STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-559
IN RE: DANA BROUSSARD MEDICAL REVIEW PANEL
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2022-1264, DIVISION C HONORABLE THOMAS FREDERICK, DISTRICT JUDGE
**********
SHARON DARVILLE WILSON JUDGE
********** Court composed of Shannon J. Gremillion, Candyce G. Perret, and Sharon Darville Wilson, Judges.
AFFIRMED. Adam P. Gulotta Judice & Adley (A Professional Law Corporation) Post Office Drawer 51769 Lafayette, Louisiana 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANT/APPELLEE: Dr. Ilyas Munshi
John L. Hammons Cornell R. Flournoy William W. Murray, Jr. R. Clayton Christian Nelson & Hammons A Professional Law Corporation 705 Milam Street Shreveport, Louisiana 71101 (318) 227-2401 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dana Broussard and Byron Broussard
J. Ryan Pierret Judice & Adley (A Professional Law Corporation) Post Office Drawer 51769 Lafayette, Louisiana 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANT/APPELLEE: Dr. Eric Powell Trawick WILSON, Judge.
In this medical malpractice suit, the patient, Dana Broussard (Mrs.
Broussard), and her husband, Byron Broussard (hereinafter collectively referred to
as the Broussards), appeal the dismissal of their claims by the granting of exceptions
of prescription brought on behalf of the healthcare providers, Dr. Ilyas Munshi (Dr.
Munshi) and Dr. Eric Powell Trawick (Dr. Trawick).
I.
ISSUES
The Broussards allege two assignments of error. First, they argue that the trial
court erred in failing to find that the date of discovery of their causes of action was
November 16, 2020. Second, the Broussards assert that the trial court erred in failing
to apply the “uncalled witness” rule set forth in Driscoll v. Stucker, 04-589 (La.
1/19/05), 893 So.2d 32, and its corresponding adverse presumption because neither
Dr. Munshi nor Dr. Trawick testified at the hearing on the exceptions of prescription.
II.
FACTS AND PROCEDURAL HISTORY
On August 6, 2019, Mrs. Broussard, who worked as a hairdresser, saw Dr.
Munshi, a neurosurgeon, for complaints of constant neck pain radiating into her right
upper extremity. On August 12, 2019, Dr. Munshi performed a cervical discectomy
with the placement of hardware. Dr. Munshi also performed a right carpal tunnel
release at that time. Mrs. Broussard was discharged from Lafayette General Medical
Center the following day.
Postoperatively, Mrs. Broussard complained of discomfort in her throat. She
saw Dr. Munshi on August 27, 2019, and October 8, 2019, and continued to
complain of cervical pain. Dr. Munshi ordered physical therapy and an MRI of the cervical spine. On October 16, 2019, the MRI, with and without contrast, was
completed. The radiologist, Dr. Mark Stephan (Dr. Stephan), interpreted the MRI
as showing “some hardware effacement[.]” An X-ray of the cervical spine was also
performed on October 16, 2019. On the report of that X-ray, Dr. Stephan noted, in
part, that “[n]o broken hardware is identified. There is an approximate 2 mm interval
between the anterior aspect of the C5 vertebral body in the posterior aspect of the
cortical plate at this level. Correlate clinically.”
On October 23, 2019, Mrs. Broussard underwent an upper GI series ordered
by her internist, Dr. Patrick Griffith (Dr. Griffith). Mrs. Broussard continued to
complain of pain and reported the sensation of having something stuck in her throat
to Dr. Munshi on October 24, 2019. This was the last time that Dr. Munshi treated
Mrs. Broussard. He and Dr. Griffith referred Mrs. Broussard to Dr. Trawick, a
gastroenterologist, who diagnosed an esophageal stricture and performed a dilation
of the esophagus. Mrs. Broussard also had an esophageal motility study done in
June of 2020.
On November 16, 2020, Mrs. Broussard was evaluated by an orthodontist, Dr.
John Moffett, for complaints associated with temporomandibular joint dysfunction
(TMJ). Dr. Moffett ordered a panoramic X-ray, and the film was shown to Mrs.
Broussard by the person who took the X-ray. Mrs. Broussard indicated that she took
a picture of the X-ray and went home and looked online for what discectomies
looked like and noticed that hers did not look the same as the pictures she found
online. Mrs. Broussard alleges that this X-ray revealed that the hardware from her
cervical surgery was out of position.
Mrs. Broussard took the picture of her panoramic X-ray to Dr. Griffith, who
ordered X-rays of Mrs. Broussard’s cervical spine. These were performed on 2 December 7, 2020. The report in Dr. Griffith’s records noted that Mrs. Broussard
“states feels like something is in throat since surgery[.]” The radiologist, Dr. Al
Rozas, noted his findings, in part, as “Orthopedic hardware traverses anterior aspects
of C5-C7 with the superior anchoring screws appearing to have migrated out of the
C5 vertebral body and into the disc space of C4-C5 and the body of the fixation plate
having migrated anteriorly.”
On December 14, 2020, on the referral of Dr. Griffith, Mrs. Broussard saw
Dr. Jayme Trahan, a neurosurgeon, for her continued complaints of neck pain. Mrs.
Broussard alleges that Dr. Trahan explained to her that the mal-positioned hardware,
which was noted on the October 16, 2019 MRI, was the cause of her complaints,
symptoms, and complications. Dr. Trahan recommended revision surgery to remove
the hardware, and that surgery was performed by Dr. Jason Cormier on January 19,
2021.
Dr. Munshi and Dr. Trawick, at all times pertinent herein, were qualified
healthcare providers pursuant to the Louisiana Medical Malpractice Act. Therefore,
on September 8, 2021, the Broussards filed a complaint requesting the formation of
a Medical Review Panel to review the allegations of medical malpractice against Dr.
Munshi and Dr. Trawick. The Broussards alleged that the date of discovery of their
claims was November 16, 2020. Mrs. Broussard alleged that she suffered damages
as a result of Dr. Munshi’s failure to properly position the hardware during surgery
and from his alleged failure to address the problems associated with the hardware
positioning during the postoperative period. Mrs. Broussard further alleged that she
suffered damages from the negligent, ill-advised, and needless esophageal dilation
performed by Dr. Trawick.
3 In response to the filing of the complaint, Dr. Munshi filed a petition in the
district court to have a docket number assigned to the pending Medical Review Panel
proceeding so that he could file an exception of prescription. After the order
assigning a docket number was signed, Dr. Munshi and Dr. Trawick each filed an
exception of prescription alleging that the complaint dated September 8, 2021, was
filed well beyond the applicable prescriptive period.
The hearing on both exceptions of prescription was held on May 16, 2022.
Mrs. Broussard testified at the hearing, and documents, including certified medical
records and the transcript of Mrs. Broussard’s deposition, were introduced into
evidence. At the hearing, the trial court sustained the exceptions of prescription and
found “that there were multiple occasions where the plaintiff displayed signs of
constructive notice prior to September of 2020.” The trial court also found that the
doctrine of contra non valentem was inapplicable because there was “no evidence
that anyone intentionally concealed the results of an MRI or any x-rays.”
A judgment sustaining the exception of prescription filed by Dr. Munshi and
dismissing, with prejudice, all of the claims against him was signed on May 23,
2022. A judgment sustaining the exception of prescription filed by Dr. Trawick and
dismissing, with prejudice, all of the claims against him was signed on May 23,
2022. This timely devolutive appeal by the Broussards followed.
III.
STANDARD OF REVIEW
“[T]he standard of review of a judgment pertaining to an exception of
prescription turns on whether evidence is introduced at the hearing of the exception.”
Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-61, p. 4 (La. 10/10/21), 333
So.3d 368, 373. When no evidence is submitted, “the exception ‘must be decided 4 upon the facts alleged in the petition with all of the allegations accepted as true[,]’”
and the reviewing court makes a determination whether the trial court’s decision was
legally correct. Id. (quoting Lomont v. Bennett, 14-2483, p. 8 (La. 6/30/15), 172
So.3d 620, 627, cert. denied, 577 U.S. 119, 136 S.Ct. 1167 (2016)). “When evidence
is introduced at the hearing, a court need not accept the allegations of the petition as
true, and the lower court decisions are to be reviewed under a manifest error-clearly
wrong standard of review.” Mitchell, 333 So.3d at 373. If the factual findings of
the trial court “are reasonable in light of the record reviewed in its entirety, an
appellate court cannot reverse even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” Lomont, 172 So.3d at
627.
In this case, evidence was introduced and testimony was given at the hearing
on the exceptions of prescription. Accordingly, we will apply the manifest error-
clearly wrong standard of review. Mitchell, 333 So.3d 365.
IV.
LAW AND DISCUSSION
The applicable prescriptive period is set forth in La.R.S. 9:5628(A):
No action for damages for injury or death against any physician . . . duly licensed under the laws of this state . . ., 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.
The threshold issue that must be determined by this court is the date of
discovery of the alleged malpractice.
5 Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir. 1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir. 1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Ins[.] Co., 353 So.2d 1051 (La.App. 2 Cir. 1977); Opelousas Gen[.] Hosp[.] v. Guillory, 429 So.2d 550 (La.App. 3 Cir. 1983). Nevertheless, a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Griffin v. Kinberger, 507 So.2d 821 (La.1987). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. See Griffin, 507 So.2d at 821.
Campo v. Correa, 01-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502, 510-511
(emphasis in original).
Mrs. Broussard alleges that the date of discovery was November 16, 2020,
when the panoramic X-ray was performed by Dr. Moffett. Mrs. Broussard argues
that she was evaluated by four different physicians (Dr. Munshi, Dr. Trawick, Dr.
Stephan, and Dr. Griffith)1 between the date of the surgery, August 12, 2019, and
the date of the panoramic X-ray on November 16, 2020, and that all four of them
knew or should have known of the hardware effacement shown on the October 16,
2019 MRI but failed to advise her of those results. Mrs. Broussard alleges that the
1 Neither Dr. Stephan nor Dr. Griffith are named as defendants in the Broussards’ medical malpractice complaint. 6 conduct of Dr. Munshi and Dr. Trawick prevented her from discovering the “true
facts and circumstances that would have explained [her] continued postoperative
complaints and complications.”
Contra non valentem is “a jurisprudentially-created exception to prescription,
adopted to ‘soften the harshness of prescriptive statutes[.]’” Mitchell, 333 So.3d at
374 (quoting Carter v. Haygood, 04-646, p. 11 (La. 1/19/05), 892 So.2d 1261, 1268).
The exception generally provides that “prescription does not run against a person
who could not bring his suit.” Carter, 892 So.2d at 1268. There are four categories
of contra non valentem recognized by Louisiana law:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.
Id.
The third category applies when the physician “himself has done some act
effectually to prevent the victim from availing himself of his cause of action for
medical malpractice.” Fontenot v. ABC Ins. Co., 95-1707, p. 5 (La. 6/7/96), 674
So.2d 960, 963. However, “[t]o trigger application of the third category, a
physician’s conduct must rise to the level of concealment, misrepresentation, fraud
or ill practices.” Id. “The jurisprudence establishes that, to defeat a well-founded
exception of prescription, it is ‘necessary for a plaintiff to prove ill motive or
intentional concealment on the physician’s part.’ Without such proof the exception
must be maintained.” McCauley v. Stubbs, 17-933, p. 7 (La.App. 3 Cir. 4/25/18),
245 So.3d 41, 46-47 [quoting Braud v. Cenac, 03-1696, p. 5 (La.App. 3 Cir. 7 7/14/04), 879 So.2d 896, 901, writ denied, 04-2101 (La. 11/15/04), 887 So.2d 484].
In McCauley, this court found no proof of fraud, misrepresentation, or intentional
concealment because the plaintiff presented no evidence that “he was denied access
to his medical records or was prevented from seeking other medical treatment” and
where the defendant physician’s office notes indicated that a second opinion with
another physician “may be considered.” Id.
Dr. Munshi alleged that, based on Mrs. Broussard’s own testimony, “she knew
or should have known of the alleged malpractice almost immediately after the
surgery, but no later than two months after surgery.” In her deposition, taken
February 7, 2022, Mrs. Broussard testified as follows:
Q You went to see Dr. Griffith August 29, 2019, so that’s about three weeks after your surgery.
A Yes.
Q You saw him, it looks like, for some sinus problems.
A Yeah. I didn’t know what was - - . . . I was bothered here so I went and told him . . . I had surgery[,] and I wanted to know if he thought it was anything to do with my surgery or was it, you know, I wanted him to look in my throat and see if I was having some . . . allergy stuff. And he said, yeah, that I - - I did have some allergy things going on with my . . .
....
Q . . . and this is from January 11 of 2021[.]
Q “Feels like she’s had something in her throat since surgery with Dr. Munshi on August 12 of 2019.” So that’s pretty much since the time . . . you had the procedure, you felt that way?
A Um-hmm, yes, correct.
Q You’d been in constant pain?
A Yes. 8 Q Is that the pain that you were describing earlier, the neck and the --
Q - - back of your throat?
Q Said, it feel [sic] like you need to vomit?
Q Okay. And when you move your neck in certain positions, feels like it sticks from the front to back. You haven’t quite used that language yet, so - - so explain what that means.
A It - - it means that from front to back, it’s, like, it feels like something stick - - it’s sticking me in the throat all the time. I don’t know how else to say it.
Q Gotcha. And that has been present since the surgery?
Q Okay. And then, the next time, so this all started immediately after surgery, is that - - is that right?
A Yeah, I mean, definitely I felt different after the surgery than I ever felt before in my life. ....
Q . . . And I guess what I’m asking is . . . did you personally go, “I wonder if this is because of the surgery”? That’s what I’m asking.
A Again, I was just confused. I mean, at first yeah, absolutely. Yeah, I guess I would say yeah. Yeah, yes.
Q Gotcha.
A Because I felt . . . totally different after the surgery than I ever felt before. So, why wouldn’t it be from the surgery? . . . I guess 9 that’s why I kept seeking and, you know, trying to find out what the heck is wrong, or whatever, you know.
Dr. Munshi asserts that “[a] reasonable person who ‘felt different after surgery
than I ever felt before in my life’ would be in a position to call for an inquiry.” Dr.
Munshi also asserts that on October 24, 2019, he referred Mrs. Broussard to Dr.
Trawick “specifically for the purpose of investigating a complaint that she had
related to dysphagia and feeling something poking her throat.” According to Dr.
Munshi, October 24, 2019, is the date on which “Mrs. Broussard had sufficient
information to excite the curiosity of a reasonable person” such that her complaint
filed on September 8, 2021, was well beyond the one-year prescriptive period.
Dr. Munshi further argues that since he did not treat Mrs. Broussard after
October 24, 2019, the third category of contra non valentem does not apply because
there was no continuing treatment and because there was no evidence that Dr.
Munshi concealed, misrepresented, or fraudulently misled Mrs. Broussard. In fact,
Dr. Munshi cites the following testimony elicited from Mrs. Broussard at the hearing
on the exceptions of prescription:
Q Ma’am, Dr. Munshi never prevented you from obtaining your medical records, correct?
A No.
Q And you’d agree that Dr. Munshi would listen to your complaints, right?
Q And he would investigate those. That’s why he ordered the x- rays and the MRIs, right?
Q And that’s actually why he sent you over to Dr. Trawick, right?
A Right. 10 Q Because you reported you were having some swallowing problems, poking in the neck?
Q And so Dr. Munshi specifically sent you to that doctor, that specialist for those issues?
Dr. Trawick alleged that Mrs. Broussard “had actual and/or constructive
notice of the alleged negligent acts of Dr. Trawick which caused the commencement
of the prescriptive period . . . on November 11, 2019[,] or at the latest July 6, 2020.”
Dr. Trawick pointed out that the medical records sent to him from Dr. Griffith
contained a radiology report dated October 23, 2019, from an upper GI fluoroscopy
ordered by Dr. Griffith, which indicated that Mrs. Broussard stated that “hardware
pushing on esophagus shown on MRI.”2 When questioned about this at the hearing
on the exceptions, Mrs. Broussard stated that the radiologist might have “assumed”
this information because she “cannot see inside my body[,] and no one had ever told
me that.”
Dr. Trawick also pointed out that during a telehealth visit on July 6, 2020, his
family nurse practitioner, Susan Miedecke, noted that Mrs. Broussard stated that she
had a plate put in her neck on August 12, 2019, and that “she feels this is what causes
her to have dysphagia.” Dr. Trawick points out several times in brief that he was
not in possession of any radiological study or report actually showing that the
surgical hardware was pushing on Mrs. Broussard’s esophagus. He also points to
Mrs. Broussard’s testimony that she did not know whether Dr. Trawick had a copy
of any X-ray films or reports. Dr. Trawick asserts that the medical records show that
2 The radiologist who signed this report is Dr. Jerome Gallien. 11 Mrs. Broussard had knowledge of the hardware issue and demonstrated that
knowledge on more than one occasion.
Thus, we find that the medical records and Mrs. Broussard’s own testimony
establish that she had constructive notice of her malpractice claim prior to the alleged
date of discovery, November 16, 2020. We note that the records of Dr. Griffith, who
is Mrs. Broussard’s primary physician and who is not a defendant in these
proceedings, contain reports documenting that Mrs. Broussard told healthcare
providers as early as October 23, 2019, that she thought the hardware from the
surgery performed by Dr. Munshi was “pushing” on her esophagus. Despite Mrs.
Broussard’s testimony that she has no control over what is put into the medical
records, there are multiple notations in the charts of multiple physicians indicating
that Mrs. Broussard related her complaints to the hardware placed during the surgery
performed by Dr. Munshi and that these complaints started almost immediately after
the surgery. Mrs. Broussard’s own testimony, as quoted above, establishes that
neither Dr. Munshi nor Dr. Trawick intentionally concealed information from her or
misrepresented anything to her.
For these reasons, we find that the trial court was not manifestly erroneous in
finding that Mrs. Broussard had constructive notice of her claim prior to September
of 2020, or in its finding that the doctrine of contra non valentem is inapplicable to
this case.
We next address the Broussards’ contention that the trial court erred in not
applying the “uncalled witness” rule set forth in Driscoll, 893 So.2d 32, and its
corresponding adverse presumption. Driscoll, 893 So.2d at 47 explains:
An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need 12 only put on enough evidence to prove the case. Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App. 2 Cir. 6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La. 12/07/01), 803 So.2d 973. Explaining that adverse presumption, the Fourth Circuit recently noted “ ‘[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.’ ” Taylor v. Entergy Corp., 2001-0805[, p. 14] (La.App. 4 Cir. 4/17/02), 816 So.2d 933[, 941] (quoting Davis v. Myers, 427 So.2d 648, 649 (La.App. 5 Cir. 1983)). This adverse presumption is referred to as the “uncalled witness” rule and applies “when ‘a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence’ and fails to call such witnesses.” Id. (quoting 19 FRANK L. MARAIST, LOUISIANA CIVIL LAW TREATISE: EVIDENCE AND PROOF, § 4.3 (1999)). Despite the advent of modern, liberal discovery rules, this rule remains vital, especially in cases, such as this one, in which a witness with peculiar knowledge of the material facts is not called to testify at trial.
The application of this adverse presumption is “fully within the discretion of
the trial court.” Glasscock v. Bd. of Supervisors of La. State Univ., 49,855, p. 4
(La.App. 2 Cir. 8/19/15), 174 So.3d 757, 761, writ denied, 15-1628 (La. 10/30/15),
179 So.3d 618. There is no abuse of discretion in the trial court’s refusal to apply
the adverse presumption “where the witness’s testimony would be cumulative;
where the party seeking to avail itself of the negative inference has the burden of
proof on the issue that would be addressed by the witness’s testimony; and where
the witness is equally available to the opposing party.” Moretco, Inc. v. Plaquemines
Par. Council, 12-430, p. 18 (La.App. 4 Cir. 3/6/13), 112 So.3d 287, 296-297
(footnotes omitted), writ denied, 13-724 (La. 5/17/13), 118 So.3d 376.
Dr. Trawick argues that the Broussards fail to show what additional material
facts Dr. Trawick had regarding the discovery of potential malpractice claims
outside of what was plainly documented in the medical records.
13 Dr. Munshi asserts that the Broussards did not request the application of the
adverse presumption at the trial court. “As a general rule, appellate courts will not
consider issues raised for the first time in this court, which are not pleaded in the
court below and which the district [court] has not addressed.” Geiger v. State ex rel.
Dep’t of Health & Hosp., 01-2206, p. 11 (La. 4/12/02), 815 So.2d 80, 86. However,
this court may address an issue not considered by the trial court when “the interest
of justice requires otherwise.” Uniform Rules — Courts of Appeal, Rule 1–3.
“Ordinarily, the burden of proof is on the party pleading prescription[.]”
Adams v. Ochsner Clinic of Baton Rouge, 99-2502, p. 3 (La.App. 1 Cir. 11/3/00),
771 So.2d 258, 260, writ denied, 00-3159 (La. 1/12/01), 781 So.2d 558. “However,
when, as in the instant case, the plaintiff is met with an exception of prescription
filed in the district court during the pending medical panel review under the Medical
Malpractice Act, the plaintiff is required to prove the defense of contra non valentem
as allowed under La.R.S. 9:5628.” Verbois v. Taylor, 15-240, p. 6 (La.App. 1 Cir.
12/17/15), 185 So.3d 59, 62, writ denied, 16-37 (La. 3/4/16), 188 So.3d 1062.
[I]n response to the filing of a peremptory exception of prescription during the medical review panel process, where the request for a medical review panel was filed more than a year after the date of the alleged malpractice, [the claimant] had the burden of submitting evidence of her late discovery of facts that put her on notice of possible malpractice.
In re Skipper, 17-724, p. 6 (La.App. 1 Cir. 12/21/17) (unreported decision).
The Broussards assert that the “uncalled witness” rule is a critical issue not
addressed by the trial court where Mrs. Broussard testified live at the hearing but
neither Dr. Munshi nor Dr. Trawick testified on their own behalf. The Broussards
are attempting to invoke the “uncalled witness” rule because they are in need of the
adverse presumption to establish that Dr. Munshi and Dr. Trawick concealed
14 critically important medical information from them so that contra non valentem will
apply. This theory is not supported by either the jurisprudence or the evidence
submitted at the hearing on the exceptions of prescription. As previously discussed,
we found no error in the trial court’s findings that there were multiple occasions
prior to September of 2020, where Mrs. Broussard displayed constructive notice of
her claim. Because the Broussards bear the burden of proof on the defense of contra
non valentem, we find that they may not avail themselves of the negative inference
provided by the “uncalled witness” rule and its corresponding adverse presumption
in this case. See Moretco, 112 So.3d 287. Therefore, we find no abuse of discretion
in the trial court’s failure to apply the uncalled witness rule.
V.
CONCLUSION
For the foregoing reasons, we affirm the granting of the exceptions of
prescription filed on behalf of Dr. Ilyas Munshi and Dr. Eric Powell Trawick and
the dismissal, with prejudice, of the claims brought by Dana Broussard and Byron
Broussard. All costs of this appeal are assessed against the Broussards.
AFFIRMED.