274 So. 3d 750
La. Ct. App.2019Background
- Lindquist underwent L4–L5 spinal surgery on August 22, 2013 and experienced post‑op pain and weakness. Imaging (Aug. 24–25, 2013) showed a metal artifact at the operative site. He was not told about the artifact at that time.
- Lindquist continued follow‑up with Dr. Zavatsky through February 2014; his records contain provider notes referencing the artifact, but he alleges he was not informed. Dr. Zavatsky later left Ochsner.
- Lindquist first learned of the metal object on May 25, 2017 when an Ochsner physician told him; he filed a medical malpractice panel request on September 14, 2017.
- Defendants moved to dismiss as prescribed under La. R.S. 9:5628 (one‑year from discovery; absolute three‑year outer limit). The trial court sustained the exception, applying a continuous‑treatment analysis and dismissed the suit.
- On de novo review the appellate court held the trial court erred: it should have analyzed defendants’ conduct under the Fontenot fraud/concealment standard (third category of contra non valentem), not simply apply Carter’s continuous‑treatment rule.
- The court concluded that, accepting Lindquist’s allegations, defendants’ failure to disclose imaging showing the metal object amounted to fraudulent concealment that suspended prescription until Lindquist’s discovery on May 25, 2017, so his September 14, 2017 filing was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ silence about imaging showing a metal object constitutes fraudulent concealment sufficient to invoke the third category of contra non valentem (suspension of prescription). | Lindquist: doctors saw images, withheld that information; silence/failure to disclose is fraud that prevented discovery until May 25, 2017. | Defendants: mere silence without affirmative concealment is not fraud; records (images) were available so Lindquist had constructive knowledge. | Held: Allegations show a duty to disclose; silence here can be fraudulent concealment that prevented discovery, so prescription was suspended until May 25, 2017. |
| Whether the continuous‑treatment rule (Carter) governs when patient had facts indicative of malpractice but remained in treatment. | Lindquist: he lacked knowledge that a foreign object was left; Carter’s rule inapplicable. | Defendants/trial court: applied continuous‑treatment rule and found claim prescribed. | Held: Carter was misapplied—facts differ (patient unaware); court must apply Fontenot fraud standard rather than automatic Carter analysis. |
| Whether the availability of medical records/images gives constructive knowledge that starts prescription. | Lindquist: mere availability does not equal knowledge; laypersons would not reasonably detect a retained metal object from imaging without disclosure. | Defendants: images in records meant Lindquist could have discovered the object earlier; prescription ran. | Held: The mere availability of records does not start prescription; what the plaintiff actually knew (or was prevented from knowing) controls. |
| Standard of review and burden on exception. | Lindquist: no live evidence at hearing; pleadings accepted as true; appellate review de novo. | Defendants: argued prescription was evident from pleadings. | Held: No evidence considered before ruling, so de novo review applies; plaintiff’s allegations credited at this stage. |
Key Cases Cited
- Borel v. Young, 989 So.2d 42 (La. 2008) (medical malpractice time limits are prescriptive; limited discovery rule after three years)
- Hebert v. Doctors Mem'l Hosp., 486 So.2d 717 (La. 1986) (distinguishes peremption and prescription; contra non valentem may apply to prescriptive periods)
- Fontenot v. ABC Ins. Co., 674 So.2d 960 (La. 1996) (third category of contra non valentem requires physician conduct rising to concealment, misrepresentation, fraud, or ill practices)
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (continuous‑treatment rule: physician assurances during ongoing treatment can lull patient into inaction; applies where patient knew of facts indicating malpractice)
- In re Med. Review Panel for Claim of Moses, 788 So.2d 1173 (La. 2001) (foreign‑object cases: single negligent act leaving object is not an ongoing wrong that indefinitely suspends the three‑year prescriptive period)