Bertoniere v. Jefferson Parish Hospital Service District No. 2

972 So. 2d 328, 7 La.App. 5 Cir. 301, 2007 La. App. LEXIS 2032
CourtLouisiana Court of Appeal
DecidedOctober 30, 2007
DocketNo. 07-CA-301
StatusPublished
Cited by42 cases

This text of 972 So. 2d 328 (Bertoniere v. Jefferson Parish Hospital Service District No. 2) 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
Bertoniere v. Jefferson Parish Hospital Service District No. 2, 972 So. 2d 328, 7 La.App. 5 Cir. 301, 2007 La. App. LEXIS 2032 (La. Ct. App. 2007).

Opinion

WALTER J. ROTHSCHILD, Judge.

|aIn this medical malpractice action, plaintiffs appeal from a judgment granting in part an exception of prescription brought by the Louisiana Patient’s Compensation Fund. For the reasons stated [330]*330herein, we affirm the trial court’s judgment.

Facts and Procedural History

On January 9, 1997, Christie and August M. Bertoniere filed a petition for damages against Jefferson Parish Hospital Service District No. 2, d/b/a East Jefferson General Hospital, Dr. Stewart A. Nutting, Dr. James D. Conway, Dr. S. Bleich and an unnamed insurance company alleging negligence on the part of the named physicians.1 In this petition, plaintiffs allege that on December 31, 1995, August Berto-niere presented to the East |3Jefferson emergency room complaining of chest pain. He was examined by Dr. Michael Federline, and after ordering an EKG, Dr. Federline discharged Mr. Bertoniere with a diagnosis of left shoulder pain.

The following day, Mr. Bertoniere appeared again at the emergency room complaining of recurrent chest pain. Dr. Federline ordered another EKG. Mr. Ber-toniere was diagnosed at this time as having sustained an “acute inferior wall myocardial infarction” and he was admitted to the hospital and seen by his internist, Dr. James Conway. The petition further alleges that Mr. Bertoniere underwent bypass surgery which was performed by Dr. Stewart Nutting on January 5, 1996. He was referred to Dr. Bleich for consult and follow-up. According to the petition, Mr. Bertoniere was discharged by Dr. Conway “to home health care and family” on January 8, 1996.

Mr. Bertoniere was brought back to the emergency room on January 9, 1996 after his wife found him “slightly incoherent with garbled speech and a blank expression.” Mrs. Bertoniere was told by Dr. Nutting that her husband had suffered a “cerebral vascular accident due to an em-bolus” and he remained in the hospital until January 19,1996. Since that date, he has remained in a semi-vegetative state.

In their original petition, plaintiffs allege Mr. Bertoniere was discharged to home health care with incorrect medication orders. They allege that Drs. Nutting, Conway and Bleich breached the standard of care in failing to give adequate orders for proper maintenance of hemostasis and/or anticoagulation .therapy prior to discharge. Plaintiffs also allege that East Jefferson was negligent in failing to properly record and communicate the physicians’ orders prior to discharge of Mr. Bertoniere.

^Defendants responded to this petition with exceptions of prematurity on the basis that plaintiffs had not brought their claim to a medical review panel prior to the filing of this suit. The trial court granted the exceptions, and dismissed plaintiffs’ suit without prejudice. Thereafter, plaintiffs filed a request for review and complaint with the Louisiana Patient’s Compensation Fund Oversight Board and an opinion of the panel was issued on September 9,1998.

Plaintiffs subsequently amended their petition to include as defendant the home health nurse and the agency which cared for Mr. Bertoniere after his hospital discharge. By a second amending and supplemental petition filed on November 30, 1998, plaintiffs included all defendants named in the original petition, and further named as defendants Dr. Michael Feder-line and the home health nurse and agency which cared for Mr. Bertoniere after his hospital discharge. In this petition, plaintiffs alleged that the EKG ordered by Dr. Federline in the emergency room on December 31, 1995 indicated a myocardial [331]*331infarction in progress and that Mr. Berto-niere should have been immediately admitted to the hospital and treated.

On January 24, 2001, the home health care agency was dismissed by summary judgment without opposition of plaintiffs.

On joint motion of dismissal filed on September 3, 2003 and signed by the trial comí on September 25, 2003, plaintiffs’ claims against Dr. Stewart Nutting and Dr. Michael Federline were dismissed with prejudice based on settlements obtained, reserving their status as nominal parties for the purposes of plaintiffs seeking additional compensation from the Louisiana Patient’s Compensation Fund.

|fiIn February of 2004, the plaintiffs also filed a motion to dismiss East Jefferson General Hospital based on a settlement obtained, and this party was dismissed with prejudice reserving plaintiffs’ rights to proceed against the remaining defendants and the Louisiana Patient’s Compensation Fund.

Further, by summary judgment signed by the trial court on February 11, 2004, plaintiffs’ claims against Dr. Stanley Bleich and Dr. James Conway were dismissed.

Plaintiffs subsequently filed into these proceedings a petition demanding payment from the Louisiana Patient’s Compensation Fund (“PCF”) pursuant to La. R.S. 40:1299.44(C). The Patient’s Compensation Fund responded with an exception of prescription arguing that plaintiffs’ medical malpractice claims were not timely filed.

By judgment rendered on June 13, 2006, the trial court maintained in part and overruled in part the exception of prescription as follows:

A) As to defendant Dr. Stewart A. Nutting, the exception of prescription is OVERRULED at exceptor’s costs; and
B) As to defendant Dr. Michael Feder-line, the exception is MAINTAINED dismissing all petitioners’ claims against Dr. Federline with prejudice at petitioners’ costs.

In its reasons for judgment, the trial court found that the medical malpractice claims were filed by plaintiffs in this case on January 8, 1997, based on the letter sent by the PCF to plaintiffs on January 22, 1997 acknowledging receipt of their claims. The trial court further found that prescription began as to Dr. Nutting when plaintiff became aware of the damage incurred, i.e., his stroke on January 9, 1997. Thus, the trial court concluded the claim against Dr. Nutting was timely filed. As to Dr. Federline, the trial court found that the malpractice occurred when the EKG | fiwas allegedly misread on December 31, 1995 and that plaintiffs had knowledge of this error on January 1, 1996 when Mr. Bertoiniere returned to the hospital and was diagnosed with a heart attack. The court concluded that the malpractice against Dr. Federline was prescribed, as it was filed on January 8,1997, one year plus seven days from the discovery of Dr. Fed-erline’s action in failing to diagnose a heart attack.

Plaintiffs now appeal from this ruling arguing that prescription runs not from the date of the wrongful act, but from the damage incurred. Plaintiffs contend the damage incurred by the patient in this case was the stroke he suffered on January 9, 1996, and his malpractice claim filed on January 8, 1997 is therefore timely.

Law and Analysis

The prescriptive period for medical malpractice actions is contained in La. R.S. 9:5628(A) and provides as follows:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, [332]*332dentist, 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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Bluebook (online)
972 So. 2d 328, 7 La.App. 5 Cir. 301, 2007 La. App. LEXIS 2032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertoniere-v-jefferson-parish-hospital-service-district-no-2-lactapp-2007.