Campo v. Correa

797 So. 2d 115, 2001 WL 1359956
CourtLouisiana Court of Appeal
DecidedSeptember 5, 2001
DocketNos. 2000-CA-0625, 2000-CA-2207
StatusPublished
Cited by1 cases

This text of 797 So. 2d 115 (Campo v. Correa) 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
Campo v. Correa, 797 So. 2d 115, 2001 WL 1359956 (La. Ct. App. 2001).

Opinion

h KIRBY, Judge.

Plaintiffs, the Campo Family, seek review of judgments sustaining two Exceptions of Prescription, dismissing their claims with prejudice. The claims arose out of allegations that Dr. Amilcar Correa, a neurosurgeon, breached the standard of care in his treatment of Alvin Campo at Humana Hospital.

STATEMENT OF THE FACTS

Mr. Alvin Campo, who is now deceased and represented by his family in this case, slipped and fell in 1989. The fall caused injury to his back and neck. After the fall Mr. Campo treated with Dr. John D. Olson, a neurologist, for a few weeks.

On or about April 10, 1991, Dr. Correa performed a lumbar laminectomy1 on Mr. Campo in an attempt to alleviate his lower back pain. Dr. Correa explained that complications of this surgery include CSF (cerebral spinal fluid) leak and infection, and Mr. Campo consented to these possible complications. Subsequent to the lumbar surgery by Dr. Correa, Mr. Campo developed a fistula and CSF | ^drainage. On May 7, 1991, Dr. Correa inserted a lumbar peritoneal shunt to treat the CSF leakage. Dr. Correa had told Mr. Campo that the shunt was necessary. Thereafter, Mr. Campo developed an infection. Mr. Cam-po continued to treat with Dr. Correa until October of 1991.

In October of 1993, Mr. Campo saw Dr. Olson, who recommended he see another neurosurgeon. On October 26, 1993, Dr. Charles R. Billings, a neurosurgeon, examined Mr. Campo. Mr. Campo’s petition states that it was at this point he became aware of the act of malpractice.

On March 1,1994, plaintiffs filed a medical malpractice case with the Patients’ Compensation Fund, suggesting there may have been mistreatment in the care of Mr. Campo by the defendants.

On April 1, 1996, the medical review panel ruled that although Dr. Correa had breached the standard of care by placing the shunt into Mr. Campo, the shunt was not responsible for Mr. Campo’s problems and pain. Instead, the panel reasoned that all of Mr. Campo’s complaints stem as recognized complications from his back surgery.

The trial court heard exceptions of prescription from the defendants, Humana Hospital and Dr. Correa. It found that even when basing the act of negligence upon the act that occurred last in chronological order, i.e., the shunt surgery, the claim had prescribed on its face. Moreover, when a petition prescribes on its face, i.e., more than one year has passed since the last alleged act of negligence, the burden shifts to the plaintiff to prove that he did not know or could 13not have known of the essential facts underlying the claim. The trial court found that due to the pain and the infection, Mr. Campo should have known that something was wrong, and he should have filed a suit within a year of that knowledge. Since he did not file suit within that year, and plaintiffs could not produce proof of why they were not made aware of the claim, the trial court granted the defendants’ exceptions of prescription. Plaintiffs appeal the sustaining of these two exceptions of prescription.

STATEMENT OF THE LAW

Generally, the appellate standard of review for a factual finding by a trial court is that of manifest error, or the clearly wrong standard. Netwnan v. Fernwood Transportation, 2000-1036 (La.App. 4 Cir. 4/25/01), 785 So.2d 1026. The reason for this is because the trial court is in the best position to judge credibility. [118]*118This holds true even on an exception, where an evidentiary hearing was conducted. A full-blown trial of the issues is not required for the manifest error standard to apply.

In this case an evidentiary hearing was conducted and the trial court made a factual finding after the hearing. In a medical malpractice action2 the case law shifts the burden of proof and forces the trial court to make a factual finding, i.e., whether there are sufficient facts to justify an interruption or suspension of prescription. Therefore, we apply the manifest error standard of review because the trial court alone had the opportunity to observe the demeanor of all witnesses at the evidentia-ry hearing.

|4The Louisiana Statute that states the prescriptive period for medical malpractice claims is LSA-R.S. 9:5628. In 1991, the time of the alleged malpractice it read:

A. No action for damages for injury or death against any physician, chiropractor, dentist, psychologist, hospital 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, or omission or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; provided, however, that 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. (Emphasis added.)

The burden of proof generally rests on a party pleading prescription as an affirmative defense. However, where the plaintiffs Petition shows on its face that the asserted claim has prescribed, the plaintiff bears the burden of proving that prescription has been sufficiently interrupted or suspended so as to bring the action within the prescriptive period. Wilkes v. Carroll, 30,066 (La.App. 2 Cir. 12/10/97), 704 So.2d 938; see also Caro v. Bradford White Corp., 96-120 (La.App. 5 Cir. 7/30/96), 678 So.2d 615; Acosta v. Campbell 98-2538 (La.App. 4 Cir. 8/11/99), 744 So.2d 112.

When it appears on the face of the petition that prescription has accrued, the plaintiff must allege and prove facts indicating that the essential facts, injury, and its causal relationship to the alleged misconduct were not apparent or discoverable until within one year before the suit was filed. White v. Willis-Knighton Medical Center, 25,575 (La.App. 2 Cir. 2/23/94), 632 So.2d 1198; Acosta, supra.

|fiA review of the record reveals that the plaintiffs’ petition has prescribed on its face. As it concerns Humana Hospital, the last professional visit by Alvin Campo to the hospital was on May 27, 1991. The petition dates the physician’s last act, upon which negligence is alleged, as May of 1991 as well. Discovery is alleged in October of 1993 and the Complaint/Petition was filed on March 1, 1994. Because the plaintiffs’ petition had prescribed on its face, the trial court was correct in shifting the burden of proof to the plaintiffs. Acosta, supra.

The case law tells us that the one year prescriptive period commences on the date that an injured party discovers or should have discovered the facts on which to base a cause of action. LaGrange v. Schumpert Medical Center, 33,541 (La. [119]*119App. 2 Cir. 6/21/00), 766 So.2d 473. This “discovery rule” does not require a plaintiff to have actual knowledge of the alleged wrong; constructive knowledge is sufficient. Phillips v. Hamilton Medical Group, 507 So.2d 277, 279 (La.App. 3 Cir.1987). Prescription commences to accrue when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is a victim of a tort. Percy v. State, E.A. Conway Memorial Hospital, 478 So.2d 670 (La.App. 2 Cir.1985).

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Campo v. Correa
828 So. 2d 502 (Supreme Court of Louisiana, 2002)

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