Acosta v. Campbell

744 So. 2d 112, 1999 WL 675367
CourtLouisiana Court of Appeal
DecidedAugust 11, 1999
Docket98-CA-2538
StatusPublished
Cited by8 cases

This text of 744 So. 2d 112 (Acosta v. Campbell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acosta v. Campbell, 744 So. 2d 112, 1999 WL 675367 (La. Ct. App. 1999).

Opinion

744 So.2d 112 (1999)

Maria ACOSTA
v.
Edward CAMPBELL, M.D., et al.

No. 98-CA-2538.

Court of Appeal of Louisiana, Fourth Circuit.

August 11, 1999.

*113 Lawrence S. Kullman, David A. Abramson, Lewis, Kullman & Sterbcow, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Maria Acosta.

Harvey J. Godofsky, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, Louisiana, Attorney for Defendant/Appellee, Edward M. Campbell, M.D.

Marilyn R. Cohen, Law Offices of Robert E. Birtel, Metairie, Louisiana, Attorney for Defendants/Appellees, Gerald M. Benoit, M.D., Jerry Richard Haskin, M.D., Helen Sauviac, CRNA, and Anesthesia East, Inc.

Lloyd W. Hayes, New Orleans, Louisiana, Attorney for Defendant/Appellee, David A. Femovich, M.D.

Deborah I. Schroeder, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, Louisiana, Attorney for Defendant/Appellee, Pendleton Memorial Methodist Hospital.

*114 Edward J. Rice, Jr., Arthur F. Hickham, Jr., Adams and Reese, L.L.P., New Orleans, Louisiana, ATTORNEYS FOR Defendants/Appellees, Jan T. McClanahan, M.D. and Louisiana Medical Mutual Insurance Company.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER and Judge PATRICIA RIVET MURRAY.

MURRAY, Judge.

Plaintiff, Maria Acosta, appeals the dismissal of her medical malpractice action on exceptions of prescription asserted by the defendant health care providers. We affirm.

On December 14, 1993, a radical mastectomy of the right breast was performed on Ms. Acosta by Dr. Jan T. McClanahan, a specialist in general and vascular surgery, followed by a breast reconstruction by Dr. David A. Femovich, a plastic surgeon, and his associate, Dr. Edward Campbell. Ms. Acosta complained of numbness and tingling in her lower right arm as well as loss of feeling in the ring and "pinky" fingers of her right (dominant) hand almost immediately after the surgery. Because of these complaints, her surgeons arranged for her to be seen by a neurologist. After an examination on December 17, 1993, this consultant informed Ms. Acosta that she had suffered a nerve injury to her lower right arm, probably due to pressure or compression during the surgery.

Ms. Acosta, who was discharged from the hospital on December 20, 1993, continued to see Dr. McClanahan, Dr. Femovich and Dr. Campbell for post-operative care throughout 1994. In January and March 1994 she consulted Dr. Thomas A. Krefft, a neurologist, about her nerve damage. On June 3, 1994, Ms. Acosta was examined and evaluated, at Dr. Femovich's request, by Methodist Gulf Coast Hand Center. Because she had a diminished ability to flex some of the fingers on her right hand, physical therapy was recommended and she was given a molded splint. Dr. Femovich and Dr. Campbell supervised the therapy treatments for Ms. Acosta's right arm and hand into the latter part of 1995.

Although aware that her symptoms were caused by a nerve injury that occurred during the mastectomy, Ms. Acosta alleges that Dr. Femovich advised her on December 14, 1994, for the first time, that her neurological injury might have been caused by improper positioning during surgery. Until then, she had been reassured that the injury was a "normal" consequence of swelling that accompanies that type of surgery.

In November 1995,[1] almost two years after her surgery, Ms. Acosta initiated a medical review panel proceeding, asserting that her claim was timely because she had not learned what caused her injury until December 1994. After considerable discovery, the defendant providers responded with these peremptory exceptions, maintaining that Ms. Acosta's claims had prescribed in December 1994, one year after she knew that she had suffered damages from the surgery.

The matter was submitted for decision by the trial court based only upon affidavits, deposition excerpts and other documentary evidence, without the testimony of any party. Following oral arguments, the district court maintained the exceptions and dismissed Ms. Acosta's claims against all defendants.[2]

*115 La. R.S. § 9:5628 A provides in pertinent part:

No action for damages for injury or death ... 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; provided, however, that ... in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.

This provision was enacted to codify the general one-year prescriptive period for delicts, as well as a limited application of the jurisprudential "discovery rule," for medical malpractice actions. Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986); Chaney v. State Through Dept. of Health & Human Resources, 432 So.2d 256, 259 (La.1983).

Accordingly, a malpractice claim brought more than a year after the alleged negligent act will be considered timely if filed within a year "from the date on which [the plaintiff] discovered or should have discovered the grounds for [her] cause of action," as long as it is asserted within three years of the conduct at issue. Whitnell v. Menville, 540 So.2d 304, 309 (La. 1989) (citing Hebert, supra).

Under the discovery rule, prescription is suspended until the plaintiff knows or should know of the damage, the wrongful act and the connection between them. Branch v. Willis-Knighton Medical Center, 92-3086, p. 1 (La. 4/28/94), 636 So.2d 211, 212. Thus, the one year prescriptive period does not begin to run against a plaintiff who is unaware of the facts upon which her cause of action rests unless her ignorance is willful, negligent or unreasonable. In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La. 1991). In this case, the trial court found that Ms. Acosta had knowledge of sufficient facts underlying her cause of action to have made a claim within the first year after the surgery, and that the delayed filing, twenty-three months after her injury, was negligent or unreasonable.

Ms. Acosta first argues that the defendants have the burden of proving her claims have prescribed because her November 1995 petition specifically alleges that she was unaware of the cause of her injury until December 1994. She contends that because her action is thus not prescribed on the face of the pleadings, the burden remains on the exceptors to prove that her action was not timely. In support, she cites Chaney, supra, 432 So.2d at 259-60; Chandler v. Highland Clinic, 28,204, p. 2 (La.App. 2d Cir. 4/3/96), 671 So.2d 1271, 1273; Abrams v. Herbert, 590 So.2d 1291, 1295 (La.App. 1st Cir.1991); and Leyva v. Laga, 549 So.2d 914, 916-17 (La. App. 3d Cir.1989). Despite consideration of this jurisprudence, however, we find that under these circumstances, Ms. Acosta bears the burden of proving that she neither knew nor should have known the essential facts underlying her malpractice claims within one year of the alleged negligence.

In Chaney, the Supreme Court reviewed the dismissal of a malpractice suit based upon an exception of prescription that was "tried without introduction of evidence thereon." 432 So.2d at 258. The Court held that because the complaint was not filed until May 1981, the plaintiffs' causes of action arising from surgery performed in June 1977 were clearly barred by the three-year limit in R.S. § 9:5628, even though it was alleged that the facts were not discovered until 1979. Id.

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Bluebook (online)
744 So. 2d 112, 1999 WL 675367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acosta-v-campbell-lactapp-1999.