In re Medical Review Panel Claim of Scott

921 So. 2d 1097, 2006 La. App. LEXIS 42, 2006 WL 118942
CourtLouisiana Court of Appeal
DecidedJanuary 17, 2006
DocketNo. 05-CA-401
StatusPublished

This text of 921 So. 2d 1097 (In re Medical Review Panel Claim of Scott) 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
In re Medical Review Panel Claim of Scott, 921 So. 2d 1097, 2006 La. App. LEXIS 42, 2006 WL 118942 (La. Ct. App. 2006).

Opinion

MARION F. EDWARDS, Judge.

LPlaintiff, Diana Scott, appeals the judgment of the trial court that granted an exception of prescription in favor of defendants in her action for medical malpractice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellant, Diana Scott (“Scott”), following a traumatic injury to her lumbar spine and two subsequent back surgeries in the 1990s, sought treatment from Dr. Deepak Awasthi, a neurosurgeon at Ken-ner Regional Medical Center (“KRMC”). Following an examination on October 2, 2000, Dr. Awasthi recommended to Scott that she undergo an L5-S1 interbody fusion and pedicle fixation. Scott informed Dr. Awasthi on November 27, 2000 that she wished to proceed with the surgical intervention. On that same date, Scott was presented |4with and signed two separate consent forms. One of the consent forms, entitled “PATIENT CONSENT TO TREATMENT — DISCLOSURE OF RISKS,” disclosed several potential outcomes of the surgery, including: “pain, numbness or paralysis, or clumsiness.” Scott underwent surgery on December 1, 2000, at which time pedicle screws and plates were placed on the right side and left sides at L5-S1.

On the day following the surgery, Scott complained of left leg pain, numbness, and left leg paralysis. A CT scan of the lumbar spine on that date showed that “The left L5 and SI screws appear to violate the spinal canal.” A second surgery was scheduled for December 2, 2000. On that date, Scott signed a consent form for the procedure, which indicated that her condition was “left-sided radiculopathy secondary to pedicle screw impingement.” In his operative report of December 2, 2000, Dr. Awasthi wrote that the pedicle screws on the left side were encroaching into the spinal canal and that he explained to Scott why removal of the screws was necessary.

In the days immediately following the surgery, Scott complained of weakness and other symptoms in the left foot and leg, leading her to “express grief’ over the outcome of her surgery. Prior to her discharge from Kenner Regional, Scott consulted with a pain specialist, Dr. Robert W. Irwin, with whom she complained of sharp shooting and throbbing pain on her left side. Scott was discharged from the hospital on December 8, 2000 with advice to receive home health care.

On December 18, 2000, following an appointment with Scott, Dr. Awasthi noted that a violation of Scott’s pedicles led to a “left-sided nerve root injury.” Scott was still experiencing weakness on her left side and relied on a walker for assistance. On January 29, 2001, Scott again visited Dr. Awasthi, and his notes |sfrom that date reflect that Scott continued to “have the neurological deficits on the left side related to the L5 and SI nerve roots, more so the L5 nerve root.”

Dr. Irwin wrote, following a visit with Scott on February 12, 2001, that a screw [1099]*1099had become lodged in Scott’s sacral spinal canal, that it had been removed, and that Scott continued to have residual weakness of the lower extremity. In a “Spine Assessment Form” filled out by Scott on that same date, Scott indicated that she suffered constant leg and back pain following the surgery.

After a visit with Scott on July 16, 2001, Dr. Awasthi recounted in his notes the details of an MRI scan that he had ordered the previous week: “The MRI scan of the lumbosacral spine reveals postoperative changes on the left side with scarring around the nerve root as well as swelling of the nerve root at L5 on the left side.”

Scott continued to treat with both Dr. Awasthi and Dr. Irwin for a period through May 6, 2002, during which time she sustained her complaints of pain and discomfort. On her last visit to Dr. Awas-thi on May. 6, 2002, Scott complained of left-sided leg cramping and muscle spasms on the left side of the back and leg. On that same date, Dr. Awasthi informed Scott that the conditions from her surgery would likely be permanent. Scott contends that, prior to this date, she had been told that the nerves would regenerate.

Scott indicated that she wished to pursue having the right pedicle screw removed following a gallbladder surgery later in the month. In giving her medical history at Thibodeaux General Hospital prior to the surgery in May 2002, Scott indicated that she had sustained “permanent nerve damage to the left lower extremity with left foot drop.” Scott never returned to treatment with Dr. Awasthi following her gallbladder surgery on May 14, 2002.

lfiOn October 22, 2003, Scott filed a medical malpractice complaint against defendants, contending that she- was never informed that the pedicle screws had violated the spinal canal either before the second surgery or for the following two years and three months that she continued treatment with defendants.

Kenner Regional Medical Center thereafter filed an Exception of Prescription on September 30, 2004; the State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College, on behalf of Dr. Deepak Awasthi, also filed an Exception of Prescription on October 6, 2004. Following a hearing on January 14, 2005, the trial court granted defendants’ exceptions of prescription. Scott timely filed the present appeal.

LAW AND ANALYSIS

In her sole assignment of error, Scott contends that the trial court erred in holding that her medical malpractice claim had prescribed because the defendants did not demonstrate that she knew or should have known that she suffered an injury as a result of the surgery.

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial.1 LSA-C.C.P. art. 929 provides when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. LSA-C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception.2 When evidence is introduced and evaluated at the [1100]*1100trial of a peremptory exception, an appellate court must review the entire |7record to determine whether the trial court manifestly erred with its factual conclusions.3

LSA-R.S. 9:5628 provides, 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.

In Richardson v. Avondale Shipyards,4 this Court held:

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