Wang v. Broussard

708 So. 2d 487, 1998 WL 79051
CourtLouisiana Court of Appeal
DecidedFebruary 20, 1998
Docket96 CA 2719
StatusPublished
Cited by6 cases

This text of 708 So. 2d 487 (Wang v. Broussard) 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
Wang v. Broussard, 708 So. 2d 487, 1998 WL 79051 (La. Ct. App. 1998).

Opinion

708 So.2d 487 (1998)

Louis WANG and Ana Wang, Tutor of his Minor Daughter, Jennifer Christiana Wang
v.
Thad BROUSSARD, M.D. and Stewart T. Ramey, M.D.

No. 96 CA 2719.

Court of Appeal of Louisiana, First Circuit.

February 20, 1998.
Rehearing Denied April 2, 1998.

*488 Robert W. Stratton, Baton Rouge, for Plaintiff-Appellant Louis Wang, Ana Wang, and Louis Wang, Tutor of his Minor Daughter, Jennifer Christiana Wang.

Myron Walker, Baton Rouge, for Defendant-Appellee Stewart T. Ramey, M.D.

Frank A. Fertitta, Baton Rouge, for Defendant-Appellee Thad Broussard, M.D.

Mary H. Thompson, Baton Rouge, for Defendant-Appellee Woman's Hospital Foundation.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

LOTTINGER, Chief Judge.

This is an action for medical malpractice wherein plaintiffs allege that defendant physicians failed to timely diagnose that plaintiffs' infant daughter suffered from bilateral *489 congenital hip dislocations. The trial court granted defendants' peremptory exception raising the objection of prescription, and plaintiffs now appeal.

FACTS

Jennifer Christiana Wang was delivered by caesarian section on February 23, 1991. Upon examining Jennifer on that date, her pediatrician, Dr. Stewart Ramey, noted what he believed were bilateral congenital hip dislocations, and referred the child to an orthopedist, Dr. Thad Broussard, for further evaluation and treatment. Following a telephone consultation with Dr. Broussard regarding the child's condition, Dr. Ramey ordered that she be placed in triple diapers until she could be seen by Dr. Broussard.

Dr. Broussard saw the child for the first time in his office on March 1, 1991. Following a physical and x-ray examination on that date, Dr. Broussard concluded that she had a subluxation rather than a dislocation of the hip, and prescribed that plaintiffs continue to use triple diapers for a period of two weeks. Dr. Broussard examined the child again during a follow-up visit on March 11, 1991, and reduced her from three diapers to two. The child was scheduled to return to Dr. Broussard for a second follow-up visit on March 25, 1991; however, this appointment was later canceled by the child's mother, plaintiff Ana Wang, who never returned to see Dr. Broussard. Plaintiffs did, however, continue to seek regular pediatric care from Dr. Ramey.

Dr. Ramey saw the child on March 27, 1991, for her one month pediatric checkup, but was evidently unaware that the child had not been released from the care of Dr. Broussard. On that occasion, he noted that the child's hips were "okay." On subsequent visits to Dr. Ramey, there is no record that plaintiffs expressed concern about the child's hips.

Dr. Ramey's transcribed office notes reflect that the following year, on April 23, 1992, the child was seen by Dr. Ramey with complaints of fever, coughing, and congestion. There was also a complaint of her left leg appearing to drag. At that time, the child was fourteen months old and just beginning to walk. Dr. Ramey initially suggested that the child return to Dr. Broussard for evaluation; however, when Mrs. Wang indicated she did not wish to return to Dr. Broussard, Dr. Ramey referred her to another orthopedist, Dr. Ronald Sylvest. He provided her with Dr. Sylvest's name and telephone number on a piece of paper. When the child returned to Dr. Ramey for a recheck ten days later on May 4, 1992, Dr. Ramey reiterated his recommendation that Mrs. Wang make an appointment with Dr. Sylvest, and further suggested that she advise him after she made the appointment, so that he could call Dr. Sylvest and preface her visit.

During a subsequent unrelated visit on either May 20, 1992, or June 1, 1992, Dr. Ramey again recommended that Mrs. Wang bring the child to Dr. Sylvest for evaluation and treatment. Inexplicably, the Wangs never took the child to Dr. Sylvest. Months later, during an office visit on September 3, 1992, Dr. Ramey referred the Wangs to a third orthopedist, Dr. Brent Bankston. Once again, the parents declined to follow Dr. Ramey's advice.

Mrs. Wang ultimately sought treatment for the child from Dr. Roberto Bruno, an orthopedist, while on a visit to her native country, Brazil, in October of 1992. Mrs. Wang claims to have been astounded when Dr. Bruno advised her that her daughter had dislocated hips and would require surgery. Upon learning the news of his daughter's condition, Mr. Wang telephoned Dr. Ramey, who later referred the child to Dr. James Bennett, a pediatric orthopedist at Children's Hospital in New Orleans, following her return to the United States on December 5, 1992.

Plaintiffs initially filed their complaint with the Louisiana Patient's Compensation Fund on September 2, 1993, approximately eighteen months after her last visit to Dr. Broussard. The complaint alleged acts of malpractice and substandard treatment by Dr. Thad Broussard and Dr. Stewart Ramey following the child's delivery at Woman's Hospital on February 23, 1991. A medical review panel was assembled to review the plaintiffs' allegations, and on January 25, 1995, the panel *490 concluded that there was not a breach of the standard of care on the part of either Dr. Ramey or Dr. Broussard.

On March 14, 1995, plaintiffs filed the instant lawsuit against Drs. Broussard and Ramey, seeking damages for alleged malpractice. Thereafter, on April 26, 1995, plaintiffs filed an amending and supplemental petition naming Woman's Hospital Foundation, d/b/a Woman's Hospital, as an additional defendant. On May 19, 1995, the Hospital filed a dilatory exception raising the objection of prematurity asserting that plaintiffs were required, under the provisions of the Louisiana Malpractice Act, La. R.S. 40:1299.41, et seq., to present their malpractice claims against the hospital to a medical review panel prior to filing suit. On June 26, 1995, the trial court maintained the exception, and plaintiffs' claims against Woman's Hospital were dismissed[1].

Both Dr. Broussard and Dr. Ramey filed exceptions raising the objection of prescription asserting that the suit was prescribed in accordance with La. R.S. 9:5628, because it was filed more than one year after the date upon which plaintiffs were put on notice of the alleged malpractice. The exceptions raising the objection of prescription were heard and granted by the district court on January 22, 1996.[2] It is from this judgment that the plaintiffs appeal and to which Drs. Ramey and Broussard respond.

ISSUES ON APPEAL

On appeal, the plaintiffs present the following issues for our consideration:

1.) Did the trial court err in granting defendants' exception based upon prescription where plaintiffs did not have knowledge of their potential malpractice claim until they were advised by a Brazilian physician on October 28, 1992?
2.) Did the defendants fail in their burden to establish that plaintiffs' claim had prescribed?
3.) Was prescription suspended by the continuing professional relationship between the patient and the physician?

DISCUSSION

Generally, a medical malpractice action must be filed within one year of the alleged act, omission or neglect or within one year from the date of discovery of the alleged act, omission or neglect, but in all cases, no later than three years from the date of the alleged act, omission or neglect. La. R.S. 9:5628(A); Chandler v. Highland Clinic, 28,204, p. 3 (La.App. 2nd Cir. 4/3/96); 671 So.2d 1271, 1273.

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708 So. 2d 487, 1998 WL 79051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wang-v-broussard-lactapp-1998.