Cheryl and Michael Mitchell v. Baton Rouge Orthopaedic Clinic, L.L.C. and Robert W. Easton, M.D.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0939

LCHERYL AND MICHAEL MITCHELL

v
L VERSUS

t' BATON ROUGE ORTHOPAEDIC CLINIC, L.L.C.
AND ROBERT W. EASTON, M.D.

Judgment Rendered: DEC 1 7 2020

On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 658229

Honorable Timothy E. Kelley, Judge Presiding

Nelson W. Wagar, III Attorneys for Plaintiffs/ Appellants,
Sarah W. Hickman Cheryl and Michael Mitchell
Mandeville, Louisiana

Tara S. Bourgeois Attorneys for Defendants/ Appellees,
Garrett S. Callaway Robert W. Easton, M.D., Baton Rouge
Herbert J. Mang, Jr. Orthopaedic Clinic, L.L.C., et al.
Nancy B. Roberts
Baton Rouge, Louisiana

BEFORE: GUIDRY, McCLENDON, HIGGINBOTHAM,
HOLDRIDGE, AND PENZATO, JJ.

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PENZATO, J.

Plaintiffs, Cheryl and Michael Mitchell, appeal a trial court judgment in

favor of defendants, Robert W. Easton, M.D., Baton Rouge Orthopaedic Clinic,

L.L.C., 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"), granting an exception raising

the objection of prescription and dismissing all of plaintiffs' claims. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 23, 2015, defendant Dr. Easton performed a left total hip

arthroplasty revision on plaintiff Cheryl Mitchell, during which Mrs. Mitchell' s

sciatic nerve was severed. Plaintiffs filed this medical malpractice action on May

26, 2017, alleging therein that Dr. Easton severed the nerve causing paralysis.

Plaintiffs further alleged that Mrs. Mitchell continued treatment with Dr. Easton

and that the basis for Dr. Easton' s continuing treatment and Mrs. Mitchell' s

continuing rehabilitation and further surgery was " her belief in and reliance upon

the physician/patient relationship and his advice that with such continued care and

rehabilitation, on his recommendation, the nerve would regenerate, heal and/ or

return her leg to a normal or acceptable condition." According to the petition, on

November 15, 2016, Dr. Easton advised Mrs. Mitchell that he no longer believed

that she would regain the function of her left lower extremity. Defendants filed a

peremptory exception raising the objection of prescription on the grounds that

plaintiffs' lawsuit, filed on May 26, 2017, alleged the date of medical malpractice

as August 23, 2015, and therefore was prescribed because it was not filed within

one year of the date of the alleged malpractice or within one year of the discovery

of the alleged malpractice.

An evidentiary hearing was held on March 18, 2019. Dr. Easton testified

that on August 11, 2015, he performed a left total hip arthroplasty on Mrs.

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Mitchell. Following the August 11, 2015 procedure, Mrs. Mitchell re -dislocated

her hip, and on August 23, 2015, Dr. Easton performed a revision of the August

11, 2015 arthroplasty. While Mrs. Mitchell was in the recovery room, Dr. Easton

noticed that Mrs. Mitchell had foot drop. According to his testimony at the hearing

on the exception raising the objection of prescription, he advised Mrs. Mitchell' s

family and returned Mrs. Mitchell to surgery to determine the cause. During this

second surgery, Dr. Easton discovered that Mrs. Mitchell' s sciatic nerve was

lacerated. Dr. Easton contacted Dr. Rasheed Ahmad, a hand surgeon with

experience in nerve repairs. Dr. Ahmad examined the wound and confirmed a

fresh laceration in the sciatic nerve. Dr. Ahmad repaired the nerve, and Dr. Easton

continued with the remainder of the surgery. Dr. Easton testified that after

completing the surgery, he advised Mr. Mitchell of the sciatic nerve injury and

subsequent repair. Dr. Easton further testified that the following day, he spoke to

Mrs. Mitchell and told her that her sciatic nerve had been lacerated during the hip

revision and that Dr. Ahmad had repaired it. He also told Mrs. Mitchell that she

had left foot drop as a result of the nerve injury. With regard to the prognosis of

her left foot drop, Dr. Easton testified he advised Mrs. Mitchell 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." According to Dr. Easton, he did not tell Mrs.

Mitchell that her sciatic nerve was going to regenerate, her left foot drop would

completely resolve, she was going to be better in a year, or in a year her left foot

would be back to normal.

Dr. Easton testified that upon Mrs. Mitchell' s discharge from the hospital

following the August 23, 2015 surgeries, she went to inpatient rehabilitation for

recovery from her left hip arthroplasty and subsequent revision. On September 30,

2015, Dr. Easton performed a revision of the left total hip arthroplasty. According

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to Dr. Easton, he performed this procedure because Mrs. Mitchell continued to

have dislocation issues; the procedure was not related to the sciatic nerve injury.

Dr. Easton testified that he continued to treat Mrs. Mitchell post-operatively until

November 15, 2016, to monitor the hip implant and to examine the joint and

prosthesis. He continued to monitor the sciatic nerve injury during that time to

determine if Mrs. Mitchell had any feeling or motion but was not treating her for

the nerve injury because there was no treatment for said injury. According to Dr.

Easton, the only treatment to restore nerve function was the repair that Dr. Ahmed

had performed. According to Dr. Easton, he never told Mrs. Mitchell that he

would fix, correct, or repair her sciatic nerve injury. He testified that his post-

operative treatment was standard for a hip arthroplasty and revision patient and

was not directed to or for Mrs. Mitchell' s sciatic nerve injury.

At the hearing on the exception, Mrs. Mitchell testified that the morning

following her August 23, 2015 surgery, Dr. Easton came to her hospital room and

told her that her sciatic nerve had been severed during the revision surgery and he

had called in another doctor to " get it back together." According to Mrs. Mitchell,

Dr. Easton told her that it was going to take up to a year before they would know

the full results of the surgery to repair her sciatic nerve and she should " not give up

hope." Mrs. Mitchell testified that during the course of her post-operative visits,

Dr. Easton continued to tell her " to wait a year" to determine the outcome of the

surgery to repair her sciatic nerve. Mrs. Mitchell acknowledged that she knew that

her foot had paralysis on August 24, 2015, but she did not immediately file suit

against Dr. Easton because she trusted him. According to Mrs. Mitchell, " He said

to give it a year, so that is what [ she] did. [ She] waited." However, Mrs. Mitchell

acknowledged that in a deposition she had previously given in this matter, she

testified that although she wanted to believe that her condition would improve

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within a year, she did not believe Dr. Easton when he said her condition would

improve in a year.

Mrs. Mitchell' s daughter, Michelle Goudeaux, also testified at the hearing.

According to Mrs. Goudeaux, following the August 23, 2015 surgery, Dr. Easton

advised Mrs. Mitchell' s family that the sciatic nerve had been severed or ruptured

and a hand specialist had been called to repair it. Mrs. Goudeaux testified that Dr.

Easton advised the family that he could not guarantee the nerve would come back,

but there was a possibility and that it would take time. According to Mrs.

Goudeaux, Dr. Easton said, " it would be so many millimeters a day that the nerve

would repair itself, and [ Mrs. Mitchell] may start to see some feeling from the top

of the leg down; it would just take time. It may be six months, it may be a year, it

could be longer." Russell Goudeaux, Michelle' s husband, also testified that Dr.

Easton did not guarantee the nerve would come back, but did say that nerves can

repair themselves and within a certain amount of time, six months but typically a

year, feeling could return. According to Mr. Goudeaux, Dr. Easton advised that it

may be up to a year or a little more before Mrs. Mitchell could start noticing some

feeling or movement back in the leg.

At the conclusion of the hearing, the trial court granted the exception and

provided oral reasons for judgment. The trial court found that upon review of the

medical records as a whole, not just portions of them taken out of context, it was

clear that Dr. Easton was providing treatment for Mrs. Mitchell' s hip revision and

not treating the sciatic nerve at all. The trial court noted that Dr. Easton admitted

that there is no treatment for the sciatic nerve and concluded:

There was no continued treatment of the sciatic nerve issue. The

treatment had to do with the regular follow-up of any and every hip
replacement patient to get them through the period of being pain- free
from the hip replacement.

Wi

The trial court found no evidence that Dr. Easton attempted to prevent Mrs.

Mitchell from availing herself of her cause of action. It noted that no one

contested the fact that Dr. Easton immediately disclosed the injury to Mrs. Mitchell

after the surgery and that Dr. Easton never told Mrs. Mitchell that the sciatic nerve

would actually take a year to heal. Thus, the trial court concluded that there was

no evidence that Dr. Easton was " stringing her out or anything like that until the

prescriptive period passed."
The trial court found that the third category of contra

non valentem, the " continuous treatment" rule, did not apply. The trial court

further recognized that Mrs. Mitchell was given facts sufficient to place a

reasonable person on notice that she had a claim long before the one- year

prescriptive period after the operation had expired and concluded that plaintiffs'

action had prescribed. Finding that contra non valentem did not apply, the trial

court dismissed the plaintiffs' claims.

The trial court signed a judgment on April 1, 2019, sustaining the exception

raising the objection of prescription and dismissing all of plaintiffs' claims.

Plaintiffs appealed,
alleging that the trial court erred in sustaining

defendants' exception raising the objection of prescription because Mrs. Mitchell

remained under continuous treatment by Dr. Easton until November 15, 2016, and

a civil action for damages was timely filed within one year of that date.

LAW AND DISCUSSION

The objection of prescription may be raised by a peremptory exception. La.

C. C. P. art. 927( A)( 1). Evidence may be introduced to support or controvert an

exception of prescription. La. C. C. P. art. 931. If evidence is introduced at the

hearing on the peremptory exception, the trial court' s findings of fact are reviewed

under the manifest error -clearly wrong standard of review. Clavier a Our Lady of

the Lake Hosp. Inc., 2012- 0560 ( La. App. 1 Cir. 12/ 28/ 12), 112 So. 3d 881, 888,

writ denied, 2013- 0264 ( La. 3/ 15/ 13), 109 So. 3d 384. Pursuant to this standard,

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the trial court' s ruling must be affirmed unless a reasonable factual basis does not

exist for the finding of the trial court, and the record establishes that the finding is

clearly wrong. Expert Riser Solutions, LLC a Techcrane International, LLC, 2018-

0612 ( La. App. 1 Cir. 12/ 28/ 18), 270 So. 3d 655, 660. The issue to be resolved by

a reviewing court is not whether the trier of fact was right or wrong, but whether

the factfinder' s conclusion was a reasonable one. Stobart a State through Dep t of

Transp. & Dev, 617 So. 2d 880, 882 ( La. 1993).

Louisiana Revised Statutes 9: 5628 establishes the time for filing medical

malpractice actions. The statute sets forth two prescriptive limits, namely one year

from the date of the alleged act or one year from the date of discovery with a three-

year limitation from the date of the alleged act, omission, or neglect to bring such

claims. Carter v Haygood, 2004- 0646 ( La. 1/ 19/ 05), 892 So. 2d 1261, 1268. To

soften the occasional harshness of prescriptive statutes, Louisiana courts have

recognized a jurisprudential exception to prescription: contra non valentem non

currit praescriptio, which means that prescription does not run against a person

who could not bring his suit. Id. There are four recognized categories of contra

non valentem: ( 1) where there was some legal cause which prevented the courts or

their officers from taking cognizance of or acting on the plaintiff' s action; ( 2)

where there was some condition coupled with the contract or connected with the

proceedings which prevented the creditor from suing or acting; ( 3) where the

debtor himself has done some act effectually to prevent the creditor from availing

himself of his cause of action; and ( 4) where the cause of action is not known or

reasonably knowable by the plaintiff, even though this ignorance is not induced by

the defendant. Kirby v Field, 2004- 1898 ( La. App. 1 Cir. 9/ 23/ 05), 923 So. 2d

131, 135, writ denied, 2005- 2467 ( La. 3/ 24/ 06), 925 So. 2d 1230.

Plaintiffs contend that the undisputed facts of this case compel application of

the third category of contra non valentem, the " continuous treatment" rule. The

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third category of contra non valentem has been held to encompass situations where

an innocent plaintiff has been lulled into a course of inaction in the enforcement of

his right by reason of some concealment or fraudulent conduct on the part of the

defendant, or because of his failure to perform some legal duty whereby plaintiff

has been kept in ignorance of his rights. Carter, 892 So. 2d at 1269. In certain

circumstances, a doctor' s continuing professional relationship with his patient

might give rise to the suspension or interruption of prescription. Id. This

interruption or suspension of prescription by the continued existence of a

professional relationship is based on the premise that the professional relationship

is likely to hinder the patient' s inclination to sue. Id.

The continuing treatment rule requires a plaintiff to establish the existence of

1) a continuing treatment relationship with the physician, which is more than

perfunctory, during which ( 2) the physician engaged in conduct which served to

prevent the patient from availing herself of her cause of action, such as attempting

to rectify an alleged act of malpractice. Carter, 892 So. 2d at 1271.

Plaintiffs contend that Dr. Easton' s reassurances that Mrs. Mitchell would

have to wait a year to determine whether the nerve would regenerate was sufficient

to suspend prescription, particularly given the fact that her prognosis for

regeneration of the sciatic nerve was dubious. Plaintiffs argue that the facts of this

case compel a holding consistent with In re Noe, 2004- 0760 ( La. App. 4 Cir.

8/ 3/ 05), 916 So. 2d 1138, aff' d in part, rev' d in part, 2005- 2275 ( La. 5/ 22/ 07), 958

So. 2d 617.

In Noe, plaintiff received a steroid injection for sinus congestion on June 11,

2001. Noe, 916 So. 2d at 1140. Within one week of the injection, a knot

developed at the site of the injection, and one month after the injection, plaintiff

experienced an increase in pain and suffered atrophy of the buttock muscle. On

August 6, 2001, plaintiff returned to her doctor because of persistent pain and

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discoloration in the injection area, and he placed her on a one- year recovery

program and reassured her that it would resolve in time. Id. Plaintiff continued to

treat with her doctor for the injury. On April 3, 2002, due to plaintiff' s increasing

symptoms, her doctor referred her to a neurologist and ordered a nerve conduction

study and an MRI, which revealed nerve injury relating to the injection. Id.

Plaintiff filed a medical malpractice claim on March 12, 2003, asserting she

learned for the first time in April 2002 that the injection was the cause of her

continuing back, buttock, and leg pain. Id. The defendant doctor filed an

exception raising the objection of prescription, which the trial court granted. The

Louisiana Fourth Circuit Court of Appeal reversed, finding that the continuing

doctor -patient relationship coupled with the defendant doctor' s reassurances of

recovery and his treatment plan " thwarted [ plaintiff' s] inclination to bring suit and

prevented the claim from prescribing." Id. at 1143. The Louisiana Supreme Court

affirmed the decision in pertinent part. Noe, 958 So. 2d 617.

In contrast to Noe, the record in this case establishes that the trial court' s

conclusion that there was no continued treatment of the sciatic nerve injury is a

reasonable one. Moreover, in this case, the evidence indicates that plaintiffs were

aware that Mrs. Mitchell' s sciatic nerve had been severed during surgery, causing

her foot drop. Unlike the defendant doctor in Noe, Dr. Easton did not make

assurances of recovery; rather, he advised Mrs. Mitchell that it could take up to a

year before they would know the full results of the surgery to repair the nerve. The

trial court' s finding that there was no evidence that Dr. Easton engaged in any

conduct that prevented plaintiffs from filing suit is not clearly wrong. In the

absence of any proof of such conduct amounting to fraud, misrepresentation, or

intentional concealment by Dr. Easton, the continuing treatment rule is not

applicable. E.g., McCauley a Stubbs, 2017- 933 ( La. App. 3 Cir. 4/ 25/ 18), 245 So.

3d 415 47; Wilkerson a Dunham, 2016- 1056 ( La. App. 4 Cir. 5/ 3/ 17), 218 So. 3d

I

743, 749, writ denied, 2017- 0932 ( La. 9/ 29/ 17), 227 So. 3d 287; Jimerson u

Majors, 51, 097 ( La. App. 2 Cir. 1/ 11/ 17), 211 So. 3d651, 658.

Accordingly, we find that the trial court did not manifestly err in concluding

that plaintiffs' claims against defendants have prescribed.

CONCLUSION

For these reasons, the trial court' s April 1, 2019 judgment sustaining the

peremptory exception raising the objection of prescription filed by defendants,

Robert W. Easton, M.D., Baton Rouge Orthopaedic Clinic, L.L.C., Physician

Assurance SPC as part of YBridge Insurance Company, and Baton Rouge

Orthopaedic Clinic Segregated Portfolio Company as part of YBridge Insurance

SPC, and dismissing all claims by Cheryl and Michael Mitchell against them is

affirmed. Appeal costs are assessed to plaintiffs, Cheryl and Michael Mitchell.

AFFIRMED.

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CHERYL AND MICHAEL MITCHELL STATE OF LOUISIANA

VERSUS COURT OF APPEAL

BATON ROUGE ORTHOPAEDIC FIRST CIRCUIT
CLINIC, L.L.C. AND ROBERT W.
EASTON, M.D. 2019 CA 0939

HOLDRIDGE, J., dissenting

I respectfully dissent. I find that the continuing treatment rule applies in this

case to suspend the running of prescription on Mrs. Mitchell' s cause of action

against Dr. Easton until such time as Dr. Easton' s treatment and monitoring of

Mrs. Mitchell ended on November 15, 2016. Therefore, this malpractice lawsuit,

filed on May 26, 2017, within one year of the date on which the treatment was

terminated, is timely.

In order for the continuing treatment exception to prescription to apply to a

medical malpractice claim, the plaintiff must establish: ( 1) a continuing treatment

relationship with the physician, which is more than perfunctory in nature, during

which ( 2) the physician engaged in conduct which served to prevent the plaintiff

from availing herself of her cause of action, such as attempting to rectify an alleged

act of malpractice. Carter v. Haygood, 2004- 0646 ( La. 1/ 19/ 05), 892 So. 2d 1261,

1271. Both elements are satisfied in this case.

First, the trial court' s conclusion that there was no continued treatment of

Mrs. Mitchell' s sciatic nerve injury by Dr. Easton is not supported by the record

and is contrary to the Supreme Court' s decision in Carter. In this case, after

admittedly injuring Mrs. Mitchell' s sciatic nerve during the August 23, 2015 hip

surgery, Dr. Easton had another physician attempt to repair that injury. Dr. Easton

admitted that he continued to monitor the progress of Mrs. Mitchell' s nerve injury

throughout the course of his continued treatment and monitoring of Mrs. Mitchell' s

hip condition. Further, due to the type of injury suffered, Dr. Easton confirmed

that monitoring Mrs. Mitchell' s progress after the repair of the severed nerve was

the only treatment available. He stated, "[ t]he treatment of any lacerated nerve is

to repair it and hopefully get an end-to- end anastomosis, and then you just have to

wait and see." He further testified, "[ t]here is really nothing to do with the sciatic

nerve injury other than see how she was doing and everything else.... I was

monitoring to see if she had any feeling or motion." Dr. Easton advised Mrs.

Mitchell that "[ t]here is a possibility it could recover, there is a possibility it might

not recover, but most of the time at the year mark, whatever function you have,

that is kind of what you are left with." Accordingly, Dr. Easton' s continued

treatment and assessment of Mrs. Mitchell' s sciatic nerve injury during his

treatment of Mrs. Mitchell satisfies Carter' s requirement that there be a

continuing treatment relationship between Mrs. Mitchell and Dr. Easton.

As to Carter' s second element, without question, Dr. Easton advised Mrs.

Mitchell that there was a possibility she could recover from the damage he caused

by injuring her sciatic nerve, and he set the time frame of the possible recovery at

the one- year mark. I find that Dr. Easton' s actions in advising Mrs. Mitchell of the

possibility of recovery within a one- year time frame, coupled with his continued

treatment of Mrs. Mitchell, which treatment included monitoring of the progress of

the sciatic nerve injury, served to effectively prevent Mrs. Mitchell from pursing a

lawsuit against him. Mrs. Mitchell was entirely reasonable in relying on Dr.

Easton' s advice in failing to file a lawsuit against him until after the expiration of

the one- year recovery period. If she had significant or full recovery after one year,

she may not have filed suit.

The continuing treatment rule was developed to protect the element of trust

that is vital to the doctor -patient relationship. See Carter, 892 So. 2d at 1273.

Interruption or suspension of prescription due to a continued professional

relationship is based upon the premise that the professional relationship is " likely

to hinder the patient' s inclination to sue." Abrams v. Herbert, 590 So. 2d 1291,

1295 ( La. App. 1St Cir. 1991). The facts of this case illustrate precisely why the

continuing treatment rule should be applied to suspend prescription on Mrs.

Mitchell' s claim against Dr. Easton. Dr. Easton lacerated Mrs. Mitchell' s sciatic

nerve during hip surgery on August 23, 2015, attempted immediately to rectify that

error, and advised his patient of the error and the one- year recovery period needed

to determine the extent of such injuries. Dr. Easton continued to treat Mrs.

Mitchell throughout that one- year recovery period, which included monitoring the

progress of both the hip replacement surgery and the sciatic nerve injury he

inflicted during that surgery. I find that prescription on Mrs. Mitchell' s cause of

action against Dr. Easton did not commence to run until the termination of their

professional relationship on November 15, 2016. To hold otherwise would force a

victim of malpractice to initiate a lawsuit against her physician while the doctor -

patient relationship is ongoing and before it is known whether the attempt to rectify

the alleged act of malpractice by that doctor in fact succeeded. Such a lawsuit, in

most cases, would terminate the doctor -patient relationship and require the patient

to find a new doctor. It would also result in the filing of more medical malpractice

cases wherein the patient is legally obligated to file suit against her doctor even

though she would not have sued had her condition been rectified after a period of

time. I do not believe this is the result contemplated by the Medical Malpractice

Act. For all of these reasons, I find that the trial court erred in sustaining the

prescription objection, and I would remand the matter to the trial court for further

proceedings.