Thibodeaux v. Donnell

994 So. 2d 612, 2008 WL 4190563
CourtLouisiana Court of Appeal
DecidedSeptember 12, 2008
Docket2007 CA 1845
StatusPublished
Cited by6 cases

This text of 994 So. 2d 612 (Thibodeaux v. Donnell) 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
Thibodeaux v. Donnell, 994 So. 2d 612, 2008 WL 4190563 (La. Ct. App. 2008).

Opinion

994 So.2d 612 (2008)

Kimberly and Todd THIBODEAUX, Individually and on Behalf of their Minor Child, Gabrielle Thibodeaux
v.
James DONNELL, M.D.

No. 2007 CA 1845.

Court of Appeal of Louisiana, First Circuit.

September 12, 2008.

*613 Ralph E. Kraft, F. Douglas Gatz, Jr. Bryan E. Lege, Kraft Gatz Lane Benjamin LLC, Lafayette, LA, and Paul M. Sterbcow, New Orleans, LA, for Plaintiffs-Appellants Kimberly and Todd Thibodeaux, individually and on behalf of their minor child, Gabrielle Thibodeaux.

Carl T. Conrad, Blue Williams, L.L.P., Mandeville, LA, and Norval J. Rhodes, Houma, LA, for Defendant-Appellee James Donnell, M.D.

Before CARTER, C.J., PARRO, KUHN, DOWNING, and WELCH, JJ.

PARRO, J.

Plaintiffs appeal a trial court judgment sustaining the defendant's peremptory exception raising the objection of prescription and dismissing their medical malpractice claims. We reverse and remand.

*614 FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 2006, Kimberly and Todd Thibodeaux, individually and on behalf of their minor child, Gabrielle Thibodeaux, filed suit for medical malpractice against James Donnell, M.D., a physician licensed to practice and practicing obstetrics and gynecology. According to the petition, Dr. Donnell was Mrs. Thibodeaux's treating ob/gyn when she became pregnant in 2003. On October 31, 2003, Mrs. Thibodeaux was diagnosed with complete placenta previa, and shortly thereafter, she was admitted to Terrebonne General Hospital for vaginal bleeding secondary to the placenta previa. After her release from the hospital, Dr. Donnell referred her to a high-risk pregnancy specialist for these complications. Mrs. Thibodeaux was re-admitted to the hospital with renewed vaginal bleeding and contractions on November 19, 2003. Later that day, Dr. Donnell performed a low transverse Caesarean section, delivering a 2 pound, 9.7 ounce baby girl.[1]

The petition further alleges that in addition to the Caesarean section, Dr. Donnell performed a total abdominal hysterectomy, during which he crushed the trigone area of Mrs. Thibodeaux's bladder, caused an eight-inch laceration in the bladder itself, and improperly placed an angle stitch through the bladder. Although Dr. Donnell repaired the laceration and removed the angle stitch during the hysterectomy, Mrs. Thibodeaux allegedly suffered "immediate post-operative" complications as a result of Dr. Donnell's actions, and a urologist was required to perform additional surgery on November 20, 2003.

In the petition, Mrs. Thibodeaux alleges that as a result of Dr. Donnell's negligence, she was required to undergo unnecessary and avoidable surgeries. She further alleges that she endured physical and mental pain and suffering, as well as various urinary and bladder difficulties. Her husband and her daughter also joined in the suit, seeking damages for loss of consortium and for loss of nurture and guidance, respectively.

Dr. Donnell answered the petition and filed a peremptory exception raising the objection of prescription. After a hearing, the trial court sustained the exception and dismissed the plaintiffs' suit. Plaintiffs have appealed.

PRESCRIPTION

Louisiana Revised Statute 9:5628 governs the prescriptive and peremptive periods applicable to medical malpractice actions. Subsection A of the statute provides, in pertinent part:

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

Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the plaintiffs' petition shows on its face that the prescriptive period has run, and the plaintiffs are contending there is a suspension or interruption of prescription, the burden is on the plaintiffs to prove *615 suspension or interruption.[2]St. Romain v. Luker, 00-1366 (La.App. 1st Cir.11/9/01), 804 So.2d 85, 88, writ denied, 02-0336 (La.4/19/02), 813 So.2d 1083.

The date of the alleged malpractice in this matter is November 20, 2003; however, the plaintiffs did not file their petition until October 26, 2006. Therefore, on the face of the petition, the cause of action appears to be prescribed. Nonetheless, no action against a covered health care provider may be commenced in any court before the claimants' proposed claim has been presented to a medical review panel. LSA-R.S. 40:1299.47(B)(1)(a)(i). Although the petition does not mention that a medical review panel was requested, Dr. Donnell acknowledges in his exception that the request for a medical review panel was filed on November 4, 2004,[3] which was within the one-year prescriptive period established by LSA-R.S. 9:5628(A).[4]

Louisiana Revised Statute 40:1299.47(A)(2)(a) provides, in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board[5] that the health care provider is not covered by this Part. (Footnote added.)

Thus, it is clear that the prescriptive period was suspended by the filing of the request for the medical review panel. The burden of proof then shifted back to Dr. Donnell to prove that the period of suspension had ceased and that the claim had prescribed by the time the plaintiffs filed their petition.

When LSA-R.S. 40:1299.47(A)(2)(a) is interpreted in connection with subsections (J) and (L) of the statute, it is clear that suspension of the running of prescription continues until ninety days following notification by certified mail to the claimant or his attorney of the issuance of the panel's opinion.[6] However, these provisions do *616 not address the situation before this court, because no opinion was ever issued by the panel in this matter.

Louisiana Revised Statute 40:1299.47(B)(1)(b) provides, in pertinent part:

[I]f an opinion is not rendered by the panel within twelve months after the date of notification of the selection of the attorney chairman by the executive director to the selected attorney and all other parties pursuant to Paragraph (1) of Subsection C of this Section, suit may be instituted against a health care provider covered by this Part. However, either party may petition a court of competent jurisdiction for an order extending the twelve month period provided in this Subsection for good cause shown. After the twelve month period provided for in this Subsection or any court-ordered extension thereof, the medical review panel established to review the claimant's complaint shall be dissolved without the necessity of obtaining a court order of dissolution.

Louisiana Revised Statute 40:1299.47(B)(3) further provides:

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Related

Thibodeaux v. Donnell
189 So. 3d 469 (Louisiana Court of Appeal, 2016)
Thibodeaux v. Braud & Gallagher, L.L.C.
109 So. 3d 501 (Louisiana Court of Appeal, 2013)
Thibodeaux v. Donnell
9 So. 3d 120 (Supreme Court of Louisiana, 2009)

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Bluebook (online)
994 So. 2d 612, 2008 WL 4190563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-donnell-lactapp-2008.