STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-920
IN RE: COLLEEN MCDANEL
**********
SUPERVISORY WRIT FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 262,924 HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
WRIT DENIED.
Brandon A. Sues Eugene J. Sues Sarah S. Couvillon Gold, Weems, Bruser, Sues, & Rundell P. O. Box 6118 Alexandria, LA 71307-6118 (318) 445-6471 COUNSEL FOR DEFENDANT/APPLICANT: John S. McCabe, M.D. Mary K. Beaird Attorney at Law 303 East Texas Street Leesville, LA 71446 (337) 944-0299 COUNSEL FOR PLAINTIFF/RESPONDENT: Colleen McDanel SAUNDERS, Judge.
Relator, Dr. John S. McCabe, seeks supervisory writs from the judgment of
the Ninth Judicial District Court, Parish of Rapides, the Honorable George Clarence
Metoyer, Jr., presiding, which denied Relator’s exception of prescription.
STATEMENT OF THE CASE
This case involves a medical malpractice action which is still pending before
a medical review panel. On September 6, 2016, Relator performed an abdominal
panniculectomy with abdominoplasty, or tummy tuck, on Plaintiff, Colleen
McDanel. On September 12, 2016, Plaintiff had a follow-up visit with Relator at
which time Relator allegedly yanked the tubes out of Plaintiff’s stomach, causing
her severe pain and emotional anguish. Plaintiff also alleges that when she went to
have her stitches removed on September 21, 2016, Relator yanked the stitches so
aggressively that he pulled a chunk of her skin off with a stitch. Plaintiff contends
that due to Relator’s rudeness and roughness with removing her stiches, she began
seeing another physician, Dr. Herbert McGuire, for post-operative treatment. Dr.
McGuire, who works in the same facility as Relator, advised Plaintiff that she should
undergo a follow-up scar revision surgery because she had a “prominent dogear with
some skin folds over the dogear.” Because Dr. McGuire and Relator work in the
same facility, Plaintiff decided to obtain an opinion from a physician who does not
work with Relator. On April 4, 2018, Plaintiff began to treat with Dr. Mary Tschoi
Kim at University Health of Shreveport. Dr. Kim advised Plaintiff that she needed
to undergo a revision surgery and that the tummy tuck surgery should never have
been performed on Plaintiff due to a preexisting scar located on her right abdomen.
On October 11, 2017, Plaintiff filed a medical review panel complaint with
the Louisiana Patients’ Compensation Fund (PCF) against Relator and Rapides
Regional Medical Center alleging that her stomach is deformed and has not healed properly due to Relator’s negligence. That complaint was deemed invalid on
December 22, 2017, due to Plaintiff’s failure to pay the filing fee. However, Plaintiff
filed a second complaint with the PCF on January 30, 2018. As is permitted by
La.R.S. 40:1231.8(B)(2)(a), Relator filed an exception of prescription in the trial
court while the case is still pending before the PCF. The trial court denied Relator’s
exception of prescription, and Relator now seeks review of that ruling.
SUPERVISORY RELIEF
The denial of a peremptory exception is not appealable absent irreparable
injury, but the denial can be reviewed on supervisory writs where it fits the criteria
of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396
So.2d 878 (La.1981); Reilly v. State, 533 So.2d 1341 (La.App. 3 Cir. 1988), writ
denied, 536 So.2d 1219 (La.1989).
ON THE MERITS
Relator asserts that the trial court erred when it denied his exception of
prescription. Relator notes that pursuant to La.R.S. 9:5628(A), medical malpractice
actions must be filed within one year from the date of the alleged negligent act or
within one year of the date of discovery of the alleged negligent act, provided that
the claims be filed no later than three years from the date of the alleged negligent act
in order to be considered timely. In the instant case, Relator contends that since
Plaintiff’s claim arises out of alleged acts of malpractice that occurred when Relator
provided medical care to Plaintiff in September 2016, the one-year prescriptive
period expired in September 2017. Thus, Relator argues that Plaintiff’s malpractice
claim against him prescribed well before January 30, 2017, which is when the
Plaintiff’s second complaint was filed with the PCF. Also, Relator argues that
Plaintiff’s initial PCF complaint, which was filed on October 11, 2017, and which
2 was subsequently deemed to be without effect due to nonpayment of filing fees, was
also filed after the prescriptive period had expired.
Relator asserts that because Plaintiff’s complaint is prescribed on its face, the
burden shifts to Plaintiff to prove that her claim is not prescribed. Relator argues
that the trial court abused its discretion when it allowed Plaintiff, over Relator’s
objection, to introduce uncertified medical records into evidence at the hearing on
the exception of prescription. Relator contends that Plaintiff introduced multiple
incomplete and uncertified medical records such as an uncertified office note from
Dr. McGuire, an uncertified provider sheet, and uncertified medical records and
invoice from Dr. Kim. However, Relator maintains that La.R.S. 13:3714 authorizes
the admission of only those medical records which have been certified by a health
care provider or signed by the administrator or medical records librarian of a hospital.
Relator argues that since Plaintiff’s exhibits were not properly signed by the
administrator or the medical records librarian of the health care providers at issue,
they should not have been admitted and considered by the trial court.
Relator notes that this court has stated the following: Louisiana Revised Statute 9:5628’s one-year prescriptive period commences running on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. In other words, constructive knowledge is sufficient to trigger the running of prescription, and the plaintiff is deemed to know that which he could have learned through reasonable diligence. The heart of the inquiry is the reasonableness of the plaintiff’s action or inaction. This inquiry requires consideration of the her [sic] education, intelligence, and the gravity of her condition, as well as the defendant’s conduct. Reasonability is a factual determination which an appellate court cannot disturb, absent a finding of manifest error.
Braud v. Cenac, 03-1696, p. 6 (La.App. 3 Cir. 7/14/04), 879 So.2d 896, 902-03, writ
denied, 04-2101 (La. 11/15/04), 887 So.2d 484 (citations, footnotes, and internal
quotation marks omitted).
3 In the instant case, Relator asserts that Plaintiff did not present any admissible
evidence to prove the date of discovery of her cause of action for her malpractice
claim. Nonetheless, Relator contends that even if the inadmissible evidence which
Plaintiff submitted was considered, the key inquiry is the reasonableness of
Plaintiff’s inaction until January 30, 2018, which is when she filed her medical
malpractice claim. Relator notes that Plaintiff alleges that her stomach has not
healed and is deformed. Relator contends that looking at an unhealed and deformed
stomach in the mirror would excite the attention of a reasonable person and cause
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-920
IN RE: COLLEEN MCDANEL
**********
SUPERVISORY WRIT FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 262,924 HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
WRIT DENIED.
Brandon A. Sues Eugene J. Sues Sarah S. Couvillon Gold, Weems, Bruser, Sues, & Rundell P. O. Box 6118 Alexandria, LA 71307-6118 (318) 445-6471 COUNSEL FOR DEFENDANT/APPLICANT: John S. McCabe, M.D. Mary K. Beaird Attorney at Law 303 East Texas Street Leesville, LA 71446 (337) 944-0299 COUNSEL FOR PLAINTIFF/RESPONDENT: Colleen McDanel SAUNDERS, Judge.
Relator, Dr. John S. McCabe, seeks supervisory writs from the judgment of
the Ninth Judicial District Court, Parish of Rapides, the Honorable George Clarence
Metoyer, Jr., presiding, which denied Relator’s exception of prescription.
STATEMENT OF THE CASE
This case involves a medical malpractice action which is still pending before
a medical review panel. On September 6, 2016, Relator performed an abdominal
panniculectomy with abdominoplasty, or tummy tuck, on Plaintiff, Colleen
McDanel. On September 12, 2016, Plaintiff had a follow-up visit with Relator at
which time Relator allegedly yanked the tubes out of Plaintiff’s stomach, causing
her severe pain and emotional anguish. Plaintiff also alleges that when she went to
have her stitches removed on September 21, 2016, Relator yanked the stitches so
aggressively that he pulled a chunk of her skin off with a stitch. Plaintiff contends
that due to Relator’s rudeness and roughness with removing her stiches, she began
seeing another physician, Dr. Herbert McGuire, for post-operative treatment. Dr.
McGuire, who works in the same facility as Relator, advised Plaintiff that she should
undergo a follow-up scar revision surgery because she had a “prominent dogear with
some skin folds over the dogear.” Because Dr. McGuire and Relator work in the
same facility, Plaintiff decided to obtain an opinion from a physician who does not
work with Relator. On April 4, 2018, Plaintiff began to treat with Dr. Mary Tschoi
Kim at University Health of Shreveport. Dr. Kim advised Plaintiff that she needed
to undergo a revision surgery and that the tummy tuck surgery should never have
been performed on Plaintiff due to a preexisting scar located on her right abdomen.
On October 11, 2017, Plaintiff filed a medical review panel complaint with
the Louisiana Patients’ Compensation Fund (PCF) against Relator and Rapides
Regional Medical Center alleging that her stomach is deformed and has not healed properly due to Relator’s negligence. That complaint was deemed invalid on
December 22, 2017, due to Plaintiff’s failure to pay the filing fee. However, Plaintiff
filed a second complaint with the PCF on January 30, 2018. As is permitted by
La.R.S. 40:1231.8(B)(2)(a), Relator filed an exception of prescription in the trial
court while the case is still pending before the PCF. The trial court denied Relator’s
exception of prescription, and Relator now seeks review of that ruling.
SUPERVISORY RELIEF
The denial of a peremptory exception is not appealable absent irreparable
injury, but the denial can be reviewed on supervisory writs where it fits the criteria
of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396
So.2d 878 (La.1981); Reilly v. State, 533 So.2d 1341 (La.App. 3 Cir. 1988), writ
denied, 536 So.2d 1219 (La.1989).
ON THE MERITS
Relator asserts that the trial court erred when it denied his exception of
prescription. Relator notes that pursuant to La.R.S. 9:5628(A), medical malpractice
actions must be filed within one year from the date of the alleged negligent act or
within one year of the date of discovery of the alleged negligent act, provided that
the claims be filed no later than three years from the date of the alleged negligent act
in order to be considered timely. In the instant case, Relator contends that since
Plaintiff’s claim arises out of alleged acts of malpractice that occurred when Relator
provided medical care to Plaintiff in September 2016, the one-year prescriptive
period expired in September 2017. Thus, Relator argues that Plaintiff’s malpractice
claim against him prescribed well before January 30, 2017, which is when the
Plaintiff’s second complaint was filed with the PCF. Also, Relator argues that
Plaintiff’s initial PCF complaint, which was filed on October 11, 2017, and which
2 was subsequently deemed to be without effect due to nonpayment of filing fees, was
also filed after the prescriptive period had expired.
Relator asserts that because Plaintiff’s complaint is prescribed on its face, the
burden shifts to Plaintiff to prove that her claim is not prescribed. Relator argues
that the trial court abused its discretion when it allowed Plaintiff, over Relator’s
objection, to introduce uncertified medical records into evidence at the hearing on
the exception of prescription. Relator contends that Plaintiff introduced multiple
incomplete and uncertified medical records such as an uncertified office note from
Dr. McGuire, an uncertified provider sheet, and uncertified medical records and
invoice from Dr. Kim. However, Relator maintains that La.R.S. 13:3714 authorizes
the admission of only those medical records which have been certified by a health
care provider or signed by the administrator or medical records librarian of a hospital.
Relator argues that since Plaintiff’s exhibits were not properly signed by the
administrator or the medical records librarian of the health care providers at issue,
they should not have been admitted and considered by the trial court.
Relator notes that this court has stated the following: Louisiana Revised Statute 9:5628’s one-year prescriptive period commences running on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. In other words, constructive knowledge is sufficient to trigger the running of prescription, and the plaintiff is deemed to know that which he could have learned through reasonable diligence. The heart of the inquiry is the reasonableness of the plaintiff’s action or inaction. This inquiry requires consideration of the her [sic] education, intelligence, and the gravity of her condition, as well as the defendant’s conduct. Reasonability is a factual determination which an appellate court cannot disturb, absent a finding of manifest error.
Braud v. Cenac, 03-1696, p. 6 (La.App. 3 Cir. 7/14/04), 879 So.2d 896, 902-03, writ
denied, 04-2101 (La. 11/15/04), 887 So.2d 484 (citations, footnotes, and internal
quotation marks omitted).
3 In the instant case, Relator asserts that Plaintiff did not present any admissible
evidence to prove the date of discovery of her cause of action for her malpractice
claim. Nonetheless, Relator contends that even if the inadmissible evidence which
Plaintiff submitted was considered, the key inquiry is the reasonableness of
Plaintiff’s inaction until January 30, 2018, which is when she filed her medical
malpractice claim. Relator notes that Plaintiff alleges that her stomach has not
healed and is deformed. Relator contends that looking at an unhealed and deformed
stomach in the mirror would excite the attention of a reasonable person and cause
that person to inquire about possible malpractice. Also, Relator contends that the
evidence shows that Plaintiff wanted a second opinion before January 30, 2017,
which was a year before her complaint was filed. Relator maintains that Plaintiff
was aware of her dissatisfaction with Relator’s services and the results of her surgery
as early as September 21, 2016, when she terminated her treatment with Relator.
In her opposition to the instant writ application, Plaintiff asserts that the
exception of prescription was properly denied. Plaintiff contends that Relator is
incorrect in its assertion that La.R.S. 13:3714 serves to ban the admission of
evidence. Instead, Plaintiff contends that statute merely dictates the proof of the
document’s content. Relator also contends that the medical records that she
submitted into evidence were admissible under La.Code Evid. art. 803 because they
were not introduced to prove the truth of the matter asserted but rather, they were
introduced to show that Plaintiff was continuing treatment with Relator and another
doctor at the same facility. Also, Plaintiff asserts that the records contain a doctor’s
electronic signature and, at the very least, were kept in the ordinary course of
business.
Furthermore, Plaintiff maintains that the same medical records which Relator
did not want Plaintiff to introduce into the record, due to a lack of certification, were 4 introduced, with certification, by Relator. Plaintiff contends that in support of her
opposition to the exception of prescription, she merely used an excerpt from the
same medical records that Relator has introduced. Plaintiff argues that even if some
or all of her exhibits are deemed inadmissible, the certified medical records
submitted by Relator should be sufficient to show that Plaintiff had no knowledge
of the malpractice until well after the date of her surgery and within a year of the
date of filing for her malpractice complaint. In that regard, Plaintiff contends that
the records show that Relator told Plaintiff that her surgery had gone well and show
that another doctor at Relator’s facility (Dr. McGuire) had specifically indicated that
there was no malpractice by Relator. Plaintiff maintains that she was prevented from
discovering her cause of action for malpractice because Relator’s facility was
assuring her up to February 7, 2017, that her results were normal for the type of
surgery she had undergone. Plaintiff contends that is was at that point that she
decided to get another medical opinion and began treating with Dr. Kim on April 4,
2018. Plaintiff maintains that it was during her treatment with Dr. Kim she finally
realized that she had a claim for malpractice. Plaintiff contends that she, being a real
estate agent with average intelligence, did not conclude that a malpractice had been
committed just because she was dissatisfied with the results of her surgery.
Pursuant to La.R.S. 9:5628(A), a medical malpractice action may be brought
within one year of discovery that a malpractice has been committed, provided that
the claim is filed within three years of the act of malpractice. Therefore, we find
that there is merit to Plaintiff’s argument that her claim is timely under the discovery
rule. We find that although Plaintiff had some dissatisfaction with the outcome of
her surgery of September 2016, she was being assured by Relator and Dr. McGuire
that the surgery had gone well and that her post-surgery symptoms were normal. We
agree with Plaintiff’s proposition that such assurances delayed Plaintiff’s discovery 5 of the fact that she had been a victim of a malpractice. Inasmuch as her complaint
was filed within a year of the alleged discovery of malpractice and within three years
after the surgery was performed, we therefore hold that the trial court did not abuse
its discretion in denying Relator’s exception of prescription. Accordingly, we
affirm the trial court’s ruling on this issue.
WRIT DENIED. We find no error in the trial court’s ruling.