Jessica Burke and Seth McMillan, Individually and on Behalf of Oliver McMillan Versus Dr. Michael Cohen

JESSICA BURKE AND SETH MCMILLAN, NO. 19-CA-544
INDIVIDUALLY AND ON BEHALF OF
OLIVER MCMILLAN FIFTH CIRCUIT

VERSUS COURT OF APPEAL

DR. MICHAEL COHEN, ET AL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 787-141, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

May 28, 2020

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED
MEJ
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
JESSICA BURKE AND SETH MCMILLAN
Anthony L. Glorioso

COUNSEL FOR DEFENDANT/APPELLEE,
DR. MICHAEL COHEN AND OCHSNER
MEDICAL CENTER - KENNER, LLC
Nadia M. de la Houssaye

JOHNSON, J.

Appellants, Jessica Burke and Seth McMillan, seek review of the trial

court’s December 17, 2018 judgment sustaining the peremptory exception of

prescription of Appellees, Dr. Michael Cohen and Ochsner Medical Center –

Kenner, LLC, (collectively “Defendants”). The trial court dismissed Appellants’

complaint of medical malpractice with prejudice at their cost. We affirm the trial

court’s judgment for the reasons below.

FACTS AND PROCEDURAL HISTORY

On December 15, 2016, Appellants’ son, Oliver, was delivered via natural

birth by Dr. Cohen at Ochsner Medical Center in Kenner, LA. Appellants filed a

complaint against Defendants on March 15, 2018, alleging that Dr. Cohen was

negligent when he failed to deliver Oliver via Caesarian section (“C-section”) and

instead chose to use forceps during the delivery. In the complaint, Appellants

claimed, on or about February 21, 2018, they first learned that Oliver’s epilepsy

and brain volume loss may have been caused by the use of forceps during his birth

while meeting with personnel at Ochsner – Main Campus.

In response, Defendants filed a Petition to Establish Discovery Docket and a

Peremptory Exception of Prescription on August 29, 2018. Defendants countered

that Appellants’ complaint was prescribed on its face because the complaint was

filed one year and three months after the alleged malpractice occurred. Defendants

also remarked that Oliver had a well child exam on January 6, 2017 and no

abnormalities were noted. However, according to Defendants’ Memorandum in

Support of Peremptory Exception of Prescription, Appellants brought their son to

the emergency room due to decreased appetite and failure to latch to breastfeed.

Defendants stated that the hospital began to subject Oliver to a battery of tests,

including a brain MRI and head ultrasound to discover Oliver’s diagnosis.

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In their Memorandum in Opposition to the Peremptory Exception of

Prescription, filed on September 19, 2018, Appellants again declared that they did

not know and had no reason to believe that the delivery method Dr. Cohen

employed to deliver Oliver may have been responsible for their son’s injuries and

condition before February of 2018, and their claim had not prescribed because the

complaint was filed less than a month later and within the three-year period after

the tort occurred. Appellants also averred that the doctrine of contra non valentum

should be applied in this case to interrupt prescription. Attached to the opposition

memo was a letter from the Patient Compensation Fund (“PCF”), acknowledging

Appellants’ request for a medical review panel dated March 15, 2018.

The trial on the Peremptory Exception of Prescription was held on

November 7, 2018. Appellants objected to Defendants’ Reply Memorandum,

which was not timely filed, and asked for the trial to be continued if the court was

going to consider the pleading. The judge struck the reply memorandum from the

record but later allowed Defendants to enter into evidence certified copies of

medical records that were attached to the reply memorandum. After taking the

matter under advisement, the trial court issued a judgment on December 17, 2018

sustaining the peremptory exception of prescription in favor of Defendants and

dismissing Appellants’ complaint with prejudice and casting them with costs. In

its Reasons for Judgment, the trial court referred to Oliver McMillan’s medical

records, which included MRI results from January 9, 2017-- a year and two months

prior to the filing of the Complaint-- that stated there were “[s]ubdural hematomas

overlying the bilateral parieto-occipital regions and posterior aspect of the

cerebellum [that] may be related to birth trauma.” The trial court also determined

that Appellants did not plead with particularity the facts that supported their

assertion that they did not learn of Defendant’s possible medical malpractice until

February 21, 2018.

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Appellants then timely filed a Motion for New Trial on December 27, 2018.

Attached to the motion was a copy of an email counsel received from defense

counsel’s law firm showing that the service of their reply memorandum was

untimely and a copy of their First and Supplemental and Amended Complaint. At

the hearing on the motion on April 17, 2019, Appellants argued that they are not

medical professionals and the cause of Oliver’s epilepsy may not have been the

trauma signaled by the January 2017 MRI results. Appellants maintained that they

did not realize the forceps used at birth may have been the cause of Oliver’s

condition until they were told so by Ochsner staff in February 2018. Counsel for

Appellants reminded the court that Defendants’ Reply Memorandum was not

timely and suggested the proper course of action would be to deny the exception at

that time, allow the case to proceed to the Medical Review Panel, and take

depositions in order to discover when Appellants had actual or constructive

knowledge of a possible tort. Appellants did not enter any documents into

evidence at the hearing.

Defendants countered that, according to the previous hearing’s transcript,

Appellants’ only objection to the medical records was attached to the reply

memorandum, which Defendants ceded was untimely. According to defense

counsel, counsel for Appellants stated on the record that he already had Oliver’s

medical records and he did not contemporaneously object to the medical records

on the grounds that counsel was not in possession of the records before the hearing.

Defendants entered into evidence, without an objection, a transcript of the

November 7, 2018 trial and urged that Appellants did not present any evidence that

would provide a basis for granting their motion for new trial. The judge signed the

judgment and Reasons for Judgment on April 30, 2019, but the Notice of Judgment

and Reasons for Judgment was not mailed until May 21, 2019. The court denied

Appellants’ Motion for New Trial. In its Reasons for Judgment, the court noted

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that Oliver’s medical records indicated that Appellants should have had actual or

constructive knowledge of a possible tort. During Oliver’s thirty-three day stay in

the hospital, which began January 9, 2017, three MRIs were performed. The trial

judge explained that both the original and amended complaints were prescribed on

their face and the burden of proof shifted to Appellants to show their claim had not

prescribed. The court found that Appellants did not plead facts with particularity

in the Amended Complaint, which was not entered into evidence, or offer any

evidence to support their claim that they first learned that Defendants’ action or

inaction might be responsible for Oliver’s condition.

The trial court found that Appellants were also able to inform medical staff

in February 2018 of the child’s January 2017 diagnosis, a month after they brought

Oliver to the hospital because of what turned out to be a broken femur, over a year

later. Appellants also did not introduce and offer any evidence into the record

during either hearing other than counsel’s letter to the Division of the

Administrator, along with the Complaint and the PCF’s letter acknowledging

receipt of the same. Again, the trial court found in favor of Defendants, dismissing

Appellant’s claim with prejudice, at Appellants’ cost. Appellants then timely filed

a motion for appeal from the December 17, 2018 and April 30, 2019 judgments.

ISSUES

Appellants argue that the 24th Judicial District Court committed reversible

error in arriving at its December 17, 2018 judgment when it admitted evidence

initially attached as exhibits to Defendants’ reply memorandum, which was

submitted untimely and stricken from the record. Appellants also urge the trial

court erred when it found that the evidence presented, namely Oliver’s certified

medical records, was sufficient to prove that Appellants had notice of Defendants’

alleged malpractice in January 2017, ruled that their case had prescribed, and

dismissed their case with prejudice.

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LAW AND ANALYSIS

An exception of prescription is a peremptory exception, which a defendant

may raise at any time. La. C.C.P. art. 928(B). A health care provider, against

whom a medical malpractice claim has been made, may raise the peremptory

exception of prescription, pursuant to La. R.S. 9:5628, in a court of competent

jurisdiction and proper venue at any time without need for completion of the

review process by the medical review panel. La. R.S. 40:1231.8.

“On the trial of the peremptory exception pleaded at or prior to the trial of

the case, evidence may be introduced to support or controvert any of the objections

pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art.

931. The standard of review of a trial court's ruling on a peremptory exception of

prescription turns on whether evidence is introduced. Wells Fargo Financial

Louisiana, Inc. v. Galloway, 17-413 (La. App. 4 Cir. 11/15/17); 231 So.3d 793,

800. When no evidence is introduced, appellate courts review judgments

sustaining an exception of prescription de novo, accepting the facts alleged in the

petition as true. DeFelice v. Federated Nat'l Ins. Co., 18-374 (La. App. 5 Cir.

7/9/19); 279 So.3d 422, 426. However, when evidence is introduced at a trial on

an exception of prescription, the trial court's findings of fact are reviewed under the

manifest error standard. Id. “The standard of review of a trial court's finding of

facts supporting prescription is that the appellate court should not disturb the

finding of the trial court unless it is clearly wrong.” Felix v. Safeway Ins. Co., 15-

701 (La. App. 4 Cir. 12/16/15); 183 So.3d 627, 631 (citations omitted).

Ordinarily, the party urging prescription bears the burden of proving that the

cause of action has prescribed. Vicari v. Window World, Inc., 14-870 (La. App. 5

Cir. 5/28/15); 171 So.3d 425, 435, writ denied, 15-1269 (La. 9/25/15); 178 So.3d

570. However, when prescription is evident on the face of the pleadings, the

burden shifts to the plaintiff to show the action has not prescribed. Id. The

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opposing party must then come forward with evidence to show that prescription

has not run or has been interrupted or suspended. Hotard v. Banuchi, 00-1364 (La.

App. 5 Cir. 1/30/01); 784 So.2d 654, 655, writ denied, 01-0612 (La. 4/27/01); 791

So.2d 635. Prescriptive statutes are strictly construed against prescription and in

favor of the obligation sought to be enforced. DeFelice, supra, at 426.

We find that the trial court did not err when it admitted Oliver McMillian’s

medical records at the Peremptory Exception of Prescription into evidence, or

when it found that Appellants had not met their burden of proof to overcome

evidence that Appellants had knowledge of the alleged malpractice more than a

year before filing a PCF claim.

In this case, Defendants correctly state in their brief that even if their reply

memorandum was timely and not stricken from the record, the medical records and

other exhibits attached to the memo still had to be properly offered and introduced

into evidence at trial. When considering an exception of prescription, documents

simply attached to memoranda do not constitute evidence and cannot be considered

as evidence on appeal. Calamia v. Par. of Jefferson, 19-270 (La. App. 5 Cir.

12/30/19); 288 So.3d 278, 280; Bovie v. St. John the Baptist Par., Dep't of Streets

& Roads, 13-162 (La. App. 5 Cir. 9/4/13); 125 So.3d 1158, 1161. Louisiana Code

of Civil Procedure Article 931 allows evidence to be introduced to support or

controvert any of the objections pleaded on the trial of the peremptory exception

pleaded at or prior to the trial of the case. The trial court’s proper exclusion of

Defendants’ reply memorandum not submitted timely pursuant to Louisiana

District Courts Rule 9.9 (d) did not preclude Defendants from arguing or

presenting evidence at the trial on the Peremptory Exception of Prescription to

support their position.

The prescriptive period for medical malpractice actions is set forth in La.

R.S. 9:5628, which states in pertinent part:

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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.

Whether the petition is prescribed on its face can be determined when the plaintiff

alleges specific dates. Wells Fargo Fin. Louisiana, Inc. v. Galloway, 17-413 (La.

App. 4 Cir. 11/15/17); 231 So.3d 793, 801. “A petition should not be found

prescribed on its face if it is brought within one year of the date of discovery and

facts alleged with particularity in the petition show that the patient was unaware of

malpractice prior to the alleged date of discovery, and the delay in filing suit was

not due to willful, negligent, or unreasonable action of the patient.” Campo v.

Correa, 01-2707 (La. 6/21/02); 828 So.2d 502, 509.

Contra non valentum is a Louisiana jurisprudential doctrine under which

prescription may be suspended. In re Med. Review Panel Proceedings of Glover,

17-201 (La. App. 5 Cir. 10/25/17); 229 So.3d 655, 663. The Supreme Court has

recognized four circumstances in which contra non valentem prevents the running

of prescription: 1) where there is some legal cause which prevented the court or its

officers from taking cognizance of and acting on the plaintiff's actions; or 2) where

there is some condition coupled with the contract or coupled with the proceedings

which prevented the plaintiff from suing or acting; or 3) where the defendant has

done some act effectually to prevent the plaintiff from availing himself of his cause

of action; or 4) where the cause of action is not known or reasonably knowable by

the plaintiff, even though his ignorance is not induced by the defendant. In re

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Med. Review Panel of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19); 274

So.3d 750, 754–55, writ denied, 19-1034 (La. 10/1/19); 280 So.3d 165.

Here, according to the original Complaint and its attachments, the alleged

tortious act took place on December 15, 2016 during Oliver McMillan’s birth;

Appellants “later learned that their son [had] epilepsy and brain volume loss”

(emphasis added); discovered that Dr. Cohen’s decision not to deliver Oliver via

C-section may be the cause of their son’s condition on February 21, 2018; and filed

their PCF claim on March 15, 2018--one year and three months after the alleged

tort occurred. Because Appellants filed suit within one year of the date of

discovery, the Complaint was not prescribed on its face. Id.

At trial, Defendants properly introduced evidence that suggested that

Appellants knew or should have known that Oliver’s condition may have been the

result of malpractice. Louisiana Revised Statute 13:3714 states certified medical

records shall be received in evidence by such court as prima facie proof of its

contents, provided that the party against whom the bills, medical narrative, chart,

or record is sought to be used may summon and examine those making the original

of the bills, medical narrative, chart, or record as witnesses under cross-

examination. Appellants did not challenge the authenticity or veracity of Oliver’s

medical records.

In its April 30, 2019 Reasons for Judgment, the trial court observed that the

medical records contained documentation that two doctors thought Oliver’s

subdural hematomas “might be related to birth trauma[,]” and that Oliver was in

the hospital for 33 days in January of 2017 and 3 MRIs were performed during that

time. The district court determined that “[Appellants] failed to explain why they

did not ask what caused or could have caused their son's significant injury for over

a year.” We cannot say the trial court was clearly wrong when it reasoned that the

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certified medical records Defendants entered into the record supported a finding

that Appellants’ cause of action had prescribed.

This Court has held that, for the purposes of contra non valentem, the mere

availability of information, in and of itself, cannot serve as sufficient constructive

knowledge of a plaintiff's cause of action to start the running of prescription. In re

Med. Review Panel of Gerard Lindquist, 274 So.3d at 761. Specifically, we

stated:

In analyzing the reasonableness of a plaintiff's action or
inaction, and the distinction between what the plaintiff actually knew
and what the plaintiff could have known by further research, the
Louisiana Supreme Court has stated, “the law of prescription
references what a plaintiff knew or should have known about his
potential cause of action not what he could have known.”

Id. (citations omitted).

However, the facts of the case sub judice are distinguishable. First, in In re

Med. Review Panel of Gerard Lindquist, no evidence was introduced by the parties

prior to the trial court’s ruling at the hearing on the exception of prescription.

Thus, our standard of review was de novo in that case. Second, in that case, the

defendants unsuccessfully argued that the plaintiff, who was not a medical

professional, should have been able to interpret x-rays of the area where he

received treatment, in plaintiff’s possession, and detect a metal object had been left

in his back after surgery.

In the instant case, a previously healthy three-week old child experiencing

seizure-like activity and other serious health issues was taken to the emergency

room for diagnosis and treatment. The trial court remarked that “[Appellants]

contend without proof that they did not ask what caused or could have caused the

hemorrhage after any of those MRIs.” The trial court was not manifestly

erroneous when it concluded that Appellants “knew or should have known through

the exercise of reasonable diligence that [the child’s] problem may have been

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caused by acts of malpractice [. . . considering their] education, intelligence, the

severity of the symptoms, and the nature of the defendant's conduct.” See, Campo

v. Correa, 828 So.2d at 511.

Appellants insist that, in this case, the fourth circumstance of the contra non

valentum doctrine should be applied to interrupt prescription. In the Complaint

and the Amended Complaint, Ms. Burke and Mr. McMillan state that they first

learned on February 21, 2018 that their son’s condition was caused, at least in part,

by the failure to perform a C-section and the use of forceps during birth from

Ochsner – Main Campus and Ochsner Pediatric Clinic staff. But, Appellants did

not offer and introduce any evidence, not even the complaints themselves, into

record to support that assertion at the trial on the peremptory exception, or at the

hearing on the motion for new trial. Evidence not properly offered and introduced

cannot be considered, even if it was physically placed in the record. Calamia, 288

So.3d at 280; Bovie, 125 So.3d at 1161.

Because Defendants properly introduced competent evidence to support the

notion that Appellants’ cause of action had prescribed, and Appellants did not

introduce any evidence in support of their claim that their date of discovery of

possible malpractice was reasonable in this matter, we find that the trial court

properly found that Appellants’ cause of action had prescribed.

DECREE

For the foregoing reasons, we find that the trial court did not err when it

admitted the certified medical records at trial and sustained Defendants’

peremptory exception of prescription. Appellants are to bear the costs of this

appeal.

AFFIRMED

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 28, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-544
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
NADIA M. DE LA HOUSSAYE (APPELLEE)

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