Theriot v. Physicians Med. Ctr.

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JENNIFER THERIOT v. PHYSICIANS MEDICAL CENTER, LLC AND XYZ INSURANCE COMPANY

Nos. 2021 CA1468, 2021 CW 1109

Court of Appeals of Louisiana, First Circuit

October 27, 2022

NOT DESIGNATED FOR PUBLICATION

On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court No 180987 Honorable Juan W. Pickett, Judge Presiding

Gerald Wasserman Leonard M. Berins Metairie, Louisiana Counsel for Plaintiff/Appellant, Jennifer Theriot

Thomas C. Cowan Lydia Habliston Toso Metairie, Louisiana Counsel for Defendant/ Appellee, Physicians Medical Center, LLC

John D. Schoonenberg Nicholas Gachassin, III Barry J. Boudreaux Lafayette, Louisiana Counsel for Defendant/Appellee Frederick Rau, M.D.

BEFORE: WHIPPLE, CJ., PENZATO, AND HESTER, JJ.

PENZATO, J.

In this medical malpractice case, plaintiff/appellant, Jennifer Theriot, appeals a judgment granting exceptions of prescription on the sole issue of informed consent and dismissing her claims against defendants/appellees, Dr Frederick Rau and Physicians Medical Center, LLC ("PMC"), on the issue of informed consent with prejudice. In an associated writ, PMC seeks review of a judgment denying its motion for summary judgment and denying in full its exception of prescription. For the reasons that follow, we reverse the judgment granting the exceptions of prescription and dismissing Ms. Theriot's informed consent claims, and deny PMC's application for supervisory writs.

FACTS AND PROCEDURAL HISTORY

In July of 2015, Ms. Theriot's primary care physician, Dr Richard Haydel, referred Ms. Theriot to PMC for a thyroid ultrasound. The thyroid ultrasound report indicated a solid nodule in the lower pole of the left lobe. On July 29, 2015, Dr. Haydel called Ms. Theriot and recommended a biopsy of the thyroid nodule based on the results of the ultrasound. Ms. Theriot selected Dr. Rau, a general surgeon, from her insurance company's provider directory, and Dr. Haydel sent a referral for a biopsy to Dr. Rau.

Following a July 30, 2015 consultation with Dr. Rau, surgery was scheduled for August 11, 2015. Ms. Theriot alleged that this consultation lasted approximately five minutes, and Dr. Rau did not discuss with her any surgery, possible complications, and/or alternatives, including medication. Ms. Theriot assumed that Dr. Rau was performing a biopsy, the procedure recommended by Dr. Haydel.

On August 11, 2015, Ms. Theriot was admitted to PMC. She was accompanied by her sister, Victoria Cantrelle. After she was brought to the surgery area and was already administered anesthesia, it was determined that Ms. Theriot had not signed the proper consent forms. A PMC employee asked Ms. Cantrelle, who had no authority to do so, to sign a consent form on behalf of Ms. Theriot, which she did. On August 11,2015, Dr. Rau performed a total thyroidectomy.

Post-operatively, Ms. Theriot experienced hoarseness. She complained of hoarseness at follow-up visits with Dr. Rau, and according to Ms. Theriot, Dr. Rau reassured her that he did everything correctly and that it would take time for her voice to recover. On August 5, 2016, Dr. Rau performed an esophagogastroscopy at PMC and examined Ms. Theriot's vocal cords. According to Dr. Rau's operative note, "[t]here did not appear to be any atrophy or paralysis of the cord at all on exam."

Following the esophagogastroscopy, Ms. Theriot saw Dr. Haydel because of her continuing shortness of breath and throat pain. Dr. Haydel referred Ms. Theriot to Dr. Chad Simon, ENT. On August 24, 2016, Dr. Simon performed a fiberoptic laryngoscopy, after which he advised Ms. Theriot that she had left-sided vocal cord paralysis and surgery would be required. Dr. Simon referred Ms. Theriot to Dr. Andrew McWhorter, ENT, who performed a rigid laryngoscopy and videostroboscopy. Dr. McWhorter diagnosed Ms. Theriot with the following: dysphagia, oropharyngeal phase; dysphonia; unilateral partial paralysis of vocal cords or larynx; dyspnea, unspecified type; and irritation of palate. Ms. Theriot underwent surgery on February 27, 2017, to repair her paralyzed vocal cords.

On July 19, 2017, Ms. Theriot requested the formation of a Medical Review Panel ("MRP"), naming Dr. Rau and PMC as defendants. By letter dated September 5, 2017, Ms. Theriot was advised that PMC was not a qualified health care provider. She then filed a petition for damages against PMC on September 22, 2017, alleging that PMC "was responsible for the acts of its employees and physicians that violated the standard of care by allowing Patient Consent Forms to be executed by a patient without providing any explanation by a medical professional of the risks of anesthesia and/or surgery."

On May 14, 2019, the MRP issued its opinion concerning Ms. Theriot's claims, finding there was a question of fact as to the pre-operative discussions between Dr. Rau and the patient regarding treatment options and the material risks of a biopsy or thyroidectomy; as there was no pre-operative signed written consent by Ms. Theriot, the adequacy of verbal consent was a question of fact bearing on liability.

On June 24, 2019, Ms. Theriot filed a supplemental and amending petition for damages, adding Dr. Rau as a defendant. In her petition, Ms. Theriot alleged that Dr. Rau was indebted "jointly, severally and in solidd' with PMC for his failure to comply with the appropriate standard of care. She alleged that Dr. Rau failed to conduct proper testing to confirm the need for a thyroidectomy. She further alleged that PMC's pre-op checklist documented the failure of Dr. Rau and PMC's personnel to abide by the pre-procedure verification process prior to surgery, and that Dr. Rau and PMC were placed on notice that the proper consent forms were never signed prior to Ms. Theriot's surgery. Ms. Theriot alleged that prior to the August 11, 2015 surgery, she never had any problems with hoarseness and/or breathing, but after the surgery she immediately experienced hoarseness and had difficulty breathing; she saw Dr. Rau for follow-up care and was reassured by him each time that he did everything correctly and that it would take some time for her voice to get better. Ms. Theriot further alleged that at no time prior to her appointment with Dr. Simon on August 4, 2016, had she ever been told that her vocal cords were paralyzed.

On April 19, 2021, PMC filed a motion for summary judgment, arguing that Ms. Theriot failed to produce an expert witness in support of her claims against PMC. PMC also filed an exception of prescription, solely arguing the legal theory of constructive knowledge. According to PMC, Ms. Theriot first became aware of a potential claim against Dr. Rau and PMC on August 12, 2015, when she noticed hoarseness when she tried to talk. PMC argued that as the initial complaint was not filed until July 19, 2017, her claims against PMC were prescribed as a matter of law. PMC attached an excerpt from Ms. Theriot's deposition to its memorandum in support of its exception of prescription, highlighting the following exchange:

Q: So when was the first time that you had some notion or idea that maybe Dr. Rau had done something wrong, you know, like what you alleged in the lawsuit?

A: The day after I got back home from the surgery when I tried to talk and it was like hoarseness.

On June 8, 2021, Dr. Rau filed his own exception of prescription, based on the same arguments advanced by PMC in its exception.

Ms. Theriot opposed the defendants' exceptions of prescription, contending that Dr. Rau reassured her during her follow-up care immediately after the surgery and subsequent visits that the hoarseness would get better. Ms. Theriot argued that the "continuing treatment rule"^[1] was applicable as she was lulled into a course of inaction by Dr. Rau's reassurances to her.

Prior to the hearing on the exceptions and the motion for summary judgment, Ms. Theriot filed a second supplemental and amending petition, which added a subsection to include in the body of the petition a portion of the MRP complaint, which was attached to the original petition. The added subsection outlined the series of events wherein Ms. Theriot claims she first learned of the medical malpractice committed by the defendants. Ms. Theriot alleged in this second supplemental and amending petition that the August 24, 2016 examination by Dr. Simon was the first notice to her that the medical treatment provided by Dr. Rau was below the standard of care and resulted in permanent harm to her. Ms. Theriot further included the dates she saw Dr. Rau for follow-up care and was reassured by him that he did everything correctly. According to her second supplemental and amending petition, she saw Dr. Rau for follow-up care and continuing care in October 2015, December 2015, March 2016, June 2016, and August 2016, and was reassured by him that he did everything correctly and that it would take some time for her voice to get better. A hearing was set for July 19, 2021, for the defendants to show cause if they opposed the filing of Ms. Theriot's second supplemental and amending petition. Prior to the date of the hearing, both Dr. Rau and PMC answered Ms. Theriot's second supplemental and amending petition in the form of a general denial.

On July 19, 2021, a hearing was held on the exceptions of prescription filed by Dr. Rau and PMC, and the motion for summary judgment filed by PMC. At the hearing, the defendants argued that separate prescriptive periods applied to Ms Theriot's informed consent claims and her claims of malpractice with regard to the surgery. The defendants focused on the consent issue, abandoned their claims of malpractice regarding the surgery, and argued that Ms. Theriot's claims as to lack of consent were clearly...