William Cook and Renee Soileau v. Carl Swayze Rigby, M.D. and Louisiana Medical Mutual Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CA 1475

WILLIAM COOK & RENEE SOILEAU

VERSUS

CARL SWAYZE RIGBY, M.D. & LOUISIANA MEDICAL MUTUAL
INSURANCE COMPANY

OV 2 5 2020
Judgment Rendered:

Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number C633382
Honorable William A. Morvant, Judge Presiding

Michael C. Palmintier Counsel for Plaintiffs/ Appellants,
Baton Rouge, LA William Cook & Renee Soileau

Herbert J. Mang, Jr. Counsel for Defendants/ Appellees,
Tara S. Bourgeois Carl Swayze Rigby, MD & Louisiana
Carey M. Nichols Medical Mutual Insurance Company
Nancy B. Roberts
Jonathan Thomas
Baton Rouge, LA

Douglas K. Williams Counsel for Defendant/Appellee,
Chris D. Billings Our Lady of the Lake Hospital, Inc.
Kelsey A. Clark
Katherine D. Cook
Baton Rouge, LA

Vance A. Gibbs Counsel for Defendants/Appellees,
Randal R. Cangelosi Matthew A. Stair, MD, Michael L. Bruce,
Jason R. Cashio MD, David W. Walker, MD, Radiology
Baton Rouge, LA Associates, LLC & Louisiana Medical
Mutual Insurance Company

X Y' lC ; CY7C 2C 7CX X̀

BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.

WHIPPLE, C.J.

This matter is before us on appeal by plaintiffs, William Cook and Renee

Soileau, from a judgment of the trial court maintaining a peremptory exception of

prescription in favor of defendants, Matthew A. Stair, M.D., Michael L. Bruce,

M.D., David W. Walker, M.D., Radiology Associates, L.L.C., and Louisiana

Medical Mutual Insurance Company (" LAMMICO"), and dismissing plaintiffs'

claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

William Cook underwent a mitral valve repair surgery performed by Dr.

Carl Swayze Rigby on July 20, 2012. In January of 2013, Cook' s cardiologist

discovered a retractor bolt in Cook' s pericardium, which purportedly had fallen

from a surgical instrument during the 2012 valve repair surgery. On July 19, 2013,

Cook and his wife, Renee Soileau, filed a complaint against Dr. Rigby with the

Patient' s Compensation Fund (" PCF") to establish a medical review panel in

accordance with the provisions of the Louisiana Medical Malpractice Act

MMA"). However, after a panel chairman was not appointed within one year

pursuant to LSA- R.S. 40: 1299. 47( C), the claim was dismissed.' Thereafter, on

September 9, 2014, plaintiffs filed the instant medical malpractice suit against Dr.

2
Rigby and his insurer, LAMMICO.

On July 13, 2018, plaintiffs filed an amended and supplemental petition

naming Kapp Surgical Instrument, Inc. (" Kapp"), Our Lady of the Lake Hospital,

Inc. (" OLOL"), Radiology Associates, LLC, Matthew Allen Stair, M.D., Michael

Pursuant to House Concurrent Resolution No. 84 of the 2015 Regular Session, Title 40
was recodified in its entirety and the MMA, formerly cited as LSA-R.S. 40: 1299.41, et seq., was
redesignated as LSA- R. S. 40: 1231. 1, et seq. In particular, LSA-R.S. 40: 1299. 47 was
redesignated as LSA-R.S. 40: 1231. 8. For ease of reference, all citations hereinafter are to the
So. 3d
current statutory designation. See Kirt v. Metzinger, 2019- 1162 ( La. 4/ 3/ 20), _
n. 3.

2Piaintiffs asserted constitutional challenges to LSA-R.S. 40: 1237. 2, et seq., which the
parties agreed to bifurcate and try " if, and only if, following conclusion of trial on the merits, one
of the defendants whose liability is limited by the statute in question is found liable to the
plaintiffs herein in an amount in excess of the statutory limits."
2

Lynn Bruce, M.D., David Wyman Walker, M.D., and their insurer, LAMMICO, as

defendants, based on allegations made by Dr. Rigby in a September 2417

deposition, regarding negligence in the interpretation of radiological images by
Drs. Stair, Bruce, and Walker on July 20, 21, and 23, 2412, and the liability of the

bolt' s manufacturer. On the same date, plaintiffs filed a petition to establish a

medical review panel with the PCF against the newly added healthcare defendants.

Radiology Associates, LLC, Drs. Stair, Bruce, Walker, and LAMMICO

the radiology defendants") subsequently filed a peremptory exception of

prescription, contending that plaintiffs' claims against them filed in July of 2018

were filed over three years after their alleged actions involving interpretation of

radiological images in July of 2012, and that in the absence of the suspension or

interruption of prescription, the claims are thus prescribed on their face pursuant to

LSA-R.S. 9: 5628( A). Following a hearing, the trial court found that plaintiffs'

claims had prescribed. Accordingly, on June 27, 2419, the trial court signed a

judgment granting the exception of prescription and dismissing plaintiffs' claims

against the radiology defendants with prejudice.3

Plaintiffs now appeal, contending that the MMA should not be interpreted to

override the general interruption-of7prescription and relation -back principles

established in the Civil Code and Code of Civil Procedure.

DISCUSSION

Ordinarily, the party pleading prescription bears the burden of proving the

claim has prescribed. However, when the face of the petition reveals that the

plaintiffs' claims have prescribed, the burden shifts to the plaintiffs to

demonstrate prescription was suspended or interrupted. See LeBreton v. Rabito,

97- 2221 ( La. 7/ 8/ 98), 714 So. 2d 1226, 1228; Johnson v. Shafor, 2008- 2145 ( La.

3Plaintiffs' claims against Kapp, a non -healthcare provider, and OLOL were also
dismissed with prejudice pursuant to exceptions of prescription. Plaintiffs' appeals of those

judgments are also pending before this court.

3

7/ 29/ 09), 22 So. 3d 935, 938- 39, writ denied, 2009- 1921 ( La.
App. 1st Cir.

11/ 20/ 09), 25 So. 3d 812. When, as in this case, no evidence is introduced at the

hearing to support or controvert the exception of prescription, the exception must
be decided upon facts alleged in the petition with all allegations accepted as true.'

See LSA-C. C.P. art. 931; Cichirillo v Avondale Industries, Inc., 2004- 2894 ( La.

11/ 29/ 05), 917 So. 2d 424, 428. If no evidence is introduced to support or

controvert the exception, the manifest error standard of review does not apply, and

the appellate court' s role is to detennine whether the trial court' s ruling was legally

correct. Harris v. Breaud, 2017- 0421 ( La. App. Pt Cir. 2/ 27/ 18), 243 So. 3d 572,

578- 579.

The prescriptive period for actions based on medical malpractice is set forth

in LSA-R.S. 9: 5628( A), which requires that such claims be brought within one

year of the alleged act, omission, or neglect, or within one year from the date of

discovery. Additionally, even as to claims filed within one year of the discovery of

the alleged malpractice, all such claims must be filed, at the latest, within three

years from the date of the alleged act, omission, or neglect. LSA-R.S. 9: 5628( A).5

Both the one-year and three- year periods set forth in LSA-R.S. 9: 5628 are

prescriptive, with the qualification that the contra non valentem type exception to

prescription embodied in the discovery rule is expressly made inapplicable after

documents attached to
Unless properly offered and introduced into evidence,
memoranda do not constitute evidence and cannot be considered on appeal. Atain Speciality

Insurance Company v Premier Performance Marine, LLC, 2015- 1128 ( La. App. IS` Cir. 4/ 8/ 16),
193 So. 3d 187, 290.

5Louisiana Revised Statute 9: 5628( A) provides, in pertinent part, that:

whether
No action for damages for injury or death against any physician, [...]
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. [ Emphasis added.]

EI

three years from the act, omission, or neglect. Harris v. Breaud, 243 So. 3d at 578,

titin Borel v. Young, 2007- 0419 ( La. 11/ 27/ 07), 989 So. 2d 42, 48 ( on rehearing).

The Louisiana Supreme Court has determined that medical malpractice

claims are governed by the specific provisions of the MMA regarding suspension

of prescription to the exclusion of general codal articles on interruption -of -

prescription and relation -back principles. Warren v. Louisiana Medical Mutual

Insurance Company, 2007- 0492 ( La. 6/ 26/ 09), 21 So. 3d 186, 207 ( on rehearing).

In Warren, the Supreme Court reaffirmed its prior holdings in Borel and LeBreton

and rejected the application of LSA-C.C. arts. 3462 and 2324( C) regarding the

interruption of prescription, as well as the application of LSA-C. C. P. art. 1153

regarding relation -back principles, in medical malpractice actions. See Warren v.

Louisiana Medical Insurance Company, 21 So. 3d at 206- 208. In determining that

the general articles could not be applied to claims governed by the more specific

provisions of the MMA, the court reasoned as follows:

LeBreton and Borel stand for the proposition that medical malpractice
claims are governed by the specific provisions of the Medical
Malpractice Act regarding suspension of prescription to the exclusion
of the general codal articles on interruption of prescription. These
cases are equally applicable here. The expressed reasoning behind the
holding in LeBreton was that if the general rules on interruption were
to apply to a medical malpractice action, " then the prescription and
suspension provisions provided in the Medical Malpractice Act will
be written out," and "[ t]herein lies the conflict." LeBreton, supra at
1230. Although La. C. C. P. art. 1153 does not " interrupt" prescription
as did the general codal articles in LeBreton and Borel, " relation
back" of an untimely filed amended petition directly avoids the
application of prescription by allowing a claim that would have
otherwise prescribed to proceed. The effect of this interference is that
if relation back is allowed, the " prescription and suspension

provisions provided in the Medical Malpractice Act will be written
out," which, as we recognized in LeBreton, presents " a conflict."

LeBreton, supra at 1230. Further, the application of La. C. C.P. art.
1153 " would potentially subject a health care provider to an indefinite
period of prescription, ... a result clearly at odds with the purpose of
the [ Act]." Borel, supra at 68, n. 12. Because medical malpractice

actions are governed by the specific provisions of the Act regarding
prescription and suspension of prescription, under Borel, we find that
any general codal article which conflicts with these provisions may
not be applied to such actions in the absence of specific legislative

5

authorization in the Act. The Act has no rules allowing relation back
of pleadings for medical malpractice claims. The application of
the of an [ sic] plaintiff
Article 1153 would permit adding
subsequent to the expiration of the three- year period provided for in
La. R.S. 9: 5628, and would read out of the statute the prescription and
suspension period provisions by La. R.S. 9: 5628 and La. R.S.
40: 1299. 47; therefore, La. C. C. P. art. 1153 may not be applied to the
medical malpractice action under the reasoning
of LeBreton and Borel.

Warren v Louisiana Medical Insurance Company, 21 So. 3d at 207- 208 ( footnote

omitted).

Here, plaintiffs' petition and complaint with the PCF state that the alleged

negligent interpretation of Cook' s x-rays by the radiology defendants occurred on

July 20, 21, and 23, 2012. Where both were filed more than three years later on

July 13, 2018, the claims are prescribed on their face pursuant to LSA-R.S.

9: 5628( A). Plaintiffs thus bear the burden of establishing that their claims have

not prescribed. See LeBreton v. Rabito, 714 So. 2d at 1228. Recognizing the

difficulties of meeting this burden under the aforementioned law, however,

plaintiffs ask this court to " re -visit the underpinnings" of Borel and Warren and

enter an opinion consistent with the views expressed in the dissenting opinions of

Chief Justices Calegero and Johnson therein.

Plaintiffs argue that the current interpretation of the MMA effectively

eliminates the interruption -of p
- rescription and relation -back principles set forth in

LSA- C. C. art. 2324 and LSA- C. C. P. art. 1153, and thereby encourages potentially

liable medical malpractice defendants to delay revealing or to instead conceal

malpractice committed by other parties, while simultaneously urging, as a defense

to their own actions, the conduct of such third parties. Plaintiffs contend that the

effect of applying those rulings herein prevents potentially liable radiologists from

being added to the lawsuit after a timely sued healthcare provider, Dr. Rigby,
pointed the finger at them" three years after he allowed a medical review panel to

lapse. Plaintiffs further contend that the traditional suspension of prescription

0

through the discovery rule is especially necessary in a medical malpractice case,

where the issues are very complicated, the discovery process takes time, and, more

importantly, defendants are in a superior position of knowledge regarding the facts,

circumstances, and liability in the case.

The radiology defendants counter that although plaintiffs aver that they did

not discover the alleged acts of negligence until Dr. Rigby' s deposition in

September of 2017, no action was taken on their part to deliberately conceal any

potential claim against them. Moreover, the radiology defendants contend that the

bolt found in Cook' s chest was identified in an x-ray taken January 29, 2013, thus

supplying plaintiffs with every reason to question the earlier interpretation of post-

surgery x-rays taken by the radiologists on July 20, 21, and 23, 2012, yet plaintiffs

failed to do so. The radiology defendants conclude that plaintiffs simply failed to

inquire into the scope of the radiologists' treatment and care in interpreting the

earlier post-surgical x-rays and are now attempting to shift the blame for their

failure to investigate to Dr. Rigby.

We are constrained to agree that the claims against these defendants are

prescribed. Plaintiffs have presented this court with no legal authority to support

the application of the general Civil Code and Code of Civil Procedure articles

relative to interruption -of prescription
- and relation -back in their medical

malpractice action against these particular parties. An appellate court is bound to

adjudge a case before it in accordance with the law existing at the time of its

decision. Edwards v. State ex rel. Department of Health & Hospitals for Southeast

Louisiana State Hospital at Mandeville, La., 2000- 2420 ( La. App. 1" Cir.

12/ 28/ 01.), 804 So. 2d 886, 888, writ denied sub nom., Edwards v. State ex rel.

Department of Health &. Hospitals for Southeast Louisiana, 2002- 0318 ( La.

4/ 26/ 02), 814 So. 2d 557. Thus, according to the law existing at the time of our

decision herein, which is set forth by the Louisiana Supreme Court in Warren,
7

Borel, and LeBreton, we must conclude that LSA-R.S. 9: 5628( A) governs the

prescriptive periods for plaintiffs' medical malpractice actions. Because plaintiffs'

claims against the radiology defendants were filed nearly six years from the date of

the alleged acts, omission, or neglect, they are prescribed pursuant to LSA-R.S.

9: 5628( A).

Accordingly, the judgment of the trial court, maintaining the exception of

prescription by the radiology defendants and dismissing plaintiffs' claims against

them, will be affirmed.

ANSWER TO APPEAL

Defendants, Dr. Rigby and LAMMICO, filed an answer to the instant appeal

seeking to preserve their right to contest whether a contra non valentern exception

to LSA-R.S. 9: 5628 should be applied herein and whether Dr. Rigby and

LAMMICO are precluded from pleading the fault of potentially negligent parties

dismissed on an exception of prescription in the event these issues were considered

on appeal. In the alternative, defendants ask this court to " disregard their request

for relief in this answer."

Considering our ruling herein, the relief sought in the answer to appeal is

denied as moot.

CONCLUSION

Based on the above and foregoing reasons, the June 27, 2019 judgment of

the trial court is hereby affirmed. The answer to appeal is denied. Costs of this

appeal are assessed to the plaintiffs/appellants, William Cook and Renee Soileau.

JUDGMENT AFFIRMED; ANSWER TO APPEAL DENIED AS
MOOT.

N.