165 So. 3d 233
La. Ct. App.2015Background
- Decedent Delvin Hume entered Ferncrest nursing home for a short respite in April 2009 and was removed by his wife on May 3, 2009 after a fall, a medication administration error, and complaints of unhappiness.
- After removal he was hospitalized, placed on home hospice with a diagnosis (initially described as stomach cancer/failure to thrive), and died May 24, 2009; death certificate lists acute renal failure and heart disease.
- The Humes later learned from medical records (while pursuing a separate slip-and-fall case) that Ferncrest documented lack of urinary output and severe dehydration on or before May 3, 2009.
- The Humes requested a medical review panel (MRP) May 19, 2010 and filed suit October 24, 2012 alleging Ferncrest’s failure to timely notify physicians and other nursing-home negligence caused dehydration/renal failure.
- Ferncrest moved to dismiss under Louisiana’s one-year medical-malpractice prescriptive rule, arguing prescription began May 3, 2009; the trial court granted the exception.
- The court of appeal reversed: it concluded contra non valentum tolled prescription until the Humes reasonably discovered the alleged malpractice (May 2010) and Ferncrest failed to prove the Humes had earlier knowledge or had consulted counsel within one year of May 3, 2009.
Issues
| Issue | Plaintiff's Argument (Humes) | Defendant's Argument (Ferncrest) | Held |
|---|---|---|---|
| Whether contra non valentum tolls prescription for malpractice claims here | Tolling applies because Humes lacked knowledge of actionable malpractice until counsel reviewed records in May 2010 | Prescription began May 3, 2009 when Mrs. Hume removed Mr. Hume and had facts that should have excited inquiry | Held: Contra non valentum applies; tolling until reasonable discovery in May 2010 |
| When did the one-year prescriptive period commence (date of discovery)? | Discovery occurred May 17–21, 2010 when attorneys obtained Ferncrest records showing dehydration/lack of urine | Discovery occurred May 3, 2009 (events and hospitalization put Humes on notice) | Held: Reasonable discovery was May 2010, not May 3, 2009; prescriptive period had not run when MRP request filed |
| Whether mere awareness of an adverse condition (hospitalization/hospice) started prescription | Humes: awareness of illness or hospice diagnosis (stomach cancer/failure to thrive) did not reasonably put them on notice that Ferncrest caused the fatal dehydration/renal failure | Ferncrest: the hospital admission, diagnosis entries, and medication error sufficed to excite inquiry | Held: Mere awareness of illness/hospice was insufficient; it was reasonable not to connect hospice diagnosis to Ferncrest care |
| Whether Humes consulted counsel about alleged malpractice within one year of May 3, 2009 (which would affect accrual) | Humes: they did not consult re: Ferncrest until counsel received records May 2010 | Ferncrest: Humes had contact with attorneys within a year and thus had constructive knowledge | Held: Record lacks evidence Humes sought legal advice about Ferncrest within one year of May 3, 2009; Ferncrest did not meet its burden |
Key Cases Cited
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (describing contra non valentum as a suspension doctrine for prescription)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (prescription commences on actual or constructive knowledge; petition not facially prescribed if filed within one year of discovery)
- Guitreau v. Kucharchuk, 763 So.2d 575 (La. 2000) (one-year malpractice period does not start at earliest indication of possible wrong; plaintiff must be able to state wrongful act and resulting damage)
- Geiger v. State ex rel. Dept. of Health & Hosp., 815 So.2d 80 (La. 2002) (panel request filed after a year cannot suspend prescription retroactively)
- Corsey v. State, Through Dep’t of Corr., 375 So.2d 1319 (La. 1979) (contra non valentum applies where cause of action is not known or reasonably knowable)
- Ledet v. Miller, 459 So.2d 202 (La. Ct. App.) (constructive knowledge defined as notice sufficient to excite attention and call for inquiry)
- Denoux v. Vessel Mgmt. Servs., Inc., 983 So.2d 84 (La. 2008) (when petition clearly prescribed on its face, burden shifts to plaintiff to prove otherwise)
- Brumfield v. McElwee, 976 So.2d 234 (La. Ct. App.) (appellate standard for reviewing prescription exceptions)