In re Med. Review Panel of Gerard Lindquist

274 So.3d 750

IN RE: MEDICAL REVIEW PANEL OF GERARD LINDQUIST

NO. 18-CA-444

Court of Appeal of Louisiana, Fifth Circuit.

May 23, 2019

COUNSEL FOR PLAINTIFF/APPELLANT, GERARD LINDQUIST, Frank A. Silvestri, New Orleans, Damien M. Savoie

COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION AND DR. JOSEPH M. ZAVATSKY, Don S. McKinney, Alexandra G. Roselli, New Orleans

Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

CHAISSON, J.

In this medical malpractice case arising from alleged fraudulent concealment of a metal foreign object left in a patient during surgery, Gerard Lindquist appeals a May 8, 2018 judgment of the trial court sustaining an exception of prescription filed by Ochsner Clinic Foundation and Dr. Joseph M. Zavatsky. For the following reasons, we reverse the decision of the trial court.

FACTS & PROCEDURAL HISTORY

The facts of the case, as alleged in Mr. Lindquist's request for a medical review panel filed on September 14, 2017, with the Division of Administration are as follows:

On August 22, 2013, Mr. Lindquist underwent spinal surgery performed by Dr. Zavatsky, an employee of Ochsner.¹ Mr. Lindquist was sent home that same day for recovery. The next day he went to the emergency room at Ochsner after experiencing an inability to stand as well as pain and weakness in his legs. Diagnostic studies (x-rays) from August 24, 2013, showed a metal artifact in the operative site in Mr. Lindquist's back. Mr. Lindquist was not informed of the presence of the artifact at that time by anyone at Ochsner or Dr. Zavatsky. Mr. Lindquist was discharged from the hospital, and sent home. The next day, August 25, 2013, he was readmitted to the hospital after continuing to experience pain and weakness. An MRI was performed which also evidenced the metal artifact in his spine at the site of the surgery, but Mr. Lindquist was again not informed of it by anyone. He was discharged on August 26, 2013.

Mr. Lindquist met with Dr. Zavatsky on November 15, 2013, and again on February 17, 2014, at which times he reported continuing symptoms of pain and weakness. He was not informed during either of these visits of the metal artifact, though the presence of the metal artifact is mentioned by Dr. Zavatsky in his November 15, 2013 progress notes following results of an x-ray he had ordered of Mr. Lindquist. Mr. Lindquist continued in Dr. Zavatsky's care through February 14, 2014, for pain and disability. At some point unknown to Mr. Lindquist, Dr. Zavatsky left Ochsner.

In the following years, Mr. Lindquist continued to experience pain and disability in his spine. On May 25, 2017, an MRI was taken at Ochsner and the metal artifact was again shown in Mr. Lindquist's back at the operative site. At this time, Mr. Lindquist was first told about the metal artifact by a doctor at Ochsner. Mr. Lindquist filed his claim for medical malpractice against Ochsner and Dr. Zavatsky with the Division of Administration a few months later on September 14, 2017.

On January 22, 2018, Ochsner and Dr. Zavatsky filed a peremptory exception of peremption pursuant to La. R.S. 9:5628 and La. R.S. 40:1231.8. At the hearing on the exception, the parties and the court agreed to construe the exception as a peremptory exception of prescription. In their memorandum in support of the exception and at the hearing on the exception, defendants argued that Mr. Lindquist's claims filed four years after his surgery fell outside the three year prescriptive period set forth for medical malpractice actions in La. R.S. 9:5628 and were therefore prescribed.² In opposition, Mr. Lindquist argued that defendants' conduct in failing to inform him of the metal artifact in his back constitutes fraudulent concealment and therefore, under the doctrine of contra non valentem , prescription on his claim did not begin to run until he was informed of its presence on May 25, 2017. In response, defendants argued that, even if the court were to consider application of contra non valentem , Mr. Lindquist was not prevented from bringing his malpractice suit within three years of the surgery because the x-rays and diagnostic images showing the metal object in his back were in his medical records which were always available to him.

The trial court rendered judgment sustaining defendants' exception of prescription and dismissed Mr. Lindquist's case with prejudice. A subsequent motion for new trial filed by Mr. Lindquist was denied. Mr. Lindquist appeals the judgment sustaining defendants' exception of prescription.

DISCUSSION

This case presents a res nova issue for this Court: whether a health care provider, who has seen x-rays and MRIs showing a metal object that he left in a patient's back during surgery, and who fails to disclose such to the patient, has engaged in conduct that rises to the level of concealment, misrepresentation, fraud, or ill practices sufficient to trigger the application of the third category of contra non valentem to interrupt the prescriptive period set forth in La. R.S. 9:5628.

In our discussion below, we will address first the applicable standard of review before examining the applicability of contra non valentem in medical malpractice actions, including whether the conduct alleged here, i.e. , fraud by silence, may suspend prescription under La. R.S. 9:5628.

Standard of Review

Ordinarily, the exceptor bears the burden of proof at trial of the peremptory exception, including prescription. Woods v. Cousins , 12-100 (La. App. 5 Cir. 10/16/12), 102 So.3d 977, 979, writ denied, 12-2452 (La. 1/11/13), 107 So.3d 617. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

At a hearing on a peremptory exception pleaded prior to trial, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. In the absence of evidence, a peremptory exception must be decided upon the facts alleged in the petition with all of the allegations accepted as true. Lomont v. Bennett , 14-2483 (La. 6/30/15), 172 So.3d 620, 627. Furthermore, when no evidence is introduced at the hearing on the exception, the reviewing court simply determines whether the trial court's finding was legally correct. Felix v. Safeway Ins. Co. , 15-0701 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 631. In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court's legal conclusions are not entitled to deference. Id.

The transcripts of this case show that no evidence was introduced by either party at the hearing on the exception prior to the trial court's ruling. Following the trial court's ruling, the court accepted, without defendants' objection, a copy of the request for a medical review panel and an affidavit from Mr. Lindquist supporting his allegations. At the hearing on the motion for new trial, the trial court sustained an objection raised by defendants to the introduction of additional evidence offered by Mr. Lindquist in support of his allegations. This evidence, which included an amended medical review panel request, a second affidavit of Mr. Lindquist, and excerpts from his medical records, was proffered by Mr. Lindquist and placed into the record by the trial court. Because the trial court did not consider any properly admitted evidence prior to its ruling, the manifest-error standard is not applicable, and we review the record de novo .

Prescription Under La. R.S. 9:5628

The prescriptive period for medical malpractice actions is set forth in La. R.S. 9:5628, which states in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in La. R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

The Louisiana Supreme Court in Borel v. Young , 07-0419 (La. 11/27/07), 989 So.2d 42, 74, on reh'g (7/1/08), examined this statutory language to determine whether the one and three-year time periods set forth are peremptive or prescriptive. In 1986, the Court had determined that these periods were prescriptive. Hebert v. Doctors Mem'l Hosp. , 486 So.2d 717 (La. 1986). In Hebert , the Court emphasized the importance of the distinction between peremptive and prescriptive periods:

[P]rescription prevents the enforcement of a right by legal action, [but] it does not terminate the natural obligation; peremption, however, extinguishes or destroys the right. ... [N]othing may interfere with the running of a peremptive period. It may not be interrupted or suspended...[a]nd exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. (Internal citations omitted.)

Id . at 723.

On rehearing in Borel , the Court specifically found that legislative amendments since 1986 had not changed the character of the statutory limitation periods, and affirmed its holding in Hebert that both the one-year and three-year periods set forth in La. R.S. 9:5628 are prescriptive, with the qualification that the ...