271 So. 3d 338
La. Ct. App.2019Background
- In December 2017 Spurlock filed a request for a medical review panel alleging Ochsner negligently failed to cleanse his chemotherapy port, causing clogging and blood clots; he stated discovery was December 26, 2016.
- Ochsner filed a Petition to Institute Discovery and then an exception of prescription arguing Spurlock’s claim was time-barred under La. R.S. 9:5628(A), asserting discovery actually occurred in December 2015 per medical records.
- Spurlock opposed, later submitting an affidavit saying he did not discover the malpractice until January 2017 after discussing symptoms with other cancer patients; he maintained his doctors had told him the port complication was "normal."
- The trial court held a hearing where only argument (no evidence) was presented and granted Ochsner’s exception, finding a reasonable person would have been on notice when the port was removed.
- The trial court then dismissed the medical review proceedings with prejudice; Spurlock appealed.
- The appellate court vacated and remanded, holding the trial court erred by deciding prescription without properly admitted evidence at the hearing and without the medical review request in the record for facial timeliness review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Spurlock’s request for a medical review panel is prescribed under La. R.S. 9:5628(A) | Spurlock: discovery occurred Jan 2017 when he learned from other patients; doctors told him the port malfunction was a known complication, so constructive knowledge did not arise earlier | Ochsner: record shows port removed in Dec 2015; Spurlock’s filing in Dec 2017 is late and his later claim of Jan 2017 is self-serving | Reversed: trial court erred to grant exception because no admissible evidence was introduced and the medical review request was not placed into the record for facial timeliness review; remanded for further proceedings |
| Whether documentary submissions attached to memoranda may be considered at the prescription hearing | Spurlock: relied on affidavit and assertions of delayed discovery | Ochsner: relied on medical records and original panel request attached to filings | Court: documents attached to memoranda and unadmitted materials cannot be considered as evidence at the hearing; they are not properly before the court |
| Whether constructive knowledge began when port malfunction was disclosed | Spurlock: disclosure that complication was "normal" prevented inquiry notice until later | Ochsner: disclosure of malfunction and removal was sufficient to excite attention and call for inquiry | Court: factual question unresolved because no admissible evidence was introduced; cannot sustain exception on that ground without evidence |
| Proper procedure for a prescription exception during medical review panel stage | Spurlock: timely request once discovery occurred in Jan 2017 | Ochsner: exception can be decided based on petition/request if facts are clear on face | Court: when petition/request not before court or facts unclear, evidence may be introduced; here lack of admitted evidence required vacatur and remand |
Key Cases Cited
- Campo v. Correa, 828 So.2d 502 (La. 2002) (establishes discovery rule/constructive knowledge standard in medical malpractice)
- Jimerson v. Majors, 211 So.3d 651 (La. App. 2 Cir. 2017) (applies prescriptive and discovery rules in malpractice cases)
- Bertoniere v. Jefferson Parish Hosp. Service Dist. No. 2, 972 So.2d 328 (La. App. 5 Cir. 2007) (discusses constructive knowledge standard)
- Hotard's Plumbing, Elec. Heating and Air, Inc. v. Monarch Homes, L.L.C., 188 So.3d 391 (La. App. 5 Cir. 2016) (evidence may be introduced on peremptory exception when grounds do not appear from petition)
- Cichirillo v. Avondale Industries, Inc., 917 So.2d 424 (La. 2005) (exception of prescription decided on petition when no evidence is offered)
- Sperandeo v. Osabas, 33 So.3d 269 (La. App. 5 Cir. 2010) (same principle on exceptions and petition allegations)
- Primus v. Touro Infirmary, 925 So.2d 609 (La. App. 4 Cir. 2006) (treatment of medical review panel request as petition for prescriptive review)
- In re Medical Review Panel Proceedings of Ouder, 991 So.2d 58 (La. App. 1 Cir. 2008) (same)
- Denoux v. Vessel Mgmt. Services, Inc., 983 So.2d 84 (La. 2008) (documents attached to memoranda are not evidence)
- Caro v. Bradford White Corp., 678 So.2d 615 (La. App. 5 Cir. 1996) (attachments to memoranda are not admissible evidence)