burden of proof. In re Succession of Comeaux, 04-1335 (La.App. 3 Cir. 3/2/05), 896 So.2d 1223. However, if on the face of the pleadings it appears that prescription has run, the burden shifts to the plaintiff to show that the action has not prescribed. Id. Here, Mr. Isaac's petition asserts that Dr. Taylor stopped his root canal procedure on November 9, 2022, and indicated that he needed to see Dr. Levin to remove the file and complete the root canal. This is the alleged act of malpractice. Mr. Isaac did not file his complaint until December 7, 2023; thus, his complaint was prescribed on its face.

The burden then shifted to Mr. Isaac to show that the action had not prescribed. Neither Mr. Isaac nor his attorney was present at the hearing on the exception of prescription. In his opposition to the exception, Mr. Isaac asserts that his claim falls under the three-year window for discovery of malpractice. In support of his assertion, he argues that “on July 31, 2024[sic] he saw a dentist who took an X-ray and showed him the instrument that was broken off in his tooth and he [then] found another dentist who took the tooth out and now is in the process of getting a bridge.” He then argues that the referral to Dr. Levin was not discovery, and it was not until the X-ray in July that he discovered the omission.

Mr. Isaac failed to provide any evidence to support his assertion that prescription began on July 31, 2023. Although Mr. Isaac claims that he only had constructive knowledge of the malpractice after seeing the X-ray, he admits that he was notified by Dr. Taylor at the time of the root canal procedure that a file had broken in his tooth. He also admits that Dr. Taylor told him that he could not complete the root canal and referred him to a specialist, Dr. Levin, on the very same day. Thus, Mr. Isaac was aware of the alleged malpractice committed by Dr. Taylor on November 9, 2022.

Further, Mr. Isaac admits that he saw Dr. Levin a few days later in November and was informed by Dr. Levin that he also could not complete the root canal. If the alleged act of malpractice is that Dr. Taylor was negligent in leaving the file in his mouth and in referring him to a dentist who did not have the expertise to handle the issue, then Mr. Isaac had knowledge of this fact when Dr. Levin informed him that he was unable to complete the root canal. In fact, in his opposition to the exception of prescription, Mr. Isaac admits that he saw Dr. Levin on November 14, 2022, and that prescription began on that date. Assuming a prescription date of November 14, 2022, Mr. Isaac's December 9, 2023 complaint was still filed outside of the prescriptive period set forth in La.R.S. 9:5628(A).

Mr. Isaac bore the burden of proving that his action was not prescribed. This court finds that Mr. Isaac failed to meet that burden. Accordingly, we find that the trial court did not err in granting Dr. Taylor's peremptory exception of prescription and dismissing the action against him.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Phillip Isaac.

AFFIRMED.

SHARON DARVILLE WILSON JUDGE