316 So.3d 1107
La. Ct. App.2020Background
- Aug. 11, 2015: Cheryl Mitchell underwent left total hip arthroplasty; Aug. 23, 2015: Dr. Easton performed a revision during which Mrs. Mitchell’s sciatic nerve was lacerated and immediately repaired by a consulted hand surgeon.
- Dr. Easton informed Mrs. Mitchell and her family the day after surgery that the sciatic nerve had been severed, it had been repaired, she had foot drop, and recovery could take time (he said it might be six months to a year, but did not guarantee recovery).
- Dr. Easton continued postoperative follow-up for the hip and monitored the nerve injury; he testified there was no further treatment available for the nerve beyond the repair and observation.
- Plaintiffs filed this medical-malpractice suit on May 26, 2017 (more than one year after the Aug. 23, 2015 injury but within one year of the last treatment visit, Nov. 15, 2016).
- Trial court granted defendants’ peremptory exception of prescription, finding no continuing treatment of the nerve injury and no conduct by Dr. Easton that prevented suit; the First Circuit affirmed.
- Judge Holdridge dissented, arguing the continuing-treatment (contra non valentem) rule tolled prescription until Dr. Easton’s monitoring ended on Nov. 15, 2016, so the May 26, 2017 filing was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the malpractice suit is prescribed under La. R.S. 9:5628 | Mitchell: suit timely because it was filed within one year of last continuous treatment (Nov. 15, 2016). | Easton: cause of action accrued Aug. 23, 2015; suit filed May 26, 2017 is beyond the one-year prescriptive period. | Majority: Exception sustained; action prescribed. |
| Whether the continuing-treatment (contra non valentem) rule tolled prescription | Mitchell: Dr. Easton’s ongoing monitoring and his statements to “wait a year” amounted to continued treatment and reassurances that prevented suit, tolling prescription. | Easton: Post-op visits were routine hip follow-ups, not continued treatment of the nerve; he did not mislead or conceal facts to prevent suit. | Majority: Rule inapplicable—no evidence doctor’s conduct prevented filing; dissent: rule should apply and toll until Nov. 15, 2016. |
Key Cases Cited
- Carter v. Haygood, 892 So. 2d 1261 (La. 2005) (establishes medical-malpractice prescriptive scheme and the continuing-treatment category of contra non valentem).
- In re Noe, 958 So. 2d 617 (La. 2007) (applies continuing-treatment rule where physician’s reassurances and ongoing care thwarted timely suit).
- Stobart v. State through Dept. of Transp. & Dev., 617 So. 2d 880 (La. 1993) (articulates manifest-error standard of review for factual findings).
- Clavier v. Our Lady of the Lake Hosp., Inc., 112 So. 3d 881 (La. App. 1 Cir. 2012) (discusses review of evidence introduced on prescription exceptions).