Daniel Bonnette and Mary Bonnette v. Our Lady of the Lake Hospital, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

DANIEL BONNETTE AND MARY NO. 2022 CW 0633
BONNETTE PAGE 1 of 2

VERSUS

OUR LADY OF THE LAKE AUGUST 9, 2022
HOSPITAL, INC., ET AL

In Re: Our Lady of the Lake Hospital, Inc., applying for

supervisory writs, 19th Judicial District Court,
Parish of East Baton Rouge, No. 713905.

BEFORE: WHIPPLE, C. J., McDONALD, THERIOT, CHUTZ AND PENZATO, JJ.

WRIT GRANTED. The trial court' s June 6, 2022 judgment
which denied the exception of prescription filed by Our Lady of
the Lake Hospital, Inc. is reversed. 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. Constructive knowledge is whatever notice is
enough to excite attention and put the injured party on guard

and call for inquiry. Such notice is tantamount to knowledge or
notice of
everything to which a reasonable inquiry may lead.
Such information or knowledge as ought to reasonably put the

alleged victim on inquiry is sufficient to start the running of
prescription. When a plaintiff has knowledge of facts strongly
suggestive that the untoward condition or result may be the
result of improper treatment, and there is no effort by the
healthcare provider to mislead or cover up information which is
available to plaintiff through
inquiry medical or professional

or legal advice, then the cause of action is reasonably knowable
to plaintiff. Failure to act by a plaintiff for more than one

year under these circumstances is not reasonable. Request for

Medical Review Panel by Wilson v. Whitfield, 2017- 1723 ( La. App.
1st Cir. 5/ 23/ 19), 277 So. 3d 370, 375- 76, writ denied, 2019-
00983 ( La. 10/ 1/ 19), 280 So. 3d 157, writ denied sub nom.,

Andrews v. Berkshire Hathaway Insurance Company, 2019- 01114 ( La.
10/ 8/ 19), 280 So. 3d 591, citing Campo v. Correa, 2001- 2707 ( La.
6/ 21/ 02), 828 So. 2d 502. In this case, Mr. Bonnette was

hospitalized at Our Lady of the Lake Hospital on several

occasions and treated for infection. Mr. Bonnette was aware he
had a " really bad infection," no later than his date of

discharge on May 15, 2017. Our review of the evidence and

testimony leads us to the conclusion that the plaintiffs had
sufficient information to excite attention and call for inquiry
at least by May 15, 2017, and the failure to do so was not

reasonable. The exception of prescription filed by Our Lady of
the Lake Hospital, Inc. is granted, and plaintiffs' claims

against Our Lady of the Lake Hospital, Inc. are dismissed.

JM M
WRC
AHP

Whipple, C. J. and Theriot, J. dissent. A plaintiff' s mere
apprehension that something may be wrong is insufficient to
commence the running or prescription unless the plaintiff knew

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT
2022 CW 0633
PAGE 2 OF 2

or should have known through the exercise of reasonable

diligence that his problem may have been caused by acts of

malpractice. Campo v. Correa, 2001- 2707, p. 12, ( La. 6/ 21/ 02),
828 So. 2d 502, 511. Even if a malpractice victim is aware that
an undesirable condition has developed after medical treatment,

such knowledge does not equate to knowledge of everything to

which inquiry might lead. Campo, 2001- 2707 at p. 15, 828 So. 2d
at 512- 13. Prescription will not run as long as it was

reasonable for the plaintiff not to recognize that the condition
might be treatment related. Campo, 2001- 2707 at p. 12, 828
So. 2d at 511. The ultimate issue is the reasonableness of the

patient' s action or inaction, in light of his education,

intelligence, the severity of symptoms, and the nature of the
defendant' s conduct. Campo, 2001- 2707 at p. 12, 828 So. 2d at

511.

When evidence is considered on the merits of an exception

of prescription and factual determinations are made, a manifest

error standard of review is applied. Mitchell v. Baton Rouge
Orthopedic Clinic, L. L. C., 2021- 00061 ( La. 10/ 10/ 21), 333 So. 3d
368, 373- 74. In this matter, plaintiff and his wife were both

called to testify at the hearing. Based on our reading of their
testimony and other evidence admitted, we do not find that the
trial court was manifestly erroneous in crediting plaintiffs'

testimony that they were being told that infections were common

following an open fracture and that they only became aware that
Mr. Bonnette may have been the victim of medical malpractice

after his surgery
in Houston. Finding that plaintiffs delay in
filing suit was not negligent or unreasonable, we dissent and

would deny the writ.

COURT OF APPEAL, FIRST CIRCUIT

U•- O
DEPUTY CLERK OF COURT
FOR THE COURT