313 So.3d 1022
La. Ct. App.2021Background
- On April 19, 2016 Rhoda Timpton underwent right total knee arthroplasty performed by Dr. Richard Meyer; she experienced increasing post-op pain and continued treating with Dr. Meyer through February 2, 2018.
- On September 24, 2018 Timpton had a revision surgery by Dr. Lance Estrada, who concluded the original prosthesis was not securely attached to the tibia.
- Timpton filed a Request for a Medical Review Panel on September 23, 2019 (within one year of discovery but more than three years after the April 19, 2016 surgery); defendants moved in district court raising an exception of prescription.
- The trial court initially deferred ruling 45 days to let Timpton obtain medical records, but later denied her motion to compel Dr. Meyer’s deposition, sustained defendants’ prescription exception, and dismissed her claims with prejudice.
- On appeal the Fourth Circuit found the record insufficient to decide prescription because Timpton was precluded from discovery needed to invoke contra non valentem (continuing treatment/discovery rule), reversed the denial of the motion to compel, and remanded for discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Timpton's claim is prescribed under La. R.S. 9:5628 (one-year/three-year limits) | Prescription should be tolled or suspended under contra non valentem (continuing treatment and/or discovery rule); Timpton filed within one year of discovery | Request for panel filed more than three years after initial surgery; prescription bars the claim | Court: Record insufficient to resolve; trial court erred in dismissing without permitting discovery to test contra non valentem; reversed and remanded |
| Whether the trial court abused its discretion by denying Timpton’s motion to compel Dr. Meyer’s deposition | Deposition was necessary to show inconsistencies in records and to establish continuing treatment/conduct preventing suit | Deposition irrelevant to prescription; defendants refused dates | Court: Denial was error; deposition must be permitted; remand for discovery |
| Whether a PCF panel request requires the same factual specificity as a petition and whether plaintiff may develop facts by discovery before prescription ruling | A PCF request need not plead full facts; Timpton should be allowed discovery at panel stage to support contra non valentem | Plaintiff did not allege continuing negligence in the PCF submission; issue can be determined on the face of the request | Court: Recognized difference between panel request and petition; factual, fact-intensive issues (continuing treatment/discovery) cannot be decided without discovery; remanded |
Key Cases Cited
- In re Med. Review Panel for Claim of Moses, 788 So. 2d 1173 (La. 2001) (explains the tripartite structure of La. R.S. 9:5628 and the one-year/three-year framework)
- Carter v. Haygood, 892 So. 2d 1261 (La. 2004) (describes contra non valentem categories and the continuing-treatment rule)
- Campo v. Correa, 828 So. 2d 502 (La. 2002) (sets out reasonableness/constructive knowledge principles for the discovery rule)
- Borel v. Young, 989 So. 2d 42 (La. 2008) (confirms the one-year and three-year time limits are prescriptive)
- Perritt v. Dona, 849 So. 2d 56 (La. 2003) (distinguishes the informational requirements of a PCF request from a petition)
- In re Med. Review Panel of Hughes, 807 So. 2d 1074 (La. App. 4 Cir. 2002) (emphasizes the importance of obtaining the treating physician’s deposition during panel proceedings)