IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF DON SINGLETON (2024)

Writ application denied. See per curiam.

06/19/24

SUPREME COURT OF LOUISIANA

No. 2024-C-00415

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF DON SINGLETON

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

PER CURIAM

A medical malpractice claim must be filed within a year of the alleged malpractice or the discovery of the malpractice; however, in all events, it must 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.¹ This three-year time limitation is a period of repose as opposed to a peremptive period. See Randazzo v. State, Louisiana State Univ. Health Scis. Ctr., 03-1470, p. 6 (La. App. 1 Cir. 5/14/04), 879 So. 2d 741, 744, citing In re Med. Review Panel for Claim of Moses, 00-2643, (La. 5/25/01), 788 So.2d 1173.

Here, the medical review panel complaint, filed on February 6, 2019, alleged that plaintiff was injured as a result of medical malpractice associated with a “cervical procedure” performed “in or around May, 2017.”² The plaintiff amended the complaint on September 16, 2020 to substitute the terms “lumbar” and “back” for “cervical” and “neck” in the original complaint. The lower courts found that the plaintiff's suit was prescribed on the basis that it was not filed within a year of the date of discovery, which was determined to be November 21, 2017.

Pretermitting a discussion of the discovery date as it pertains to the exception of prescription, we find that the matter is prescribed as a matter of law because the amending complaint was filed more than three years from the date of the alleged malpractice. The plaintiff's claims did not concern a cervical surgery as alleged in the original complaint; rather, they concerned a lumbar surgery. The amendment to correct this error was a substantive change and asserted a wholly different claim than that originally alleged. There is no question that the amended complaint was filed more than four years after the alleged malpractice occurred.

Furthermore, under the circumstances of this case, the amended complaint cannot relate back to the original complaint so as to be considered timely. See, e.g., Santiago v. Tulane Univ. Hosp. & Clinic, 12-1095, p. 18 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 686 (plaintiff's amended medical malpractice petition alleging “completely new allegations,” was filed more than three years after the alleged malpractice, and was therefore prescribed; “The only claims that were timely filed against [the physician] are the original claims relating to his alleged responsibility for the plaintiff's fall. Because the plaintiff failed to amend her petition within the delays allowed by La. R.S. 9:5628, her amended claims are now prescribed.”); Marenghi v. Louisiana Med. Mut. Ins. Co., 46,032, p. 4 (La. App. 2 Cir. 4/13/11); 62 So.3d 847 (plaintiff amended her complaint more than four years after the alleged malpractice to add new claims not originally asserted; the court found that “the filing of the original claim and subsequent lawsuit had no effect on the running of the peremptory period, and the amended petition adding an additional, unrelated claim did not relate back to the date of the filing of the original petition.”).

Accordingly, because plaintiff's amended complaint was filed after the three year period of repose set forth in La. R.S. 9:5628 elapsed, the plaintiff's suit is prescribed. We therefore affirm the grant of the defendant's exception of prescription on that basis.

A medical malpractice claim must be filed within a year of the alleged malpractice or the discovery of the malpractice, as set forth in La. R.S. 9:5628 A, which provides:

No action for damages for injury or death against any physician, ․ arising out of patient care shall be bought 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.

As this court made clear in Cordova v. Hartford Accident & Indemnity Co., 387 So.2d 574, 578 (La. 1980), “the mere apprehension by plaintiff that ‘something was wrong’ is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that there was a reasonable possibility that his problem condition, ․ , may have been caused by acts of malpractice.” To the contrary, prescription begins to run 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.” Campo v. Correa, 01-2707, pp. 11-12 (La. 6/21/02), 828 So. 2d 502, 510. We have defined “constructive knowledge” as “whatever notice is enough to excite attention and put the injured party on guard and call for inquiry.” Id., p. 12, 828 So. 2d at 511.

Here, the lower courts found that the date on which the plaintiff had constructive knowledge that he was the victim of medical malpractice was November 21, 2017, based on a medical report from an emergency room visit, offered at the hearing on the exception of prescription, and in which the plaintiff reported “acute, 8/10 ‘stabbing’ bilateral lower back pain.” A review of that report, however, shows that the plaintiff also reported “having this pain for the past 5 years after sustaining a fall at work.” Although the plaintiff also gave a history of “having surgery 1.5 years ago to his lumbar spine,” there is nothing to suggest that the plaintiff was aware that the back pain from which he suffered in November 2017 was related to his lumbar surgery. Nor does the medical report reflect that any diagnostic testing (e.g., x-rays) performed at that time was suggestive of medical malpractice related to the plaintiff's 2016 surgery.

While plaintiff clearly complained of back pain at the November 2017 emergency room visit, I would not find that to constitute sufficient notice that his pain may have been caused by acts of malpractice. I believe that the lower courts erred in finding November 21, 2017 to be the date of discovery for purposes of the commencement of prescription. I would reverse the judgment sustaining the exception of prescription and remand this matter for further proceedings.

FOOTNOTES

1.   Louisiana Revised Statute 9:5628 provides, in subpart A:No action for damages for injury or death against any physician, ․ arising out of patient care shall be bought 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.

2.   The surgery at issue in this suit actually occurred in 2016.