Pamela Fisher v. the Blood Center and Abc Insurance Company

PAMELA FISHER * NO. 2019-CA-0846

VERSUS *
COURT OF APPEAL
THE BLOOD CENTER AND *
ABC INSURANCE COMPANY FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-01183, DIVISION “B-1”
Honorable Rachael Johnson,
******
Judge Paula A. Brown
******
(Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown,
Judge Dale N. Atkins)

Michelle Hazelett Hesni
LAW OFFICE OF MICHELLE H. HESNI, PLC
412 Dolhonde Street
Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLANT

L. David Adams
C. William Bradley, Jr.
BRADLEY MURCHISON KELLY & SHEA LLC
1100 Poydras Street, Suite 2700
New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED
February 12, 2020

This is a medical malpractice action. Plaintiff/Appellant, Pamela Fisher

(“Ms. Fisher’), appeals the district court’s judgment granting the exception of

prescription filed on behalf of Defendant/Appellee, The Blood Center. For the

reasons that follow, we vacate the district court’s judgment and remand for further

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

On December 23, 2016, Ms. Fisher donated blood at the Blood Center.

Immediately before the actual donation, an employee of The Blood Center

“pricked” Ms. Fisher’s finger to obtain a blood sample. Several days later, Ms.

Fisher experienced pain and swelling in her finger.

Ms. Fisher filed a complaint on December 21, 2017, with the Patient

Compensation Fund, Division of Administration (the “PCF”), requesting a Medical

Review Panel (“MRP”), wherein she named The New Orleans Blood Bank (the

“Blood Bank”) as the entity that had provided the substandard care.

On February 6, 2018, Ms. Fisher filed a petition for damages in Civil

District Court (the “Petition”) against The Blood Center, alleging she sustained

injuries on December 23, 2016, due to the negligence of The Blood Center’s

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employee who pricked her finger. Ms. Fisher further alleged that she timely

requested a MRP and was “notified by letter dated January 4, 2018, from the

Division of Administration, that [The Blood Center] w[as] not qualified under the

provisions of Louisiana Revised Statute 40:1237.2.”

In response, The Blood Center filed an exception of prematurity. The Blood

Center argued Ms. Fisher’s Petition was premature as Ms. Fisher had never

presented a malpractice complaint against The Blood Center1 with the PCF in

accord with La. R.S. 40:1231.8(A)(1)(a) and (B)(1)(a)(i).2 On July 2, 2018, the

district court executed a consent judgment entered into between the parties which

maintained the exception of prematurity and dismissed Ms. Fisher’s Petition

without prejudice.

On June 14, 2018, Ms. Fisher filed a complaint with the PCF against The

Blood Center, requesting a MRP, and an amended complaint with the PCF on

August 23, 2018. In response, on September 17, 2018, the Blood Center filed an

exception of prescription. The Blood Center contended Ms. Fisher’s complaint

filed against The Blood Center with the PCF was prescribed on its face as the

complaint was filed more than a year since the date of the alleged malpractice.

The district court heard The Blood Center’s exception of prescription on

May 31, 2019. At the conclusion of argument, the district court granted the

exception of prescription, dismissing Ms. Fisher’s case with prejudice.

1
Ms. Harris’ first complaint filed with the PCF was filed against The New Orleans Blood Bank.
2
La. R.S. 40:1231.8(A)(1)(a) provides, in pertinent part, that “[a]ll malpractice claims against
health care providers covered by this Part, other than claims validly agreed for submission to a
lawfully binding arbitration procedure, shall be reviewed by a medical review panel established
as hereinafter provided for in this Section;” and La. R.S. 40:1231.8(B)(1)(a)(i) states that “[n]o
action against a health care provider covered by this Part, or his insurer, may be commenced in
any court before the claimant’s proposed complaint has been present to a medical review panel
established pursuant to this Section.”

2

This devolutive appeal followed.

STANDARD OF REVIEW

This Court, in 639 Julia Street Partners v. City of New Orleans, 2017-0940,

p. 4 (La. App. 4 Cir. 5/2/18), 246 So.3d 847, 849, quoting Wells Fargo Fin.

Louisiana, Inc. v. Galloway, 2017-0413, pp. 7-8 (La. App. 4 Cir. 11/15/17), 231

So.3d 793, 799-800, explained:

[a] peremptory exception generally raises a purely legal
question. See Metairie III v. Poche' Const., Inc., [20]10-
0353, p. 3 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449.
Nonetheless, evidence may be introduced in the trial
court to support or controvert a peremptory exception of
prescription. See La. C.C.P. art. 931 (providing that
“evidence may be introduced to support or controvert any
of the objections pleaded, when the grounds thereof do
not appear from the petition”). The standard of review of
a trial court’s ruling on a peremptory exception of
prescription turns on whether evidence is
introduced. State v. Thompson, [20]16-0409, p. 18 (La.
App. 4 Cir. 11/23/16), 204 So.3d 1019, 1031 (citing
Miralda v. Gonzalez, [20]14-0888, pp. 17-18 (La. App. 4
Cir. 2/4/15), 160 So.3d 998, 1009).

When evidence is introduce at the hearing on an exception of prescription,

the district court’s findings of fact are reviewed subject to the manifest error-

clearly wrong standard of review. In re Medical Review Panel of Hurst, 2016-

0934, p. 4 (La. App. 4 Cir. 5/3/17), 220 So.3d 121, 125-126. Under the manifest

error standard, well-settled jurisprudence provides that “[i]f the trial court’s or

jury’s findings are reasonable in light of the record reviewed in its entirety, the

court of appeal may not reverse. . .” Stobart v. State, Dep’t of Trans. And Dev.,

617 So.2d 880, 882-883 (La. 1993). When no evidence is introduced, the

exception of prescription is decided on the facts pled in the petition, which are

accepted as true, and “the judgment is reviewed simply to determine whether the

trial court’s decision was legally correct.” 639 Julia Street, 2017-0940, p. 4, 246

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So.3d at 849, (citing Arton v. Tedesco, [20]14-1281, p. 3 (La. App. 3 Cir. 4/29/15),

176 So.3d 1125, 1128). “[T]he standard controlling our review of a peremptory

exception of prescription also requires that we strictly construe the statutes against

prescription and in favor of the claim that is said to be extinguished.” 639 Julia

Street, 2017-0940, p. 4, 246 So.3d at 850, (citing Felix v. Safeway Ins. Co., 2015-

0701, p. 6 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 631)).

DISCUSSION

Prescriptive Period for Medical Malpractice Actions

As referenced in In re Benoit, 2017-0802, p. 6 (La. App. 4 Cir. 4/11/18), 244

So.3d 44, 49, writ denied, 2018-0761 (La. 9/21/18), 252 So.3d 898, La. R.S.

9:5628(A) imposes a three-year deadline in which to file a medical malpractice

claim. La. R.S. 9:5628(A) provides, in pertinent part, the following:

No action for damages for injury or death against any physician . . .
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.

“Prescription commences when a plaintiff obtains actual or constructive

knowledge of facts indicating to a reasonable person that he or she is the victim of

a tort.” Campo v. Correa, 2001-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502,

510. Accordingly, a plaintiff need not have actual knowledge—constructive

knowledge that excites attention and places the “injured party on guard and call for

inquiry” is sufficient to trigger the running of prescription. Id. at p. 12, 828 So.2d

at 510-11.

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Ordinarily, the mover bears the burden of proof at the trial on the exception

of prescription. Hurst, 2016-0934, p. 5, 220 So.3d at 126. “If, however, the

petition on its face reveals that prescription has run, the burden of proof shifts to

the plaintiff to show his action has not prescribed.” Id. (citations omitted).

Assignments of Error

Ms. Fisher argues the district court erred in the following respects: (1)

sustaining The Blood Center’s exception of prescription despite The Blood

Center’s failure to introduce evidence in the record in support of its exception; (2)

sustaining The Blood Center’s exception of prescription despite Ms. Fisher’s

timely assertion of her claim within one year of discovery of the malpractice; and

(3) failing to apply the doctrine of contra non valentum. We will address each

assigned error in turn.

Failure to Introduce Evidence

Ms. Fisher contends there is no petition in the record. She argues The Blood

Center’s exception of prescription is based on her complaint against The Blood

Center filed with the PCF, requesting a MRP. Ms. Fisher urges The Blood Center

did not prove the complaint filed with the PCF against The Blood Center was

prescribed on its face because it failed to introduce the complaint into evidence.

Although the PCP complaint was attached to the Blood Center’s memorandum as

an exhibit, Ms. Fisher argues that exhibits not properly introduced into evidence

cannot be reviewed by this Court. In support, Ms. Fisher cites 639 Julia Street,

supra.

In 639 Julia Street, the property owner filed a negligence suit in 2011

against the City of New Orleans and others for damages allegedly caused by trees

planted near the property owner’s building. Defendants filed an exception of

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prescription contending the property owner had knowledge of the damages as early

as 2000; as such, based on the one-year liberative prescriptive period, the property

owner’s action had prescribed. In opposition, the property owner argued

Defendants had failed to formally admit any evidence into the record at the hearing

on the exception. Citing Denoux v. Vessel Mgmt. Servs., Inc., 2007-2143, p. 5 (La.

5/21/08), 983 So.2d 84, 88, this Court espoused that “[e]vidence not properly and

officially offered and introduced cannot be considered, even it if is physically

placed in the record. Documents attached to memoranda do not constitute

evidence and cannot be considered as such on appeal.” 639 Julia Street, 2017-

0940, p. 5, 246 So.3d at 850. The Court concluded Defendants had failed to meet

their burden of proof to show the property owner’s claim had prescribed on the

face of the petition. As such, the Court reversed the district court’s judgment

granting the exception of prescription. Likewise, Ms. Fisher argues this Court

should reach a similar result.

In response, The Blood Center argues, notwithstanding its failure to

introduce evidence, other pleadings contained in the district court and appellate

court record, such as Ms. Fisher’s Petition, the consent judgment maintaining The

Blood Center’s exception of prematurity, along with declarations made in Ms.

Fisher’s appellate brief and opposition memorandum to the exception of

prescription constitute judicial confessions3 sufficient to shift the burden of proof

to Ms. Fisher to show that her complaint filed with the PCF was timely filed. We

disagree.

3
La. C.C. art. 1853 provides, in pertinent part, that “[a] judicial confession is a declaration made
by a party in a judicial proceeding. That confession constitutes full proof against the party who
made it.”

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In the case sub judice, The Blood Center’s exception of prescription was

based on the complaint Ms. Fisher filed with the PCF against The Blood Center.

No evidence, particularly the complaint at issue, was formally introduced by The

Blood Center at the hearing on the exception in support of its assertion that the

complaint Ms. Fisher filed against The Blood Center was in fact prescribed on its

face. As discussed supra, documents attached to The Blood Center’s

memorandum are not evidence and cannot be considered by this court. Absent any

evidence to the contrary, we conclude The Blood Center failed to make a prima

facie showing that Ms. Fisher’s complaint filed with the PCF was not filed within

the delays allowed pursuant to La. R.S. 9:5628(A); and the appellate record is

insufficient to support the district court’s ruling sustaining The Blood Center’s

exception of prescription. This assignment of error has merit.

Having found The Blood Center failed to meet its burden of proof, we

pretermit discussion of Ms. Fisher’s other assignment of errors.

CONCLUSION

Based on the foregoing reasons, we vacate the judgment of the district court

and remand for further proceedings consistent with opinion.

VACATED AND REMANDED

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