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

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.

Hughes, J., dissents and would grant the writ.