Adams v. O'Connell

955 So. 2d 722, 2006 La.App. 4 Cir. 0139, 2007 La. App. LEXIS 737, 2007 WL 1180445
CourtLouisiana Court of Appeal
DecidedMarch 28, 2007
DocketNo. 2006-C-0139
StatusPublished
Cited by3 cases

This text of 955 So. 2d 722 (Adams v. O'Connell) 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
Adams v. O'Connell, 955 So. 2d 722, 2006 La.App. 4 Cir. 0139, 2007 La. App. LEXIS 737, 2007 WL 1180445 (La. Ct. App. 2007).

Opinions

(On Remand from the Supreme Court of Louisiana)

TERRI F. LOVE, Judge.

_JjThis matter arises from a remand from the Louisiana Supreme Court of a writ1 [724]*724decided by this Court wherein we denied the relator’s application based on the peremptory exception of prescription. We now address the matter following oral argument and grant the writ.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Tiffany Adams (“Ms. Adams”) was injured in a car accident and subsequently had surgery, which was performed by Dr. Raymond DeCorte (“Dr. DeCorte”) to repair a hernia in January 1995. After a second car accident, Ms. Adams’ hernia recurred. Dr. DeCorte repaired the hernia using Marlex2 mesh (“Marlex”) in November 1995.

In October 1998, Ms. Adams sought treatment for obesity from Dr. Ruary O’Connell (“Dr. O’Connell”). As a result, Dr. O’Connell performed a transverse gastric stapling, ROUX-en-y Gastrojejunosto-my, and cholecystectomy in October 1998. During the procedures, he allegedly cut through the existing mesh and sutured it back. Around March 2, 1999, Dr. O’Con-nell detected a small mid-line incisional hernia in Ms. Adams. He repaired the hernia on or around March 15,121999, and Ms. Adams alleged that she requested the use of Marlex to prevent a recurrence based on her previous knowledge of and success with Marlex.

On March 25,1999, Ms. Adams noticed a sudden drainage of fluid from her mid-line incision. She telephoned Dr. O’Connell, who instructed her to go to the emergency room. Ms. Adams visited the emergency room at East Jefferson General Hospital and received antibiotics. On March 26, 1999, and March 29, 1999, Ms. Adams had post-operative visits with Dr. O’Connell regarding the drainage. On May 19, 1999, Ms. Adams visited Dr. O’Connell and was instructed to return in six months. However, she did not return to Dr. O’Connell’s office, because, in her own words, she was “ticked” that Dr. O’Connell had not used Marlex mesh in her hernia repair. He had informed her at one of the earlier postoperative visits that he did not use Marlex for her surgery, because it was not needed for her type of hernia, and that she should not have any problems even though the mesh was not used.

Ms. Adams discovered a small “pea sized” hernia in late April or early May 1999. On June 28, 1999, Ms. Adams visited Dr. Xeith Samuels (“Dr. Samuels”), her obstetrician/gynecologist, with the suspicion that she was pregnant. Dr. Samuels diagnosed her with a mid-line incisional hernia at the June 28, 1999 visit. In her deposition when she was asked whether she believed at the time of the June 28, 1999 visit that Dr. O’Connell’s failure to use mesh in her hernia repair had caused the new hernia, Ms. Adams responded, “That was my impression.”

On October 27, 1999, Ms. Adams visited Dr. DeCorte for a consultation about her then existing hernia. Ms. Adams alleges that Dr. DeCorte informed her at this appointment that the failure of Dr. O’Con-nell to use Marlex caused her hernia to recur. In fact, Ms. Adams testified in her deposition that when she saw |3Pr. De-Corte in October, she “already knew” the cause of the hernia but that Dr. DeCorte confirmed it for her.

Following her recovery from a caesarian section, Dr. DeCorte performed a ventral hernia repair with Marlex on May 4, 2000. Ms. Adams suffered no recurrences or [725]*725subsequent problems after the May 2000 hernia repair.

On August 18, 2000, Ms. Adams filed a medical malpractice complaint with the medical review panel (“the panel”), alleging that Dr. O’Connell used substandard care when he failed to use Marlex on her hernia repair. On October 2, 2001, the panel unanimously held that Dr. O’Connell did not breach the medical standards of care.

Accordingly, on October 19, 2001, Ms. Adams filed a petition alleging that Dr. O’Connell was negligent in failing to utilize Marlex and that she did not learn that the lack of Marlex usage was medically inappropriate until October 27, 1999. Ms. Adams then filed a supplemental and amending petition on July 11, 2003, alleging that she “specifically requested that he use mesh to repair the recurrent hernia because the last time she had a recurrent hernia a mesh was used.” Additionally, she urged that Dr. O’Connell agreed to use Marlex. After she discovered that Dr. O’Connell did not use Marlex, Ms. Adams alleges that Dr. O’Connell “lead her to believe that he fixed the hernia appropriately with sutures and she had nothing to worry about.” She alleged that the informed consent form she signed did not include a statement that Dr. O’Connell would ignore her request for Marlex, that he did not inform her of “alternative procedures,” and by doing all of the above, he deviated from the appropriate standard of care.

Dr. O’Connell then filed a peremptory exception of prescription alleging that Ms. Adams did not file within one year of actual or constructive knowledge of Dr. |40’ConneH’s failure to use Marlex. The trial court denied the exception with no reasons and Dr. O’Connell sought writs to this Court.

This Court denied Dr. O’Connell’s writ finding that two reasonable views existed as to what date Ms. Adams had actual or constructive knowledge to trigger the running of prescription. The Louisiana Supreme Court then granted Dr. O’Connell’s writ and remanded the matter to this Court for briefing, argument, and opinion. This Court heard arguments and this opinion follows.

STANDARD OF REVIEW

Appellate courts review a trial court’s factual findings with the manifest error/clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse findings of fact, the reviewing court must find that no reasonable factual basis exists for the findings and the findings are clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The fact-finder’s conclusion must be a reasonable one. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

PRESCRIPTION

The exception of prescription is a peremptory exception. La. C.C.P. art. 927. “[PJrescriptive statutes are strictly construed against prescription.... ” Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268. If amendment of the petition can cure the basis for the peremptory exception, the trial court “shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. The exceptor bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). However, the burden shifts to the plaintiff if prescription is evident on the face of the pleadings. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.|2d5 1383, 1386 (La.1993).

[726]*726La. R.S. 9:5628 provides the prescriptive period for medical malpractice and reads, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
955 So. 2d 722, 2006 La.App. 4 Cir. 0139, 2007 La. App. LEXIS 737, 2007 WL 1180445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-oconnell-lactapp-2007.