211 So. 3d 651
La. Ct. App.2017Background
- Plaintiff Kimberly Jimerson, a registered nurse, treated by Dr. Jake Majors for gynecological issues since 2005; had laparoscopic diagnosis of endometriosis and prior sterilization in 2007.
- On August 19, 2008 Majors performed a hysterectomy (with bilateral salpingo-oophorectomy); plaintiff developed postoperative complications (including bladder issues) and continued treatment through October 2009.
- Plaintiff alleges the hysterectomy was negligent and that she did not validly consent because she signed consent while medicated and/or the surgery was performed without first trying conservative measures.
- Plaintiff filed an MRP request on September 2, 2010; she missed multiple deadlines and delayed providing materials for years; MRP later unanimously found Majors met the standard of care and obtained informed consent.
- Majors asserted a peremptory exception of prescription in state court; after hearings the trial court sustained the exception and dismissed the claim with prejudice; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prescription was suspended under the discovery rule | Jimerson discovered malpractice on Nov. 10, 2009 when Dr. Pineda allegedly told her the hysterectomy should not have been done | Prescription began earlier because plaintiff had actual/constructive knowledge from post-op complications and multiple specialist visits; plaintiff failed to prove later discovery | Court held discovery rule not shown; petition on its face prescribed and plaintiff did not prove lack of constructive knowledge |
| Whether continuous-treatment doctrine tolled prescription | Continued treatment by Majors through Oct. 2009 and plaintiff’s reliance on him delayed filing | Majors’ referrals and advised conservative treatments did not prevent plaintiff from seeking second opinions; he did not conceal or obstruct | Court held continuous-treatment doctrine did not apply; Majors did not abuse the physician-patient relationship to prevent suit |
| Whether the hearsay statement (Dr. Pineda) could defeat prescription | Pineda told plaintiff in office that hysterectomy was negligent, which is discovery | Majors contended the statement is unsubstantiated hearsay and unsupported by records or depositions | Court found the alleged Pineda statement was uncorroborated hearsay and properly discounted it |
| Whether court should have referred the exception to the merits | Plaintiff argued the fact-intensive nature required merits trial | Majors argued court may resolve prescription in advance and had discretion; plaintiff had opportunities for discovery but delayed MRP process | Court exercised discretion to decide prescription after considering evidence and did not err in not referring exception to the merits |
Key Cases Cited
- Campo v. Correa, 828 So.2d 502 (La. 2002) (explains discovery rule and commencement of prescription in medical malpractice)
- Carter v. Haygood, 892 So.2d 1261 (La. 2004) (addresses continuous-treatment doctrine and burden when prescription is pleaded)
- Guitreau v. Kucharchuk, 763 So.2d 575 (La. 2000) (holding prescriptive period begins when plaintiff can state a cause of action; constructive knowledge standard)
- Borel v. Young, 989 So.2d 42 (La. 2008) (confirms one- and three-year prescriptive limits in La. R.S. 9:5628 are peremptive)
- Taylor v. Giddens, 618 So.2d 834 (La. 1993) (discusses equitable rationale for tolling prescription under continuing treatment/contra non valentem principles)
Disposition: Judgment affirmed; plaintiff's malpractice claim dismissed with prejudice; appeal costs assigned to plaintiff.