Pamela Fisher v. the Blood Center and Abc Insurance Company

PAMELA FISHER * NO. 2020-CA-0551

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 Tiffany G. Chase
******
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany
G. Chase)

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

COUNSEL FOR PLAINTIFF/APPELLANT

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

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
February 10, 2021

TGC
TFL
EAL

Appellant Pamela Fisher (hereinafter “Ms. Fisher”) seeks review of the trial

court’s June 17, 2020 judgment granting Appellee, The Blood Center’s, exception

of prescription. After consideration of the record before this Court and the

applicable law, we affirm the judgment of the trial court.

Facts and Procedural History

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

Blood Center technician conducted a routine “finger prick” test on Ms. Fisher in

order to obtain a blood sample prior to her blood donation. A few days later Ms.

Fisher began experiencing pain and swelling to her finger. On January 3, 2017, she

presented to her primary care physician complaining of pain and swelling to her

finger and was referred to a hand specialist. On January 4, 2017, the hand specialist

performed surgery on her finger and a second surgery on January 25, 2017.

On December 21, 2017, Ms. Fisher filed a medical review panel request with

the Patient Compensation Fund (hereinafter “the PCF”) alleging negligence by The

Blood Center. In it, Ms. Fisher named “The New Orleans Blood Bank” as the

entity that allegedly provided substandard care. On January 4, 20181, the PCF

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The PCF letter is exhibit “C” of The Blood Center’s “Re-urged Peremptory Exception of
Prescription” and is incorrectly dated January 4, 2017.

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notified Ms. Fisher that ‘“The New Orleans Blood Bank’ named in the petition are

considered not qualified and does not have coverage in the [PCF] under the

provisions of Louisiana Revised Statutes 40:1231.8, et seq.”

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

court, naming The Blood Center as a defendant. Ms. Fisher alleged that she

sustained injuries, while donating blood on December 23, 2016, due to the

negligence of The Blood Center’s technician while performing the finger prick

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

Ms. Fisher’s medical review panel request was against “The New Orleans Blood

Bank” not “The Blood Center.” Thus, it maintained that Ms. Fisher’s petition for

damages was premature because the petition failed to comply with La. R.S.

40:1231.8(A)(1)(a)2 and La. R.S. 40:1231.8(B)(1)(a)(i)3. The parties entered into a

consent judgment on July 2, 2018, maintaining the exception of prematurity and

dismissing Ms. Fisher’s action, without prejudice, until a medical review panel

reviewed the allegations.

Prior to the consent judgment, on June 14, 2018, Ms. Fisher filed a second

medical review panel request with the PCF. In this request she named The Blood

Center as the entity that provided substandard care. On August 23, 2018, Ms.

Fisher amended the medical review panel request asserting that she was unaware

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La. R.S. 40:1231.8(A)(1)(a) provides, in pertinent part:
All 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.
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La. R.S. 40:1231.8(B)(1)(a)(i):
No 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
presented to a medical review panel established pursuant to this Section.

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that The Blood Center engaged in substandard care until she met with an attorney

on November 27, 2017.

In response, The Blood Center filed an exception of prescription on

September 8, 2018, arguing that Ms. Fisher’s medical review panel request was

untimely and prescribed by law. Specifically, The Blood Center maintained that

the medical review panel request was filed June 14, 2018, beyond the one-year

time limitation of the alleged malpractice date of December 23, 2016. Ms. Fisher

opposed the exception of prescription, asserting that she filed a medical review

panel request within one year of discovery of the wrongful act. Alternatively, she

argued that the doctrine of contra non valentem4 applied.

On May 31, 2019, the trial court sustained the exception of prescription,

dismissing Ms. Fisher’s petition for damages with prejudice. The trial court found

that the claim was prescribed on its face and thus, the burden shifted to Ms. Fisher

to demonstrate that the claim had not prescribed. The trial court reasoned that Ms.

Fisher failed to present evidence that the claim had not prescribed and thus,

sustained the exception of prescription. Ms. Fisher appealed.

On February 12, 2020, this Court vacated the judgment of the trial court and

remanded the matter for further proceedings. Fisher v. Blood Ctr., 2019-0846, p. 7

(La.App. 4 Cir. 2/12/20), 292 So.3d 985, 990. This Court found that The Blood

Center failed to meet its burden of proof because the medical review panel request

filed by Ms. Fisher, against The Blood Center, was not properly introduced into

evidence. Id., 2019-0846, p. 7, 292 So.3d at 989. Based upon this finding, this

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“Contra non valentem is a judicially created exception to the general rule of prescription based
on the civilian doctrine of contra non valentem agere nulla currit praescriptio” which suspends
the time limitations, for filing a claim, in four specific instances. Fontenot v. ABC Ins. Co., 1995-
1707, p. 4 (La. 6/7/96), 674 So.2d 960, 963.
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Court pretermitted discussion of the merits of the appeal. Id., 2019-0846, p. 7, 292

So.3d at 990.

On February 14, 2020, The Blood Center filed a “Re-Urged Exception of

Prescription” asserting the same arguments as in its previous exception of

prescription. Ms. Fisher responded with an opposition identical to her opposition to

the first exception of prescription. By judgment dated June 17, 2020, the trial court

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

prejudice. The trial court found that Ms. Fisher had constructive knowledge of the

alleged malpractice and thus, prescription had run by the time she filed her petition

for damages against The Blood Center. This appeal followed.

Standard of Review

This Court’s review of a ruling sustaining an exception of prescription

“varies based on whether evidence was introduced in the trial court at the hearing

on the exception.” Barkerding v. Whittaker, 2018-0415, p. 13 (La.App. 4 Cir.

12/28/18), 263 So.3d 1170, 1180. “When prescription is raised by peremptory

exception, with evidence being introduced at the hearing on the exception, the trial

court’s findings of fact on the issue of prescription are subject to the manifest

error-clearly wrong standard of review.” London Towne Condo Homeowner’s

Ass’n v. London Towne Co., 2006-0401, p. 4 (La. 10/17/06), 939 So.2d 1227,

1231.

“[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

through Dep’t of Transp. & Dev, 617 So.2d 880, 882-83 (La. 1993) (citation

omitted) (internal quotation omitted). As evidence was introduced at the trial on

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The Blood Center’s exception of prescription, a manifest error standard of review

is applicable.

Discussion

In her sole assignment of error, Ms. Fisher argues the trial court erred in

sustaining the exception of prescription and dismissing her petition for damages

with prejudice.

At the trial on an exception of prescription, the mover ordinarily bears the

burden of proof. Carter v. Haygood, 2004-0646, p. 8 (La. 1/19/05), 892 So.2d

1261, 1267. “However, if prescription is evident on the face of the pleadings, the

burden shifts to the plaintiff to show the action has not prescribed.” Id., 2004-0646,

p. 9, 892 So.2d at 1267. The trial court found that Ms. Fisher’s claim was

prescribed on its face. A review of the pleadings demonstrates that Ms. Fisher

donated blood on December 23, 2016, had her first finger surgery on January 4,

2017, and filed a medical review panel request, against The Blood Center, on June

14, 2018. Thus, the burden shifts to the plaintiff and Ms. Fisher is tasked with

demonstrating that her claim had not prescribed.

Ms. Fisher asserts that the three-year time limitation of La. R.S 9:5628 is

applicable to her claim. She maintains that she had until December 23, 2019 to file

a medical review panel request. Therefore, her claim had not prescribed because

she filed her medical review panel request, against The Blood Center, on June 14,

2018, which was within three years of the December 23, 2016 alleged malpractice.

Alternatively, Ms. Fisher maintains that the doctrine of contra non valentem

applies to suspend the running of prescription until discovery of the potential

malpractice or wrongful act. She argues that she did not have actual or constructive

knowledge that the pain and swelling to her finger was related to the finger prick
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test until July 1, 2017, when she accessed her medical records online and learned

of her diagnosis.

Conversely, The Blood Center asserts that Ms. Fisher had knowledge that

the pain and swelling to her finger was the result of the finger prick test on January

4, 2017 when she underwent her first finger surgery. Therefore, according to The

Blood Center, Ms. Fisher’s claim prescribed on January 4, 2018.

La. R.S. 9:5628(A) governs the time limitations applicable to claims in

medical malpractice actions. La. R.S. 9:5628(A) provides:

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… 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.

Thus, La. R.S. 9:5628 sets forth three time limitations: (1) one year from the date

of the wrongful act; (2) one year from the date of discovery of the wrongful act or;

(3) at the latest three years, irrespective of the date of discovery, from the date of

the wrongful act. Borel v. Young, 2007-0419, pp. 6-7 (La. 11/27/07), 989 So.2d 42,

48.

“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.

“Constructive knowledge is whatever notice is enough to excite attention and put

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the injured party on guard and call for inquiry.” Id., 2001-2707, p. 12, 828 So.2d at

510-11. As this Court has previously articulated, under the constructive knowledge

standard,

[T]he plaintiff’s mere apprehension that something may
be wrong is insufficient for prescription to begin running;
the plaintiff’s knowledge must rise to the level of
constructive knowledge: either she knew or should have
known through the exercise of reasonable diligence that
her problem may have been caused by an act of
malpractice. Prescription will not run if it was reasonable
for the plaintiff not to recognize that the condition might
be related to the treatment.

Marino v. Tenet Healthsystem Med. Ctr., 2009-0915, p. 5 (La.App. 4 Cir.

11/24/09), 26 So.3d 297, 300.

In the case sub judice, Ms. Fisher’s finger prick test occurred on December

23, 2016. She presented to her primary care physician on January 3, 2017,

complaining of pain and swelling to her finger, and underwent surgery to her

finger on January 4, 2017. She had a second finger surgery on January 25, 2017.

Ms. Fisher maintains that several days elapsed between the finger prick test and the

onset of pain and swelling to her finger. Thus, she was not immediately alerted that

the finger prick test was the cause of the pain and swelling to her finger. However,

Ms. Fisher acknowledges that prior to the finger prick test she had no pre-existing

conditions affecting her finger. Approximately eleven days elapsed between the

finger prick test and Ms. Fisher’s presentation to her primary care physician

regarding the pain and swelling to her finger. The record does not reveal any

intervening causes affecting Ms. Fisher’s finger, occurring between the date of the

finger prick test and the date Ms. Fisher presented to her primary care physician.

Thus, it would be reasonable to equate the pain to the finger with the recent

activity of a finger prick to that same finger. The pain and swelling to Ms. Fisher’s
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finger provided her with constructive knowledge that a wrongful act occurred

during her blood donation. As such, the three-year time limitation provided for in

La. R.S. 9:5628 is inapplicable, rather Ms. Fisher had one year from the date of

discovery of the wrongful act to file a medical review panel request.

We now turn to Ms. Fisher’s argument regarding the applicability of the

doctrine of contra non valentem. She maintains that the doctrine of contra non

valentem suspended the time limitation of filing her claim until discovery of the

wrongful act. Ms. Fisher asserts that she did not discover any potential wrongful

act until July 1, 2017 when she accessed her medical records and was made aware

of the diagnosis to her finger. Thus, she argues that she had until July 1, 2018 to

file her medical review panel request.

The doctrine of contra non valentem delineates four situations which would

suspend the time limitations outlined in La. R.S. 9:5628, the fourth of which is the

only one implicated in this matter. See Fontenot, 1995-1707, p. 4, 674 So.2d at

963. “The discovery exception embodied in [La. R.S. 9:5628] is a codification of

the fourth category of contra non valentem for cases in which the cause of action is

not immediately knowable. Under this discovery rule, such actions prescribe one

year from the date of discovery of the alleged act, omission or neglect.” In re Med.

Review Panel for Claim of Moses, 2000-2643, p. 8 (La. 5/25/01), 788 So.2d 1173,

1178-79. The discovery rule is further limited by the language of La. R.S. 9:5628

and is inapplicable after three years from the injury causing act, omission or

neglect. See Borel, 2007-0419, p. 29, (La. 11/27/07), 989 So.2d 42, 69, on reh’g

(7/1/08).

We find no merit to Ms. Fisher’s argument that the doctrine of contra non

valentem suspends the time limitations. For contra non valentem to apply, Ms.
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Fisher is required to establish that good cause prevented her from timely filing the

medical review panel request. See Barcia v. Louisiana Med. Malpractice Ins. Co.,

2010-1424, p. 22 (La.App. 4 Cir. 5/25/11), 67 So.3d 659, 672. She filed her initial

medical review panel request on December 21, 2017, although naming the

incorrect entity. Once notified that “The New Orleans Blood Bank” was not a

qualified healthcare provider under the Medical Malpractice Act, Ms. Fisher did

not immediately file a new medical review panel request naming the proper entity.

Instead, she filed a petition for damages against The Blood Center in the trial court.

“[M]ere confusion regarding a party’s correct name…is not a sufficient basis for

good cause.” Norbert v. Loucks, 2001-1229, p. 3 (La. 6/29/01), 791 So.2d 1283,

1285. The fact that Ms. Fisher did not correctly name the proper entity does not

demonstrate good cause for failing to timely file her medical review panel request.

As such, the doctrine of contra non valentem is inapplicable.

Conclusion

Based on the record before this Court, we find the date of discovery of the

wrongful act to be January 3, 2017, the date Ms. Fisher presented to her primary

care physician complaining of pain and swelling to her finger. Suffering from pain

and swelling to her finger within days following the finger prick test was sufficient

to place Ms. Fisher on notice that the condition of her finger was related to her

blood donation at The Blood Center on December 23, 2016. The ensuing pain and

swelling to her finger, which caused her to seek treatment with her primary care

physician, provided Ms. Fisher with constructive knowledge that the finger prick

test was the cause of her symptoms. As such, she had until January 3, 2018 to

initiate a medical review panel request against The Blood Center. Ms. Fisher did

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not file the medical review panel request against The Blood Center until June 4,

2018. Thus, her claim had prescribed.

Decree

For the foregoing reasons, we find the trial court did not err in sustaining

The Blood Center’s exception of prescription and dismissing Ms. Fisher’s petition

for damages with prejudice. The judgment of the trial court is affirmed.

AFFIRMED

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