245 So. 3d 41
La. Ct. App.2018Background
- McCauley injured his right knee in a 2004 work accident and underwent multiple procedures by Dr. Malcolm Stubbs (2004 arthroscopy; 2010 arthroscopy and tibial tubercle osteotomy; 2013 total knee arthroplasty) and continued treating with Stubbs through January 2015.
- McCauley claimed ongoing knee pain and filed a medical malpractice suit on August 17, 2016, alleging malpractice in the June 11, 2010 osteotomy and the March 20, 2013 arthroplasty.
- Defendant Stubbs filed an exception of prescription arguing McCauley’s claims were time-barred under La. R.S. 9:5628.
- Trial court granted the exception, finding the suit was filed after the statute’s three-year outer limit and that continuing treatment did not suspend the three-year period absent concealment, fraud or ill practice.
- McCauley appealed; the appellate court reviewed under the manifest error standard because evidence was introduced in the trial court, and affirmed the dismissal for prescription.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCauley’s malpractice claims are time-barred under La. R.S. 9:5628 | Prescription was suspended by continuing treatment until doctor–patient relationship ended in Jan 2015; alternatively, discovery occurred April 29, 2016 | Claims are barred because suit was filed beyond the statutory three-year outer limit and beyond one year after relationship ended | Affirmed: claims prescribed — suit filed after three-year cutoff and one-year period after termination not shown to save claim |
| Whether continuing treatment (contra non valentem, third category) suspends the three-year prescriptive period | Continuing treatment with Stubbs suspended prescription because treatment continued through Jan 2015 | Continuing treatment only suspends three-year period if physician engaged in concealment, misrepresentation, fraud, or ill practice | Held: continuing treatment did not suspend three-year limit; plaintiff failed to prove concealment, fraud, or ill practice |
| Burden of proof once prescription appears on the face of the complaint | Plaintiff contended suspension applied and offered evidence of ongoing treatment and later discovery | Defendant argued complaint facially prescribed, shifting burden to plaintiff to prove suspension | Held: burden shifted to plaintiff; he failed to meet it |
| Applicability of discovery rule to extend three-year outer limit of La. R.S. 9:5628 | Plaintiff argued discovery rule (contra non valentem Category 4) could apply | Defendant relied on statute and precedent that three-year outer limit is not suspended by discovery rule absent exceptional concealment | Held: discovery rule cannot extend the statutory three-year outer limit; only concealment-level conduct by physician can suspend it |
Key Cases Cited
- Allain v. Tripple B Holding, LLC, 128 So.3d 1278 (La. App. 3 Cir.) (standard of review and burden-shifting on prescription exceptions)
- Whitnell v. Menville, 540 So.2d 304 (La. 1989) (articulation of four contra non valentem categories)
- Braud v. Cenac, 879 So.2d 896 (La. App. 3 Cir.) (three-year bar not suspended absent physician concealment; need proof of ill motive/intentional concealment)
- Carter v. Haygood, 892 So.2d 1261 (La.) (continuing treatment suspends prescription only when physician engages in fraud, concealment, misrepresentation, or ill practice)
- Jenkins v. Dyess, 821 So.2d 722 (La. App. 2 Cir.) (same principle: withholding/concealment must be intentional/fraudulent to avoid three-year bar)
- Claim of Aron, 695 So.2d 553 (La. App. 4 Cir.) (physician conduct must rise to concealment/misrepresentation/fraud or ill practices for third category to apply)
- Borel v. Young, 989 So.2d 42 (La.) (Category 4/discovery rule does not apply to statutory three-year limit in La. R.S. 9:5628)