218 So. 3d 743
La. Ct. App.2017Background
- Plaintiff Kelli Wilkerson underwent three bunionectomies by Dr. Denardo Dunham between 2008 and 2010 and continued to have right-foot pain thereafter.
- After unsuccessful treatment attempts with other podiatrists, Wilkerson saw Dr. Darren Vigee in July 2011, who x-rayed her foot and told her excessive bone had been removed during the bunionectomies.
- Wilkerson returned to Dr. Dunham in June 2014 after further x-rays; Dunham described the pain as a known complication but referred her to an orthopedist who performed corrective surgery.
- Wilkerson filed a PCF medical malpractice complaint against Vigee on October 23, 2014, then amended to substitute Dunham (Feb–Mar 2015), and filed suit in civil court against Dunham on April 7, 2015; she dismissed Vigee from the PCF complaint in May 2015.
- Dunham filed a peremptory exception of prescription; the trial court sustained it and dismissed Wilkerson’s claims with prejudice. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether continuing treatment exception (contra non valentum) suspended prescription | Wilkerson: ongoing doctor–patient relationship/continuing treatment with Dunham through June 2014 and Dunham’s reassurances tolled prescription | Dunham: treatment relationship ended in Nov. 2010; Wilkerson formed a new treating relationship with Vigee; no conduct by Dunham prevented suit | Court: No. Relationship with Dunham ended in 2010; continuing-treatment exception does not apply |
| Whether discovery rule (contra non valentum) delayed start of prescription | Wilkerson: did not discover malpractice by Dunham until June 2014 | Dunham: Wilkerson had constructive/actual knowledge by July 29, 2011 after Vigee’s x-rays showing excessive bone removal | Court: No. Wilkerson knew or reasonably should have known by July 2011; claim filed in Oct 2014 was untimely |
Key Cases Cited
- Campo v. Correa, 828 So.2d 502 (La. 2002) (defines discovery rule for medical malpractice prescription)
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (explains continuing-treatment exception under contra non valentum)
- In re Noe, 958 So.2d 617 (La. 2007) (applies continuing-treatment exception where treatment and referrals continued and reassurances delayed suit)
- In re Med. Review Panel for Claim of Moses, 788 So.2d 1173 (La. 2001) (discusses interplay of one-year discovery rule and three-year repose under La. R.S. 9:5628)
- Fontenot v. ABC Ins. Co., 674 So.2d 960 (La. 1996) (states standard for when prescription is evident on the face of the pleadings)