Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C.

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CHERYL AND MICHAEL MITCHELL v. BATON ROUGE ORTHOPEDIC CLINIC, L.L.C. AND ROBERT W.EASTON, M.D.

No. 2021-C-0061

Supreme Court of Louisiana

December 10, 2021

On Writ of Certiorari to the First Circuit Court of Appeal Parish of East Baton Rouge

McCALLUM, JUSTICE.

Under certain circumstances, a physician's continuing professional relationship with a patient may give rise to the suspension of the prescriptive period for a medical malpractice action against the physician. Carter v Haygood, 2004-0646, p. 12 (La. 1/19/05), 892 So.2d 1261 1269. A professional relationship alone, however, is insufficient to suspend prescription and "no Louisiana case has held that prescription can be extended solely, or primarily, because of [a] continued relationship." Id., p. 13, 892 So.2d at 1269 (citation omitted). It is the continuing treatment of a patient within the context of that professional relationship that may trigger the suspension of the prescriptive period.

We granted certiorari to examine these principles and to determine whether the continuing treatment rule, a variant of the contra non valentem doctrine, suspended prescription under the facts of this medical malpractice case. The trial court, finding the continuing treatment rule to be inapplicable, granted the defendants' peremptory exception of prescription and dismissed plaintiffs' suit. The court of appeal affirmed.

We recognize the significance of the patient - physician relationship, and the desire for the continuity of that relationship. However, in this particular case, there is no question the plaintiffs, Cheryl and Michael Mitchell, knew of the alleged act of malpractice within a day of its occurrence. It is equally certain that suit was not filed against the treating physician, Dr. Robert Easton, within a year of the alleged malpractice. To the contrary, suit was filed a year and nine months after the act and approximately six months after Mrs. Mitchell's last appointment with Dr. Easton. The sole issue, therefore, is whether prescription was suspended during this time period pursuant to the continuing treatment rule.

We have reviewed the record and find that it supports the lower courts' determinations that Mrs. Mitchell did not receive any specific care from Dr. Easton designed to correct or otherwise treat the injury related to the alleged act of malpractice. Even had Mrs. Mitchell received continuing treatment of her injury, we do not find Dr. Easton's statements regarding her questionable prognosis to fall within the scope of the continuing treatment rule. Accordingly, under the specific circumstances of this case, we find that the continuing treatment exception of contra non valentem did not apply to suspend prescription in this case, and we affirm the judgments below.

FACTUAL AND PROCEDURAL BACKGROUND

On August 11, 2015, Dr. Robert Easton performed a left total hip arthroplasty (hip replacement surgery) on Mrs. Mitchell, who had dislocated her hip. Shortly thereafter, Mrs. Mitchell re-dislocated her hip and Dr. Easton performed a revision surgery on August 23, 2015. While Mrs. Mitchell was in the recovery room, Dr. Easton observed that she had "foot drop," a condition he described as a patient's inability, following hip replacement surgery, to "pull [her] foot up towards [her] face." Foot drop has a number of causes and, to determine the precise cause in Mrs Mitchell's case, Dr. Easton performed a second surgery that same day. During the surgery, he discovered that Mrs. Mitchell's sciatic nerve had been lacerated.

Dr. Easton advised Mrs. Mitchell's family of the situation and consulted with Dr. Rasheed Ahmad, a hand surgeon who handles nerve repairs for Dr. Easton's medical group. Dr. Ahmad performed an end-to-end anastomosis to repair the nerve, which, as Dr. Easton testified, is the only course of treatment for an acute lacerated nerve.

The following day, August 24, 2015, Dr. Easton advised Mrs. Mitchell that she had foot drop as a result of the nerve injury and that Dr. Ahmad had repaired the nerve. Dr. Easton gave Mrs. Mitchell a prognosis for the foot drop; namely, that "it would take time, and there is a possibility it could recover, there is a possibility it might not recover, but most of the time at a year mark, whatever function you have, that is kind of what you are left with." After an end-to-end anastomosis, "you just have to wait and see." Dr. Easton further advised Mrs. Mitchell that "time would tell how much, if any, function and sensory perception she would get back."

Mrs. Mitchell was discharged from the hospital to an inpatient rehabilitation facility where she remained until September 10, 2015.^[1] She continued to be seen by Dr. Easton thereafter until November 15, 2016. Although Dr. Easton's chart note from that date reflects that Mrs. Mitchell was to "follow up … routinely for the hip in another several months," Mrs. Mitchell did not return to see Dr. Easton.

During the time that Dr. Easton saw Mrs. Mitchell following her several surgeries, he monitored the status of her hip replacement and checked to determine whether she had any improvement of the drop foot condition and the overall function of her left leg. Unfortunately, Mrs. Mitchell's foot drop never improved and she was left with sciatic nerve palsy.

On May 26, 2017, Mrs. Mitchell and her husband, Michael Mitchell, filed the instant medical malpractice lawsuit against Dr. Easton, his employer, the Baton Rouge Orthopaedic Clinic, L.L.C., and their insurers, Physician Assurance SPC as part of Y-Bridge Insurance Company and Baton Rouge Orthopaedic Clinic Segregated Portfolio Company as part of Y-Bridge Insurance SPC (collectively, "defendants").^[2] In response, the defendants filed a peremptory exception of prescription, which the trial court granted, dismissing the action against the defendants. The court of appeal affirmed, reasoning that, although Mrs. Mitchell continued to treat with Dr. Easton for more than a year after the alleged act of malpractice, that treatment was unrelated to the alleged act of malpractice. Mitchell v. Baton Rouge Orthopaedic Clinic, L.L.C., 19-0939 (La.App. 1 Cir. 12/17/20), 316 So.3d 1107 (Holdridge, J., dissenting). The appellate court further agreed with the trial court that the physician had engaged in no conduct, fraudulent or otherwise, that lured the plaintiffs into delaying the filing of this action.

LAW AND DISCUSSION

Standard of review

Plaintiffs maintain that the court of appeal improperly employed a manifest error standard of review. Urging this Court to review this matter de novo, the plaintiffs assert the trial court's judgment is "riddled with legal error" which was compounded by the court's "resolution of a factual issue regarding Dr Easton's conduct after the malpractice occurred." Conversely, the defendants submit the manifest error-clearly wrong standard as the appropriate standard of review.

Our jurisprudence reflects that the standard of review of a judgment pertaining to an exception of prescription turns on whether evidence is introduced at the hearing of the exception. Louisiana Code of Civil Procedure article 931 expressly allows "evidence [to] be introduced to support or controvert [a peremptory exception] pleaded, when the grounds thereof do not appear from the petition." If no evidence is submitted at the hearing, the exception "must be decided upon the facts alleged in the petition with all of the allegations accepted as true." Lomont v. Bennett, 14-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627. In that case, the reviewing court is simply assessing whether the trial court was legally correct in its finding. In re Med. Rev. Panel of Gerard Lindquist, 18-444, p. 4 (La.App. 5 Cir. 5/23/19), 274 So.3d 750, 754, writ denied, 2019-01034 (La. 10/1/19), 280 So.3d 165.

When evidence is introduced at the hearing, a court need not accept the allegations of the petition as true, and the lower court decisions are to be reviewed under a manifest error-clearly wrong standard of review. Lomont, p. 8, 172 So.3d at 627; See also, Carter, 04-0646, p. 9, 892 So.2d at 1267; Newton v. St. Tammany Fire Dist. No. 12, 20-0797 (La.App. 1 Cir. 2/19/21), 318 So.3d 206, 210. A caveat to this rule is that, even when evidence is introduced, when there is no dispute regarding material facts, the reviewing court is to apply a de novo standard of review, and give no deference to the trial court's legal conclusions. See Damond v. Marullo, 19-0675, p. 5 (La.App. 1 Cir. 6/22/20), 307 So.3d 234, 240, writ denied sub nom. Damond v. Marullo, 20-01243 (La. 3/23/21), 312 So.3d 1104; Wells Fargo Fin. Louisiana, Inc. v. Galloway, 17-0413, p. 8 (La.App. 4 Cir. 11/15/17), 231 So.3d 793, 800.

In the instant matter, evidence, both testimonial and documentary, was introduced into the record at the hearing on the exception of prescription. The record clearly demonstrates that the issues in this case are not purely legal. Factual determinations were required by the trial court with respect to whether Mrs. Mitchell received care from Dr. Easton following the alleged act of malpractice sufficient to fall within the continuing treatment rule, and whether Dr. Easton's conduct was of a nature for which the continuing treatment rule applies. Accordingly, we apply a manifest error-clearly wrong standard of review.

Prescription, contra non valentem and the continuing treatment doctrine

The prescriptive period for a claim of medical malpractice is governed by La. R.S. 9:5628 which provides, in pertinent part, as follows:

No action for damages for injury or death against any physician . . . duly licensed under the laws of this state . . . whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be

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