120 So. 3d 322
La. Ct. App.2013Background
- Robert S. Nichols underwent lumbar fusion (L2-3) by Dr. Ravish Patwardhan on Sept. 19, 2008; pain persisted post‑op.
- Patwardhan followed Nichols through Jan. 14, 2009 (last office visit) and referred him for steroid injections administered by another physician; Nichols received some injections through April 30, 2009 but did not complete the series.
- Nichols learned from a different neurosurgeon (Dr. Nanda) on Dec. 6, 2011 that the fusion may have been performed at the wrong level.
- Nichols filed a medical malpractice claim Jan. 20, 2012 (within one year of discovery but more than three years after Jan. 14, 2009).
- Defendants moved to dismiss on prescription grounds, arguing the last date of treatment (triggering the statute) was Jan. 14, 2009; plaintiff argued treatment continued (through referrals/injections) and that continuous representation/contra non valentem tolled prescription.
- Trial court sustained the exception; the court of appeal (majority) affirmed, concluding the three‑year prescriptive period was not tolled absent fraud/concealment and the last date of non‑perfunctory treatment was Jan. 14, 2009. Judge Lolley dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the doctor‑patient relationship (and treatment) continued after Jan. 14, 2009 | Nichols: treatment includes directions, referrals, orders and continued reliance; relationship continued through at least Apr/May 2009 | Patwardhan: he had no further contact after Jan. 14, 2009; referrals/administered care by others are not continuing personal treatment | Held: Last non‑perfunctory treatment was Jan. 14, 2009; subsequent referrals/injections were not attributable to Patwardhan for tolling purposes |
| Whether continuous representation/ongoing treatment tolled the one‑year discovery period | Nichols: continuous representation prevented timely suit; plaintiff reasonably relied on doctor’s representations | Patwardhan: post‑Jan. 14 acts were perfunctory and did not prevent plaintiff from suing | Held: Continuous representation did not apply because post‑Jan. 14 care was not more than perfunctory and did not attempt to rectify malpractice |
| Whether contra non valentem/discovery rule suspends the three‑year limit | Nichols: discovery rule and contra non valentem toll both one‑year and three‑year periods until plaintiff discovered malpractice | Patwardhan: Borel bars application of discovery rule to suspend the three‑year outer limit except for fraud/concealment | Held: Discovery rule cannot suspend the three‑year limit; absent fraud/concealment, three‑year limit applies |
| Whether the claim filed Jan. 20, 2012 was timely | Nichols: claim timely because prescriptive period began upon discovery (Dec. 6, 2011) or at latest when referrals/treatment ceased in 2009 | Patwardhan: claim untimely because three years from Jan. 14, 2009 expired before filing | Held: Claim prescribed; filing over three years after Jan. 14, 2009 and no concealment alleged to toll the three‑year limit |
Key Cases Cited
- Borel v. Young, 989 So.2d 42 (La. 2008) (discovery rule cannot suspend the statutory three‑year outer limit in R.S. 9:5628)
- In re Med. Review Panel of Moses, 788 So.2d 1173 (La. 2001) (continuous representation and fraud/concealment principles discussed for tolling prescription)
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (continuous treatment must be more than perfunctory and must have conduct that prevents suit)
- Wells v. Zadeck, 89 So.3d 1145 (La. 2012) (summary of contra non valentem categories and discovery rule)
- Taylor v. Giddens, 618 So.2d 834 (La. 1993) (special relationship of trust may hinder inclination to sue)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (prescription begins when it is reasonable to recognize condition may be related to treatment)