Katrina Sylvan and Anthony Johnson v. BRFHH Monroe, LLC d/b/a University Health Shreveport, LLC; University Health Shreveport; Shilpadevi S. Patil; Matthew Pedram Bral; Rachael Wolfson; Ahmed B. Zaidi; Johnathan Johnson, RN; Andrew Price, RN; and Meagan Sparks, RN

• Court: Louisiana Court of Appeal
• Decided: April 13, 2022
• Docket: 54,202-CA
• Status: Published

Opinion

Judgment rendered April 13, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,202-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** KATRINA SYLVAN and Plaintiffs-Appellants ANTHONY JOHNSON

versus

BRFHH MONROE, LLC d/b/a Defendants-Appellees UNIVERSITY HEALTH, SHREVEPORT, LLC; UNIVERSITY HEALTH SHREVEPORT; SHILPADEVI S. PATIL; MATTHEW PEDRAM BRAL; RACHAEL WOLFSON; AHMED B. ZAIDI; JOHNATHAN JOHNSON, RN; ANDREW PRICE, RN; AND MEAGAN SPARKS, RN

***** Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 610,051

Honorable Craig Owen Marcotte, Judge

***** THE LAW OFFICES OF Counsel for Appellants, KATRINA R. JACKSON Katrina Sylvan and By: Katrina R. Jackson Anthony Johnson

PETTIETTE, ARMAND, Counsel for Appellees, DUNKELMAN, WOODLEY, BRFHH Shreveport, BYRD & CROMWELL, L.L.C.LLC; LLC; University Health By: Lawrence W. Pettiette, Jr. Shreveport, LLC; Rendi B. Wiggins University Health Shreveport; Jonathan Johnson, RN; Andrew Price, RN; and Meagan Sparks, RN

***** Before MOORE, COX, and STEPHENS, JJ. COX, J.

This appeal arises from the First Judicial District Court, Caddo Parish,

Louisiana. Katrina Sylvan (“Ms. Sylvan”) and Anthony Johnson

(collectively “Appellants”) appeal a judgment that sustained an exception of

prescription and dismissed, with prejudice, their claim of medical

malpractice arising from the alleged negligent care and treatment received

by their mother, Eula Thompson (the “Decedent”), at University Health

Shreveport. For the reasons expressed, we affirm.

FACTS

On August 8, 2018, Appellants, through the succession of the

Decedent, filed a medical malpractice complaint for the alleged negligent

care rendered to the Decedent from July 5, 2017, until her death on July 18,

2017. In their petition, Appellants stated that on July 5, 2017, the Decedent

was admitted to University Health for a neurosurgical procedure to remove a

mass from her posterior upper medullae. Appellants stated that after the

operation the Decedent “could speak and was aware.” On July 14, 2017, a

nurse informed the Appellants that the Decedent needed a tracheotomy

(“trach”) and that the tube would be implanted the next day.

On July 16, 2017, Appellants noticed that the Decedent’s health

declined. The following morning, a nurse informed the Appellants that the

Decedent’s trach needed to be replaced that day because it was “too large

and [allowed] too much air to [get] in.” Appellants noted that although the

new trach was in the Decedent’s room that morning, the tube had not been

replaced that evening as the nurse advised. On July 18, 2017, Appellants

were informed that the Decedent passed away early that morning.

Appellants alleged that after the mass was removed, the neurological department breached the standard of care regarding the placement,

assessment, and monitoring of the Decedent’s trach, resulting in hypoxia and

ultimately the Decedent’s death.

On July 20, 2018, Appellants filed a petition for damages against

BRFHH Shreveport, LLC D/B/A University Health Shreveport, LLC;

University Health Shreveport; Shilpadevi S. Patil; Matthew Pedram Bral;

Rachael Wolfson; Ahmed B. Zaidi; Jonathan Johnson, RN; Andrew Price,

RN; and Meagan Sparks, RN1 (collectively “Appellees”), for the alleged

negligent care of the Decedent. On September 19, 2018, Appellees filed a

peremptory exception of prescription, asserting that the Appellants’ claim

prescribed because it was filed more than one year after the Decedent’s

death. In opposing the motion, Appellants argued that under the doctrine of

contra non valentem agere nulla currit praescriptio, their claim was timely

because they did not become aware of the negligence until two to three

months after the Decedent passed. A hearing on the exception was held on

September 8, 2020.

Ms. Sylvan testified that the Decedent was admitted to University

Health for 14 days following the removal of a tumor. Sometime after the

neurological department removed the mass, the Decedent had a trach

implanted. Ms. Sylvan testified that on July 17, 2017, she noticed a new

trach in the Decedent’s room and that a nurse informed her that the

Decedent’s original trach needed to be replaced that day because it was too

large. Ms. Sylvan testified that when she visited the Decedent that evening,

1 For clarification, we note that BRFHH Monroe, LLC, is listed in the case caption; however, the actual Appellee entity in this matter is BRFHH Shreveport, LLC. Further, the first name of Appellee Jonathan Johnson, RN, is misspelled in the case caption. 2 her only concern was that the Decedent’s trach had not been replaced. She

stated that a nurse only informed her that the trach was not replaced because

the Decedent’s health had deteriorated. The Decedent passed away the

following morning.

Ms. Sylvan stated that two to three months after the Decedent passed

away, a nurse informed the Decedent’s siblings that the Decedent died

because the wrong sized trach was implanted. She testified that this was the

first time she realized that the hospital did something wrong because she was

never informed that the Decedent’s health deteriorated because the wrong

sized trach was implanted. Ms. Sylvan stated that she relied on the doctors’

and nurses’ statements that they had done everything they could for the

Decedent.

At the close of testimony, the district court, in granting the exception,

stated, “. . . this matter has prescribed or would have prescribed on July 18,

2018. And it is my understanding [that] this matter was filed in August of

2018, more than one year after the negligent act occurred. And therefore,

the [c]ourt finds that this matter has prescribed and sustains the [e]xception

of [p]rescription.” This appeal followed.2

DISCUSSION

In their assignments of error, Appellants argue that the trial court

erred in granting the Appellees’ exception of prescription. Appellants

contend that under the doctrine of contra non valentem, their claim was

2 After the district court granted the exception of prescription, Appellants filed a notice to seek supervisory review with this Court, which found that the notice was timely as a motion for devolutive appeal, granted the writ, and remanded the matter for perfection as an appeal.

3 timely because it was filed within one year from their discovery of any

negligent conduct attributable to the Decedent’s death.

Standard of Review

Generally, the standard of review of a judgment regarding an

exception of prescription will depend on whether evidence was introduced

during the hearing of the exception. Mitchell v. Baton Rouge Orthopedic

Clinic, L.L.C., 21-00061 (La. 10/10/21), ---So. 3d---, 2021 WL 5860855;

Wells Fargo Fin. La, Inc. v. Galloway, 17-0413 (La. App. 4 Cir. 11/15/17),

231 So. 3d 793. If no evidence is presented to support or controvert the

exception, the manifest error standard of review does not apply, and the

appellate court’s role is to determine whether the trial court’s ruling was

legally correct. Cook v. Rigby, 19-1475 (La. App. 1 Cir. 11/25/20), 316 So.

3d 482.

Conversely, when evidence is introduced during the hearing on an

exception of prescription, the trial court’s findings of fact are reviewed

under the manifest error standard of review. Mitchell, supra; Carter v.

Haygood, 04-0646 (La. 1/19/05), 892 So. 2d 1261; In re Med. Review Panel

Proceedings for Claim of Ferguson v. Howell, 53,139 (La. App. 2 Cir.

11/20/19), 284 So. 3d 1231, writ granted on other grounds, 19-02033 (La.

6/22/21), 318 So. 3d 34. However, when there is no dispute regarding

material facts and only the determination of a legal issue, then appellate

courts apply a de novo standard of review and no deference is afforded to

the trial court’s legal conclusions. Mitchell, supra.

In the present case, testimonial evidence was introduced into the

record at the hearing on the exception of prescription. Therefore, a manifest

error standard of review is applied to this case. 4 Prescription

The prescriptive period for medical malpractice claims is governed by

La. R.S. 9:5628(A) which provides, in pertinent part, as follows:

No action for damages for injury or death against any physician. . . 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 discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of 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.

This statute requires that such claims be brought within one year of the

alleged act, omission, or neglect, or within one year from the date of

discovery. La. R.S. 9:5628(A). Additionally, even as to claims filed within

one year of the discovery of the alleged malpractice, all such claims must be

filed, at the latest, within three years from the date of the alleged act,

omission, or neglect. Id. Ordinarily, the party pleading prescription bears

the burden of proving that the claim has prescribed; however, when

prescription is evident on the face of the pleadings, the burden shifts to the

plaintiff to show that the action has not prescribed. Mitchell, supra;

Jimerson v. Majors, 51,097 (La. App. 2 Cir. 1/11/17), 211 So. 3d 651;

Cooksey v. Heard, McElroy & Vestal, L.L.P. 44,761 (La. App. 2 Cir.

9/23/09), 21 So. 3d 1011.

Appellants argue that, with respect to medical malpractice actions,

prescription begins to run from the date the injured party knew or should

have known of the negligence. In this case, the Appellants assert that they

were not aware of any negligent conduct until two to three months after the

Decedent passed away when a nurse informed the Decedent’s siblings that

the wrong sized trach was implanted. In contrast, Appellees argue that since

5 the claim was filed on August 8, 2018, and the date of the Decedent’s death

was July 18, 2017, the Appellant’s complaint prescribed because it was filed

more than one year after the Appellants had constructive notice that the

Decedent might have been a victim of medical negligence; therefore, the

burden to show that the claim was not prescribed shifted to the Appellants.

We agree.

According to the record, and as correctly noted by the trial court, any

knowledge regarding the alleged negligence was known or should have been

known on July 18, 2017. Ms. Sylvan was informed on July 17, 2017, that

the wrong sized trach was initially implanted and that it would have to be

replaced with a smaller trach, which was never done. Appellants testified

that the day after the Decedent’s initial procedure, she “could speak and was

aware,” and recognized that the Decedent’s health declined after the trach

was implanted.

As such, we cannot say that the trial court was manifestly erroneous in

its finding that the Appellants had sufficient knowledge, prior to the running

of prescription, that should have prompted further inquiry as to the potential

malpractice. Accordingly, this assignment of error lacks merit.

Appellants alternatively argue that under the doctrine of contra non

valentem, the peremptive period of La. R.S. 9:5628(A) does not apply to the

facts in this case. La. R.S. 9:5628(A) specifies that medical malpractice

claims must be brought within one year of the alleged act, omission, or

neglect, or within one year from the date of the discovery. Even as to claims

filed within one year of the discovery of the alleged malpractice, all such

claims must be filed, at the latest, within three years from the date of the

alleged act, omission, or neglect. Id. 6 Prescriptive statutes are strictly construed in favor of maintaining a

plaintiff’s cause of action. In re Med. Review Panel of Mason Heath, 54,020

(La. App. 2 Cir. 8/11/21), 326 So. 3d 347, writ granted, 21-01367 (La.

12/721), 328 So. 3d 409, citing, Correro v. Ferrer, 16-0861 (La. 10/28/16),

216 So. 3d 794. To “soften the harshness of prescriptive statutes,” the

jurisprudentially created exception to prescription, contra non valentem, was

adopted. Carter, supra. This exception generally provides that

“prescription does not run against a person who could not bring his suit.” Id.

Our courts recognize four categories of contra non valentem that prevent the

running of prescription:

(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.

Plaquemines Parish Comm. Council v. Delta Dev. Co., 502 So. 2d 1034 (La.

1987); Carter, supra.

Appellants argue that the third and fourth categories apply to this case.

Specifically, Appellants argue that the Decedent’s death did not put them on

notice that the Appellees were negligent primarily because statements from

doctors, nurses, and staff of the Appellee facility delayed the Appellants

from having any reasonable knowledge regarding this action. Appellants

contend that they initially believed the Decedent’s death stemmed from the

removal of the tumor, in part because a nurse informed Ms. Sylvan that the

Decedent’s failing health prevented the trach from being replaced.

7 Moreover, Appellants argue that because a doctor told Ms. Sylvan that he

and the other staff did everything they could for the Decedent, the

Appellants were made to believe that the Appellees were not responsible for

the Decedent’s death. We disagree.

After a thorough review of the record, we find that neither of the two

asserted grounds for the application of contra non valentem is applicable in

this case. First, the Louisiana Supreme Court has held that the third category

of contra non valentem is implicated in situations in which “an innocent

plaintiff has been lulled into a course of inaction in the enforcement of his

right by reason of some concealment or fraudulent conduct on the part of the

defendant, or because of his failure to perform some legal duty whereby

plaintiff has been kept in ignorance of his rights.” Carter, supra.

Here, there is no indication that any employee of the Appellee facility

took any action that effectually prevented the Appellants from discovering

the alleged malpractice of placing the wrong sized trach in the Decedent.

Although Ms. Sylvan testified that a nurse informed her that the second

smaller trach could not be replaced because the Decedent’s health declined

and that a doctor told her that he did everything he could for the Decedent,

this does not bar the Appellants from discovering that an act of negligence

occurred because of the wrong sized trach. There is no evidence in the

record that any member of the Appellee facility assured the Appellants that

the Decedent’s health would recover once the new trach was implanted or

even that the cause of the Decedent’s decline in health stemmed from the

removal of the tumor.

Our jurisprudence reflects that the law of prescription does not require

that the patient be informed by a medical practitioner of possible malpractice 8 before the prescriptive period begins to run. Jimerson, supra; Dixon v.

Louisiana State Univ. Med. Ctr., 33,036 (La. App. 2d Cir. 01/26/00), 750

So. 2d 408, writ denied, 00-0627 (La. 04/20/00), 760 So. 2d 350. The

prescriptive period for a medical malpractice cause of action arises upon the

occurrence of the injury when the damages are immediately apparent.

Mitchell, supra.

A nurse directly informed the Appellants that the wrong sized trach

was implanted into the Decedent and that it would have to be replaced that

same day. The nurse further informed the Appellants that the trach could

not be replaced because of the Decedent’s deteriorating health. The nurse’s

failure to specifically state that the Decedent’s decline in health, and

ultimate death, was caused because the wrong sized trach was implanted did

not prevent the Appellants from availing themselves of their cause of action.

Accordingly, we cannot say that the Appellees’ failure to mention their fault

regarding the implantation of the trach rises to the level of fraud,

misrepresentation, concealment, or ill practice.

Finally, prescription is suspended under the fourth category of contra

non valentem when “some cause of action is not known or reasonably

knowable by the plaintiff” and the plaintiff’s ignorance of his cause of action

is not attributable to his own willfulness or neglect because he is deemed to

know what he could have learned by reasonable diligence. Edwards v.

Alexander, 42,000 (La. App. 2 Cir. 6/6/07), 960 So. 2d 336, writ denied, 07-

1317 (La. 9/28/07), 964 So. 2d 371. Under the discovery rule, prescription

begins to run 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.

Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502; Jimerson, supra. 9 A prescriptive period begins 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 he

has constructive knowledge of such facts. Id.

Constructive knowledge is “whatever notice is enough to excite

attention and put the injured person on guard and call for inquiry.” Id.;

Heath, supra. The ultimate issue in determining constructive knowledge 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.” Id. Although the record in this case does not present

or reference information regarding the Appellants’ ages, inexperience, lack

of education, or degree of reliance on healthcare providers, it does reflect

that there was a reasonable basis to excite the Appellants’ curiosity that

employees of the Appellee facility were negligent.

The record demonstrates that the Appellants were aware that on July

16, 2017, the Decedent’s health began to decline after her trach was

implanted. The following day, a nurse informed the Appellants that the

wrong sized trach was implanted and would have to be replaced; however,

the nurse stated later that the trach could not be replaced because of a

decline in the Decedent’s health. Because the Appellants were informed that

the wrong sized trach was implanted, and thereafter, the Decedent’s health

declined and she eventually passed away, the Appellants had sufficient

information to incite curiosity by July 18, 2018.

Therefore, because the Appellants’ complaint was filed in August

2018, more than one year after the Appellants knew or should have known

of the medical malpractice claim, the matter was untimely filed.

10 CONCLUSION

For the reasons expressed, the judgment is affirmed. Costs of this

appeal are cast against the Appellants.

AFFIRMED.