Blake v. Maley

57 So. 3d 1122
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2011
DocketNos. 46,036-CA, 46,037-CA
StatusPublished
Cited by3 cases

This text of 57 So. 3d 1122 (Blake v. Maley) 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
Blake v. Maley, 57 So. 3d 1122 (La. Ct. App. 2011).

Opinion

CARAWAY, J.

12These two consolidated medical malpractice actions were dismissed with prejudice on the ground that the claims had prescribed. The claimant appeals both judgments. We affirm.

Facts

On June 2, 2004, Beverly Blake, individually, and on behalf of her two minor children, filed a request for a medical review panel, alleging medical malpractice against Dr. Warren Maley and Willis Knighton Medical Center in the treatment of her deceased husband, Barry Blake, who died on January 31, 2004. Specifically Blake alleged as follows:

The family, generally contends that Dr. Maley and the hospital staff breached the applicable standard of medical care by failing to diagnose and treat a fixed drug reaction after an initial dose of Ancef following a surgical procedure consisting of a left wrist fistula ligation with |sleft antecubital fistula formation and placement of internal jugular Per-macath on June 22, 2003; and the negligent administration of a second dose of Ancef on August 15, 2003 by order of Dr. Maley subsequent to a second ad[1124]*1124mission to Wíllis-Knighton Medical Center; a third dose given on August 21, 2003; a fourth dose given on August 22, 2003 during a left arm DRIL procedure and left thigh saphenous vein harvest; a fifth dose given on August 25, 2003 preceding a penile circumcision and biopsy performed by Dr. Kevin Cline; and a sixth dose given perioperatively during this procedure. The fixed drug reaction caused peripheral vascular ischemia among other medical complications which led to the subsequent amputation of Mr. Blake’s left hand, four fingers of his right hand, his right great toe, a partial penectomy, and a left below-knee amputation, as well as other complications set forth in Mr. Blake’s medical records.

On June 16, 2004, Blake supplemented the request for a medical review panel and named as additional defendants, LSU Health Sciences Center and Dr. Kevin Cline.

On May 15, 2007, the medical review panel unanimously ruled in favor of all defendants. The medical review panel decision, mailed on May 25, 2007, included written reasons which stated as follows:

Having reviewed all the evidence submitted and the allegations that Drs. Ma-ley and Cline failed to make the diagnosis of a fixed drug eruption in a timely fashion, we cannot support that supposition. Although we recognize that fixed drug eruption was suggested as a diagnosis by Dr. Haynie, the dermatologist, we do not feel that diagnosis can be absolutely confirmed in a patient with the commonly seen sequelae of a patient with severe vascular disease, renal failure and diabetes. We also question as to whether the antibiotic Ancef was ^established as the drug or agent which would have led to this process, if it existed.
In view of that we cannot support the suggestion that failure to make that diagnosis during the course of this patient’s care would fall beneath the standard of care. The decision making during his care was reasonable and appropriate.
We find the care provided by the hospitals involved met the standard of care.

On July 6, 2007, Blake wrote to counsel for Dr. Cline informing him that her attorney was no longer handling the case but that a settlement was still possible. No settlement of the matter occurred nor was a lawsuit filed by Blake.

On July 18, 2009, Blake wrote the Louisiana Commissioner of Administration, Division of Administration, requesting a “review of the medical review panel decision.” Blake alleged that she became very ill shortly after the medical panel decision and was “unable and in no condition to handle any of my personal business.” Blake alleged that her attorney had discontinued his service “without any explanation to me.” She claimed that “because of [her] illness, [she] was unaware of what [she] needed to do to continue with this matter.” On August 28, 2009, Blake sent a letter to the Louisiana Patient’s Compensation Fund (“PCF”) informing it of her choice “to re-file a request for a medical review panel” arising out of Drs. Maley |5and Cline’s administration of Ancef to her husband in June through August of 2003.

On October 7, 2009, the PCF notified Blake that it had set the matter up as PCF No.2009-01115. The letter further informed Blake that the PCF had no records on Dr. Warren Maley. A second letter from the PCF informed Blake that it had received her $100 fee and was instituting the medical review panel action. By letter to the PCF on October 12, 2009, Blake added Willis-Knighton and Donna Hall, [1125]*1125Barry Blake’s attending nurse, to the claim.

On December 8, 2009, both Dr. Cline and Willis-Knighton filed exceptions of prescription. Hall followed on January 13, 2010, adopting by reference the arguments made by Willis-Knighton. All parties argued the provisions of La. R.S. 9:5628 which read as follows in relevant 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. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, 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; 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.
lfiB. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Further, Willis-Knighton cited La. R.S. 40:1299.47(B)(3) which provides for the suspension of prescription during the medical review panel process as follows:

B. (l)(a)(i) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.
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(3) Ninety days after the notification to all parties by certified mail by the attorney chairman of the board of the dissolution of the medical review panel or ninety days after the expiration of any court-ordered extension as authorized by Paragraph (1) of this Subsection, the suspension of the running of prescription with respect to a qualified health care provider shall cease.

Blake opposed the exceptions urging her entitlement to a new medical review panel because none of the physicians who comprised the first panel was a dermatologist. Further, Blake argued that she became ill with chronic depression and anxiety before she could further pursue the claim and after her counsel withdrew from the case. Thus, Blake claimed mental incapacity to timely file the suit.

|7A hearing on the exceptions occurred on May 10, 2010. Blake argued that her attorney did not give her enough notice to file the malpractice claim within the 90-day period. The trial judge granted each defendant’s exception and dismissed all claims with prejudice.

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Related

Leija v. Ford Motor Co.
161 So. 3d 1020 (Louisiana Court of Appeal, 2015)
Blake v. Maley
181 L. Ed. 2d 97 (Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
57 So. 3d 1122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blake-v-maley-lactapp-2011.