Neville Kirt; Alvin Kirt; And Lamont Kirt, Individually and on Behalf of Elaine Kirt v. Rebecca C. Metzinger, M.D.; Theodore C. Strickland, III, M.D.; Administrators of the Tulane Educational Fund D/B/A Tulane; Pauline Taquino, Crna; Gayle Martin, Crna; Parish Anesthesia Associates, Ltd, a Professional Medical Corporation

NEVILLE KIRT; ALVIN KIRT; * NO. 2024-CA-0273
AND LAMONT KIRT,
INDIVIDUALLY AND ON *
BEHALF OF ELAINE KIRT, COURT OF APPEAL
DECEASED *
FOURTH CIRCUIT
VERSUS *
STATE OF LOUISIANA
REBECCA C. METZINGER, *******
M.D.; THEODORE C.
STRICKLAND, III, M.D.;
ADMINISTRATORS OF THE
TULANE EDUCATIONAL
FUND D/B/A TULANE;
PAULINE TAQUINO, CRNA;
GAYLE MARTIN, CRNA;
PARISH ANESTHESIA
ASSOCIATES, LTD, A
PROFESSIONAL MEDICAL
CORPORATION

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2013-07873, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Karen K. Herman
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge
Karen K. Herman)

Hugo L. Chanez
Jeffrey A. Mitchell
THE COCHRAN FIRM
3850 N. Causeway Blvd., Suite 1500
Metairie, LA 70002

COUNSEL FOR PLAINTIFFS/APPELLANTS

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

Benjamin J. Biller
SCHROEDER AND TRAHAN
One Galleria Blvd., Suite 700
Metairie, LA 70001

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED
NOVEMBER 4, 2024

KKH
SCJ
PAB
This is a medical malpractice suit. Appellants/Plaintiffs, Neville Kirt, Alvin

Kirt, and Lamont Kirt (“Plaintiffs”), the children of decedent, Elaine Kirt (“Ms.

Kirt”), appeal the trial court judgment, dated December 20, 2023, which granted an

exception of prescription filed by Appellees/Defendants, Pauline Taquino, CRNA

and Parish Anesthesia Associates, LTD, and dismissed Plaintiffs’ claims with

prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Kirt was scheduled to undergo eye surgery on April 8, 2010, and due to

complications that developed after the administration of anesthesia, she died on

September 28, 2010.

As a result, on September 23, 2011, Plaintiffs filed a request for formation of

a medical review panel with the Division of Administration naming three

defendants: Rebecca C. Metzinger, M.D., Theodore C. Strickland, M.D., and

Tulane University Hospital & Clinic (“TUHC”). The request for medical review

panel provides that Dr. Metzinger was the attending physician and Dr. Strickland

was the anesthesiologist.

1

In the request for formation of medical review panel, Plaintiffs alleged that

Ms. Kirt was scheduled for corneal transplant surgery at TUHC and that sometime

after Dr. Metzinger performed a “retrobulbar block”1 in preparation of the

procedure Ms. Kirt suffered a “PEA” (Pulseless Electrical Activity) and “had no

pulse and was asystole” (a cardiac flat line).2 Ms. Kirt was subsequently intubated

by Dr. Strickland. Thereafter, Ms. Kirt experienced multiple PEAs, requiring

several “code blue[s]” re-intubation, and a tracheostomy. Ms. Kirt was transferred

to the ICU and died approximately five months later. 3

Plaintiffs alleged that Ms. Kirt’s PEA was directly related to the procedure

and the medical care provided. Plaintiffs further allege the medical team failed to

recognize that Ms. Kirt was not receiving enough blood and oxygen to her brain

and that the defendants failed to “timely respond to Ms. Kirt’s crisis” and intubate

her. Plaintiffs alleged that the lack of perfusion4 caused “irreversible damage” from

which Ms. Kirt never recovered and died due to the alleged malpractice.

On October 17, 2011, Plaintiffs amended the original request for formation

of a medical review panel to name Pauline A. Taquino, CRNA (“Taquino”) and an

1The record indicates that retrobulbar block is used to numb the eye and prevent movement of

the eye muscles.

2 The request provided in part:

Dr. Metzinger, in preparation for the procedure performed a retrobulbar block.
The medical records reveal that the procedure began at 1220. Ms. Kirt's last vitals
were recorded at 1235. At some point between 1235 and 1247 Ms. Kirt suffered a
PEA (PEA #1). She had no pulse and was asystole. At 1247 Dr. Theodore C.
Strickland was called in to intubate Ms. Kirt. Subsequently, Ms. Kirt suffered
three (3) more PEAs each requiring a code blue and re-intubation. Due to the
recurrent intubations a tracheostomy was performed. Additionally, following PEA
#1, Ms. Kirt received SLED; causing acute renal failure. Resultantly, on
September 28, 2010, due to defendant's acts and omissions, Ms. Kirt expired.

3 The record shows that after the ICU she was transferred to Kindred Hospital, a facility that

provides long-term acute care.

4 Brain perfusion refers to the delivery of blood and oxygen to the brain.

2

“Unidentifiable CRNA” as additional defendants. The “unidentifiable CRNA” was

later identified to be Gayle Martin, CRNA (“Martin”). Plaintiff alleged that “while

Ms. Kirt was undergoing her corneal transplant” Taquino and Martin “failed to

monitor Ms. Kirt's vitals” and that the “failure to monitor her vitals led to a delay

in realizing that the patient was in distress, ultimately a delay in the response time

to Ms. Kirt’s crisis.”

On November 17, 2011, Plaintiffs filed a second amended request to assert a

malpractice claim against Parish Anesthesia of Tulane, LLC (“Parish Anesthesia”),

who Plaintiffs alleged was the employer of Martin.

On August 6, 2012, Plaintiffs deposed Taquino, wherein Plaintiffs alleged

they first discovered the extent of Taquino’s negligence and that she was employed

by Parish Anesthesia. In her deposition, Taquino testified that she assumed care of

Ms. Kirt at approximately 12:28 p.m. from Martin. She testified that Ms. Kirt

complained of hip pain and she administered a dose of Alfentanil to help with the

pain. Taquino testified that she administered the medicine intravenously. Taquino

stated she was unaware that several minutes prior Ms. Kirt had been administered

Propofol. Taquino testified that shortly after administering Alfentanil, Ms. Kirt

stopped responding. Plaintiffs allege that none of this information was contained in

the illegible aesthesia record.

On May 22, 2013, the medical review panel unanimously found that there

was no evidence to support the conclusion that the defendants had failed to meet

the applicable standard of care as alleged in Plaintiffs’ request.5

5 The written reasons of the medical review panel, stated in part:

Based upon the information provided, both Dr. Metzinger and Dr.
Strickland provided the necessary preoperative work-up, gave appropriate orders

3

On August 20, 2013, Plaintiffs filed a petition for damages against all the

defendants named in the medical review panel proceedings. The petition contains

the following relevant factual allegations as it relates to Parish Anesthesia and

Taquino:

8.
On or about April 8, 2010, at 11:49, Ms. Kirt - awake at the
time - was transported to the operating room. At 11:50 agents of
Parish Anesthesia dilated Ms. Kirt with Allocaine 1%, Mydfrin, 2.5%,
Mydriaeyl, 1% and 2 mg along with administering Valium and
Mannitol, 12.5 grams, in preparation for the retrobulbar block. Upon
information and belief a retrobulbar block 3 is painful, so just prior to
Dr. Metzinger applying the block, CRNA Martin administered to Ms.
Kirt 500 micrograms of Alfentanil, in incremental doses along with
ten mg x 2 of Propofol.
9.
At 11:59 an “Accu chek” was performed, with a reading of 302.
At 12:00 Ms. Kirt was administered the following: Oxygen at 2/10,
Fentanyl 200 meg, Propofol l0 mg. Ms. Kirt’s vitals are recorded as:
113/61, 70 spontaneous ventilations, EKG with a-fib, sinus rhythm,
sats 100%. Lactated Ringers IV 500 cc is begun at this time.
10.
At 12:15 a Nasal Cannula is placed on Ms. Kirt. At 12:20 Ms.
Kirt’s vitals are recorded as: 138/60, 76.
11.
At 12:25 Dr. Metzinger performed the Retrobulbar Block with
Lidocaine and Marcaine upon Ms. Kirt.
12.

prior to admission, and obtained informed consent. They were not involved in the
administration of anesthesia or medications. Dr. Metzinger properly administered
the retrobulbar block.

CRNA Martin properly administered the Alfentanil and Propofol, closely
monitored Ms. Kirt, and then transferred care to CRNA Taquino.

CRNA Taquino administered Alfentanil 250 mg shortly after assuming
care of Ms. Kirt.

Under the circumstances, this was not a breach of the standard of care.
Once the event occurred, she responded quickly and appropriately, including
calling for Dr. Strickland.

The medical records reflect that the hospital nurses and staff timely
evaluated Ms. Kirt, followed and timely implemented the physicians’ orders, and
closely monitored Ms. Kirt, reporting their findings to the physicians.

4

Ms. Kirt’s medical records - from the incident - evidence a 10
minute gap, where her vitals go unrecorded
13.
In a deposition during the medical review panel, CRNA Martin,
“There is a 10-minute period in the anesthesia record in which there is
no recordation of the patient’s blood pressure or pulse. That 10 minute
period was when the patient care was turned over to CRNA Taquino.”
14.
At 12:30 Ms. Kirt’s vitals were recorded as: 130/60, 68, sats
100%. At 12:35 Ms. Kirt is noted to be receiving oxygen per nasal
cannula, sat 100%, 120/60,64, EKG a-fib/sinus rhythm.
15.
At 12:35 CRNA Taquino administered 250 meg of Alfentanil,
via IV push, upon information and belief because the patient - Elaine
Kirt - said her hip was hurting.
16.
In a deposition during the medical review panel, CRNA
Taquino asserted that, “Alfentanil doesn’t have to be given in a
particular manner. The drug was not given in incremental doses by me
because the patient was on monitors. I did not know whether or not
the patient had received Propofol earlier. It would not be especially
important to know that. From 12:40 until 1:00 - a 15 minute period -1
did not record any vital signs on the anesthesia graph.”
17.
Upon information and belief at 12:42 - less than 10 minutes
after administration of the Alfentanil in a non-incremental dosage -
Elaine Kirt’s conversation slowed and she quickly became non-
responsive.
18.
Upon information and belief, CRNA Taquino “called the front
for a stat.” She notified the staff that the patient was not responding.
Dr. Strickland was called, Epi was administered to Ms. Kirt, as well as
Lidocaine and Calcium. CRNA Taquino alerted R.N. she needed her
help and put a nasal airway in the patient’s nose.
19.
At 12:51 Dr. Strickland placed an endotracheal tube in Ms.
Kirt’s airway. At 12:55-1:00 the patient started showing V-tach
rhythm. At 13:40 the patient was admitted to the MICU of Tulane.
20.
Upon information and belief, the non-titrated second
administering of Alfentanil caused Ms. Kirt to “code” at 12:42 on
April 8, 2010. This first code set off a domino effect, compromising
Ms. Kirt, so as to place her at risk for the multiple codes which she
suffered over the next 173 days, as did delays in treatment and delays
in placement within the proper units, culminating in Ms. Kirt’s death
on September 28, 2010.

5

Based on the foregoing, Plaintiffs alleged that Taquino failed to properly

administer drugs to Ms. Kirt; failed to properly document Ms. Kirt’s chart; failed

to read Ms. Kirt’s chart prior to administering drugs; failed to fully understand the

drugs she was administering to Ms. Kirt; and failed to communicate with her

fellow CRNA. Plaintiffs further alleged that Parish Anesthesia was responsible for

Taquino’s negligence as her employer.

On November 20, 2015, the trial court granted a motion for summary

judgment in favor of Metzinger and dismissed Plaintiff’s claims against her with

prejudice. On December 4, 2015, the trial court also granted a motion for summary

judgment in favor of Strickland and TUHC, dismissing them with prejudice.

Thereafter, on December 15 2015, Taquino, Martin, and Parish Anesthesia

filed an exception of prescription based on two grounds: Plaintiffs’ entire medical

review panel request was invalid and without effect as to the suspension of

prescription under La. R.S. 40:1231.8(A)(1)(e) because they failed to pay the final

$100 filing fee; and in the alternative, that Plaintiffs’ claims against them were

prescribed under La. R.S. 9:5628(A) and La. C.C. arts. 2315.2(B) and 2349 as a

result of the dismissal of all joint tortfeasors who had timely been named in

Plaintiffs’ request for the formation of a medical review panel.

In opposition, Plaintiffs argued the medical review panel proceeding

involved several requests for review, including separate requests for Taquino and

Parish Anesthesia. The filing fees for those requests were timely paid. While not

paying the $100 filing fee to add Martin may have invalidated that particular claim,

it should not retroactively invalidate claims against Taquino and Parish Anesthesia.

Plaintiffs also argued that the alternative argument lacks merit as to Taquino and

Parish Anesthesia because those claims were filed within one year of the discovery

6

of Taquino’s negligence and within three years of her malpractice, making them

timely under La. R.S. 9:5628(A).6

The exception of prescription came before the trial court on January 29,

2016, and was taken under advisement. On November 15, 2017, the trial court

issued a judgment and written reasons granting the exception of prescription on the

filing fee issue. Because the judgment lacked decretal language, the trial court

issued an amended judgment on October 24, 2018, which contained the appropriate

decretal language. Plaintiffs thereafter appealed.

On June 19, 2019, this Court affirmed the trial court decision in granting the

exception, finding that Plaintiffs’ failure to pay the complete filing fee rendered the

entire panel request invalid. Kirt v. Metzinger (Kirt I), 2019-0180, p. 7 (La. App. 4

Cir. 6/19/19), 274 So.3d 1271, 1275.

Plaintiffs applied for writs with the Louisiana Supreme Court. On April 3,

2020, the Louisiana Supreme Court granted writs and reversed in part. The

Louisiana Supreme Court found that the failure to pay a filing fee for adding a

defendant to a pending medical review panel proceeding only invalidated the

claims against the added defendant, not all named defendants. Kirt v. Metzinger

(Kirt II), 2019-1162, pp. 9-10 (La. 4/3/20), 341 So.3d 1211, 1217. Thus, the

Louisiana Supreme Court found that although Plaintiffs timely paid the filing fee

as to Taquino and Parish Anesthesia, it was not timely paid as to Martin. As a

result, the Louisiana Supreme Court affirmed the exception as to Martin and

reversed as to Taquino and Parish Anesthesia. The Louisiana Supreme Court also

remanded the case to trial court to consider and dispose of the remaining

6 This summary of the parties arguments was set forth in Kirt v. Metzinger (Kirt II) 2019-1162,

pp. 4-5 (La. 4/3/20), 341 So.3d 1211, 1213–14.

7

prescription argument, i.e., that the timely claims filed against the dismissed

defendants did not suspend prescription against Taquino and Parish as the

dismissed defendants were no longer joint/solidary obligors. Kirt II, 2019-1162, p.

14, 341 So.3d at 1219 (“The matter is remanded to the trial court for consideration

and disposition of the alternative basis urged in support of the exception of

prescription”).

On August 17, 2020, a scheduling conference was held to discuss the need

for a ruling on the alternative grounds of prescription. In October 2020, the parties

jointly provided the trial court with all documents and materials relevant to the

pending portion of the exception of prescription.

After receiving additional briefing from the parties in February 2021, the

trial court took the matter under advisement. On June 21, 2022, the trial court

issued an amended judgment and reasons, denying the exception of prescription as

to Taquino and Parish Anesthesia, which provided in part:

Considering the judgment of the Supreme Court, this court is
vacating its judgment of November 15, 2017 and reasons for
judgment in part on the exception of prescription relative to Pauline
A. Taquino and Parish Anesthesia of Tulane, LLC. The medical
malpractice claim against these named defendants are maintained and
should go forward as ordered by the Louisiana Supreme Court order
and reasons adopted herein. In all other respects, this court’s judgment
of November 15, 2017 and reasons for judgment are maintained. (See:
Supreme Court Judgment-adopted herein).

Thereafter, Defendants filed writs with this Court. On August 18, 2022, this

Court granted Defendants’ writ application, finding “the trial court failed to

comply with the Louisiana Supreme Court’s instructions set forth in Kirt [II].”

This Court also remanded the matter “to the trial court to conduct an evidentiary

hearing on Relators-Defendants’ alternative argument on the exception of the

8

prescription.” Kirt v. Metzinger (Kirt III), 2022-0487, p. 3 (La. App. 4 Cir.

8/18/22), 346 So.3d 816, 817-18.

On December 16, 2022, the trial court heard the exception and decided to

“hold this over” until trial and rule on it then. The trial court executed a judgment

in this regard on December 19, 2022.

Defendants again sought writs with this Court. This Court granted the writ,

vacated the trial court’s judgment, and remanded with instructions. Kirt v.

Metzinger, 2022-0855 (La. App. 4 Cir. 2/2/23) (Kirt IV). This Court stated:

We find that the district court abused its discretion when it chose to
bind this matter over for trial. Therefore, we grant Relators’ writ
application, vacate the district court’s ruling, and remand this matter
to the district court to comply with the directive issued by the
Supreme Court in Kirt II, i.e., to reach a disposition concerning
Relator’s alternative argument on their exception of prescription.

Kirt IV, 2022-0855, p. 4, 357 So.3d at 495.

Again on remand, the trial court heard the exception of prescription on

December 15, 2023 and granted the exception. The trial court stated:

This case is going back up and down like an elevator. I read
through this case very carefully and obviously read through the Fourth
Circuit’s decision very carefully. But I think it is prescribed on its
face, so I am going to grant the exception.

On December 20, 2023, the trial court executed judgment to that effect and

dismissed Plaintiffs’ action against Taquino and Parish Anesthesia with prejudice.7

Plaintiffs timely appeal followed.

7 The judgment provided, in part:

IT IS ORDERED, ADJUDGED AND DECREED that the Peremptory
Exception of Prescription is SUSTAINED in favor of Defendants CRNA Taquino
and Parish Anesthesia and against Plaintiffs the Kirts.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
Plaintiffs above numbered and captioned action is DISMISSED WITH
PREJUDICE.

9

APPLICABLE LAW

Standard of Review and Burden of Proof

“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.” Barkerding v. Whittaker, 2018-0415, pp. 13-14 (La. App. 4 Cir.

12/28/18), 263 So.3d 1170, 1180 (quoting In re Med. Review Panel of Hurst, 2016-

0934, p. 4 (La. App. 4 Cir. 5/3/17), 220 So.3d 121, 125-26). “The relevant issue in

a manifest error inquiry is not whether the finder of fact was right or wrong, but

whether its decision was a reasonable one.” Hurst, 2016-0934, p. 4, 220 So.3d at

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

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

“When no evidence is introduced, the de novo standard applies.” Denoux v.

Vessel Mgmt. Servs., Inc., 2007-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88

(observing that “[i]n the absence of evidence, the exception of prescription must be

decided on the facts alleged in the petition, which are accepted as true”). As such,

“the judgment is reviewed simply to determine whether the trial court’s decision

was legally correct.” Wells Fargo Fin. Louisiana, Inc. v. Galloway, 2017-0413, p.

8 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 800 (citing Arton v. Tedesco, 2014-

1281, p. 3 (La. App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128).8

This Court in Hurst, 2016-0934, p. 5, 220 So.3d at 126, outlined the burden

on an exception of prescription in a medical malpractice action as follows:
8 There were exhibits attached to the exception, opposition, and briefs relating to the exception of

prescription; however, it does not appear from the December 15, 2023 hearing that the exhibits
were officially offered into evidence. Nevertheless, evidence was specifically introduced at the
original hearing on the exception on January 29, 2016 and both parties refer to evidence in their
briefs.

10

“Ordinarily, the movant bears the burden of proof on the trial
of the peremptory exception of prescription.” Ferguson v. Sugar,
[20]05–0921, [20]05-0922 (La. App. 4 Cir. 6/25/08), 988 So.2d 816,
824. The burden remains with the movant where the plaintiff’s
petition makes “a prima facie showing” that the suit was filed within
the delays set forth in La. R.S. 9:5628. Id. “A petition should not be
found prescribed on its face if it is brought within one year of the date
of discovery and facts alleged with particularity in the petition show
that the patient was unaware of the malpractice prior to the alleged
date of discovery, and the delay in filing suit was not due to willful,
negligent, or unreasonable action of the [plaintiff].” Id. (citing Campo
v. Correa, [20]01-2707, p. 9 (La. 6/21/02), 828 So.2d 502, 509) []. If,
however, the petition on its face reveals that prescription has run, the
burden shifts to the plaintiff to show that his action has not prescribed.
Id.9

Prescription and Suspension for Louisiana Medical Malpractice Actions

The special prescriptive period governing medical malpractice actions in

Louisiana is set forth in La. R.S. 9:5628(A), which 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 or tissue bank
as defined in R.S. 40:1231.1(A), 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.

The statute thus provides “two prescriptive limits within which to bring a

medical malpractice action, 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

9 This Court has applied “the burden-shifting jurisprudence … to a request for a medical review

panel.” Primus v. Touro Infirmary, 2005-662, p. 4 (La. App. 4 Cir. 1/25/06), 925 So.2d. In other
words, this Court has looked solely to the allegations contained in the request for medical review
panel to determine if the plaintiffs’ claims “had prescribed on the face of their request” and
found that “the burden shift to [the plaintiffs] to show that their claims had not prescribed.” Id.
at p. 5, 925 So.2d at 612; see also Granier v. Lexington Ins. Co., 2019-0657, pp. 4-5 (La. App. 4
Cir. 12/27/19), 288 So.3d 268, 272.

11

alleged act, omission or neglect.” Ferguson v. Sugar, 2005-0921, p. 9 (La. App. 4

Cir. 6/25/08), 988 So.2d 816, 824 (citing Campo v. Correa, 2001–2707, p. 9 (La.

6/21/02), 828 So.2d 502, 509); see also Carter v. Haygood, 2004-0646, p. 10 (La.

1/19/05), 892 So.2d 1261, 1268.

This case involves both claims for wrongful death and survival. “Although

survival action claims are governed by La. R.S. 9:5628(A), wrongful death claims

are governed by the one-year period applicable to delictual actions set forth in La.

C.C. art. 3492.”10 Med. Rev. Complaint by Downing, 2018-1027, pp. 6-7 (La. App.

4 Cir. 5/8/19), 272 So.3d 55, 59 (citing Taylor v. Giddens, 618 So.2d 834, 842 (La.

1993)). 11 Delictual actions have a prescriptive period of one year which begins to

10 La. C.C. art. 3492 was repealed by Acts 2024, No. 423, § 2. La. C.C. art. 3493.1, effective
July 1, 2024, now provides a two year prescriptive period for delictual actions. It states:

Delictual actions are subject to a liberative prescription of two years. This
prescription commences to run from the day that injury or damage is sustained. It
does not run against minors or interdicts in actions involving permanent disability
and brought pursuant to the Louisiana Products Liability Act or state law
governing product liability actions in effect at the time of the injury or damage.

At the time Plaintiffs’ medical malpractice claim arose, La. C.C. art. 3492 was still in effect.
11 The Louisiana Supreme Court in Taylor explained:

Although both actions arise from a common tort, survival and wrongful death
actions are separate and distinct. Guidry v. Theriot, 377 So.2d 319 (La.1979).
Each right arises at a different time and addresses itself to the recovery of
damages for totally different injuries and losses. Id. The survival action comes
into existence simultaneously with the existence of the tort and is transmitted to
beneficiaries upon the victim's death and permits recovery only for the damages
suffered by the victim from the time of injury to the moment of death. Id. It is in
the nature of a succession right. Comment, Wrongful Death: Prescription?
Peremption? Confusion! 39 La.L.Rev. 1239, 1249 (1979). On the other hand, the
wrongful death action does not arise until the victim dies and it compensates the
beneficiaries for their own injuries which they suffer from the moment of the
victim’s death and thereafter. Guidry v. Theriot, supra. Wrongful death damages
compensate beneficiaries for their own injuries. 39 La.L.Rev. 1239, supra at
1249.

Taylor, 618 So.2d at 840.

12

run from the date the injury or damage is sustained. La. C.C. art. 3492.12 The

“plaintiffs’ injury in a wrongful death action occurs when the victim dies” and thus

a wrongful death action arises on the “date of the victim’s death.” Walls v. Am.

Optical Corp., 1998-0455, p. 9 (La. 9/8/99), 740 So.2d 1262, 1270 (citing Taylor,

618 So.2d at 840). “Wrongful death claims, nonetheless, ‘continue to be governed

and procedurally controlled by the provisions of the Act [].’” Med. Rev. Complaint

by Downing, 2018-1027, p. 7, 272 So.3d at 59 (quoting Taylor, 618 So.2d at 841).

Another pertinent provision is La. R.S. 40:1231.8(A)(1)(a), which provides

when a medical review panel is timely confected and for the suspension of

prescription. Prior to filing a lawsuit against a qualified health provider, the

plaintiff must first file a complaint with the medial review panel. Med. Rev.

Complaint by Downing, 2018-1027, p. 7, 272 So.3d at 59; La. R.S.

40:1231.8(A)(1)(a). The filing of the request for a medical review panel suspends

prescription against all parties named in the complaint and all joint and solidary

obligors until ninety days following notification of the opinion to plaintiff. See

Santiago v. Tulane Univ. Hosp. & Clinic, 2012-1095, p. 8 (La. App. 4 Cir.

4/24/13), 115 So.3d 675, 681.

La. R.S. 40:1231.8(A)(2)(a) states:

The filing of the request for a review of a claim shall suspend
the time within which suit must be instituted, in accordance with this
Part, until ninety days following notification, by certified mail, as
provided in Subsection J of this Section, to the claimant or his
attorney of the issuance of the opinion by the medical review panel, in
the case of those health care providers covered by this Part, or in the
case of a health care provider against whom a claim has been filed
under the provisions of this Part, but who has not qualified under this
Part, until ninety days following notification by certified mail to the
claimant or his attorney by the board that the health care provider is
not covered by this Part. The filing of a request for review of a

12 See n. 10.

13

claim shall suspend the running of prescription against all joint
and solidary obligors, and all joint tortfeasors, including but not
limited to health care providers, both qualified and not qualified,
to the same extent that prescription is suspended against the party
or parties that are the subject of the request for review. Filing a
request for review of a malpractice claim as required by this Section
with any agency or entity other than the division of administration
shall not suspend or interrupt the running of prescription. All requests
for review of a malpractice claim identifying additional health care
providers shall also be filed with the division of administration.

(emphasis added).

Additionally, “[i]t is well-settled that where no liability is found on the part

of a timely sued alleged tortfeasor, prescription will not be interrupted or

suspended as to another tortfeasor, who is not timely sued, since no joint or

solidary obligation exists.” Ferrara v. Starmed Staffing, LP, 2010-0589, pp. 5-6

(La. App. 4 Cir. 10/6/10), 50 So.3d 861, 866, writ denied sub nom. Ferrara v.

Starmed Staffing, LP., 2010-2484 (La. 2/4/11), 57 So.3d 311 (citing Renfroe v.

State of Louisiana, Dep't of Transp. and Dev., 2001–1646, p. 4 (La. 2/26/02), 809

So.2d 947, 950).

Contra Non Valentem / Discovery Rule

To “soften the occasional harshness of prescriptive statutes, our 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.” Med. Rev. Panel Proc. for Timpton v. Touro

Infirmary, 2020-0522, p. 7 (La. App. 4 Cir. 2/10/21), 313 So.3d 1022, 1028–29

(quoting Carter, 2004-0646, p. 11, 892 So.2d at 1268). “Contra non valentem is a

Louisiana jurisprudential doctrine under which prescription may be suspended.” Id.

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, the

14

“discovery rule,” is the one implicated in this matter. Fisher v. Blood Ctr., 2020-

0551, p. 8 (La. App. 4 Cir. 2/10/21), 313 So.3d 1275, 1281 (citing Fontenot v. ABC

Ins. Co., 1995-1707, p. 4 (La. 6/7/96), 674 So.2d 960, 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.” Id. (quoting 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.” Id. (citing Borel v. Young, 2007-0419, p. 29, (La. 11/27/07), 989 So.2d

42, 69).

“Prescription begins ‘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.’” In re Med. Rev. Panel of Heath, 2021-01367, p. 5 (La. 6/29/22), 345 So.3d

992, 996 (quoting Campo, 2001-2707, pp. 11-12, 828 So.2d at 510). “Constructive

knowledge is ‘whatever notice is enough to excite attention and put the injured

person on guard and call for inquiry.’” Id. (quoting Campo, 2001-2707, pp. 11-12,

828 So.2d at 510-11). “A plaintiff is then imputed with whatever knowledge a

reasonable inquiry or investigation would reveal.” Id.

DISCUSSION

On appeal, Plaintiffs argue that the trial court erred when it refused to apply

the discovery rule to their claims against Taquino and Parish Anesthesia. Plaintiffs

argue that the cause of action against Taquino and Parish Anesthesia could not

have been discovered until Taquino’s deposition in August 6, 2012, when they first

15

learned information Ms. Kirt was overmedicated with Alfentanil by Taquino and

that Taquino was employed by Parish Anesthesia because this information was not

discernable from the medical records. Plaintiffs thus contend that the October 17,

2011 claim against Taquino and the November 17, 2011 claim against Parish

Anesthesia were within three years of the malpractice and within one year of when

they discovered their cause of action.

However, Taquino and Parish Anesthesia argue that the trial court properly

granted the exception of prescription. They contend that Plaintiffs’ claim against

them are prescribed on its face because the medical review panel requests as to

Taquino and Parish Anesthesia were filed over one year from the April 8, 2010

malpractice and over one year from the September 28, 2020 death of Ms. Kirt.

Taquino and Parish Anesthesia further argue Plaintiffs’ claims against them

are prescribed as a result of the dismissal of all the joint obligors who had been

timely named. They noted that while the claims against Metzinger, Strickland, and

TUHC were filed on September 23, 2011, those defendants were found free from

fault and dismissed by summary judgment. Taquino and Parish Anesthesia thus

argue that once the timely named defendants were dismissed the suspensive effect

of prescription ceased as to Taquino and Parish Anesthesia because there was no

joint or solidary obligation.

Taquino and Parish Anesthesia also claim the doctrine of contra non

valentum does not save Plaintiffs’ claims. They note that Plaintiffs’ panel request

stated Ms. Kirt’s complications arose during her anesthetic course, resulting in her

eventual death, thus Plaintiffs had knowledge that her death might have been

related to improper medical treatment. They further argue Plaintiffs have no basis

to assert a delay in the discovery of malpractice.

16

Taquino and Parish Anesthesia’s arguments are persuasive.

As stated above, while the exceptor generally bears the burden of proof on

trial of the peremptory exception of prescription, where a petition reveals on its

face that prescription has run, the burden shifts to the plaintiff to show that his

action has not prescribed. Primus v. Touro Infirmary, 2005-662, p. 2 (La. App. 4

Cir. 1/25/06), 925 So.2d 609, 610 (citing SS v. State, Dept. of Social Services,

2002-0831, pp. 6-7 (La.12/4/02), 831 So.2d 926, 931; Mixon v. Cembell Industries,

Inc., 2002-0804, p. 2 (La. App. 4 Cir. 9/18/02), 828 So.2d 660, 662).

This Court also found that where a medical review panel complaint “sets

forth no ‘facts alleged with particularity ... to show that [a plaintiff] was unaware

of the malpractice prior to the alleged date of discovery’ ... [and the] complaint was

filed more than one year after the date of the alleged malpractice, [a] complaint, on

its face, is prescribed [and] the burden shift[s] to [the plaintiff] to show that [the]

action is not prescribed.” Granier v. Lexington Ins. Co., 2019-0657, p. 5 (La. App.

4 Cir. 12/27/19), 288 So.3d 268, 272 (alterations in original) (quoting In re Med.

Rev. Panel of Hurst, 2016-0934, p. 6, 220 So.3d at 126).

Plaintiffs’ survival action began to run from the date of malpractice (April 8,

2010) or date of discovery of negligence (according to Plaintiffs’ when Taquino

was deposed on August 6, 2012), with the three year limitation of the date of the

malpractice. Plaintiffs’ wrongful death action began to run at Ms. Kirt’s death

(September, 28, 2010). Thus, Plaintiffs’ wrongful death claim prescribed on

September 28, 2011. Plaintiffs’ survival action prescribed on April 8, 2011 or

August 6, 2013, a year from the date they alleged they discovered malpractice of

which they were previously unaware.

17

The medical review panel request as to Taquino was filed on October 17,

2011 and the request as to Parish Anesthesia was filed on November 17, 2011. The

wrongful death action of Plaintiffs is prescribed on its face as it was not filed

within a year of Ms. Kirt’s death and Plaintiffs do not dispute that they were aware

of the date Ms. Kirt had died.13 See Carter v. Ochsner Clinic Found., 2007-889, p.

6 (La. App. 5 Cir. 3/11/08), 978 So.2d 562, 565 (stating that “[i]n a malpractice

case in which the victim of the alleged malpractice dies, the damage resulting from

the alleged malpractice is readily apparent”).

Likewise, Plaintiffs’ survival action is prescribed on its face. The requests

for medical review against Taquino and Parish Anesthesia were filed over a year

after the date of surgery and the alleged malpractice. Additionally, the requests for

medical review panel did not allege any particularized facts that indicated that

Plaintiffs were not aware of Taquino and Parish Anesthesia’s negligence prior to

the discovery thereof or an explanation as to why they were untimely added.14 See

Granier, 2019-0657, p. 5, 288 So.3d at 272 (finding that when the request for

review of a physician’s treatment occurred years after treatment and the request

“set[] forth no ‘particularized’ facts which demonstrate[d] the date of the plaintiffs’

discovery of the alleged malpractice or any explanation as to why [the doctor] was

being added as a defendant at such a late date,” the plaintiffs’ claim on its face was

untimely and the “burden shifted to plaintiffs to show that it had not prescribed”);

13 In fact, the petition for damages alleges “[f]rom April 8, 2010, until September 28, 2010,”

Plaintiffs “collectively maintained vigil at their mother’s bedside, until her death.”

14 Although the exception addresses the untimeliness of the medical review panel complaint, and

thus the facts alleged in the post-panel petition are arguably not relevant, the petition for
damages likewise does not specifically allege that delayed date of discovery nor does it detail
how or why Plaintiffs were unaware Taquino and Parish Anesthesia’s malpractice prior to the
deposition. Notably, the petition was filed after Taquino was deposed.

18

see also Hurst, 2016-0934, p. 6, 220 So.3d at 126 (finding that where the medical

review panel complaint failed to set forth facts alleged with particularity to show

that the patient was unaware of the malpractice prior to the alleged date of

discovery, the burden shifted to the patient to show why his claims are not

prescribed).15 Accordingly, the burden shifts to Plaintiffs to establish their claims

had not prescribed. As discussed herein, Plaintiffs cannot meet this burden as they

cannot rely on the suspension of prescription based on timely named solidary

obligors nor the application of the doctrine of contra non valentem.

As noted earlier, Louisiana jurisprudence has found that “where no liability

is found on the part of a timely sued alleged tortfeasor, prescription will not be

interrupted or suspended as to another tortfeasor, who is not timely sued, since no

joint or solidary obligation exists.” Ferrara, 2010-0589, pp. 5-6, 50 So.3d at 866.

In Granier, the plaintiffs, the patient and her husband, filed a claim with the

Division of Administration seeking a medical review panel to investigate her

treatment with Dr. Vernon Carrie on September 28, 2010 related to a September

29, 2009 surgical procedure, wherein the patient’s bowel was injured.

Approximately, fifteen months later, on December 20, 2011, the plaintiffs

filed an amended medical malpractice complaint naming Dr. Steven Jones,

claiming he examined the patient following the surgery on October 2, 2009, and

diagnosed a post-operative ileus and recommended GI rest and failed to diagnose

her with a perforated bowel. After the medical review panel found no breach in the

standard of care, the plaintiff filed suit against Dr. Carriere and Dr. Jones, and their
15 Compare Campo, 2001-2707, pp. 9-10, 828 So.2d at 509 (holding that a petition cannot be

considered prescribed on its face if the plaintiffs’ pleadings make a prima facie showing that it
was filed “within one year of the date of discovery and facts alleged with particularity in the
petition show that the patient was unaware of malpractice prior to the alleged date of discovery,
and the delay in filing suit was not due to willful, negligent, or unreasonable action of the
[plaintiffs]”).

19

insurers. The trial court granted summary judgment in favor or Dr. Carriere and his

insurer and dismissed them from the action with prejudice. Thereafter, Dr. Jones

and his insurer filed an exception of prescription, which the trial court granted. On

appeal, the Fourth Circuit first found that that the plaintiffs’ claims against the

defendants were prescribed and that the burden shifted to the plaintiffs to show

“the suspension, interruption or renunciation of prescription.” Granier, 2019-0657,

p. 5, 288 So.3d at 272 (quoting Jones v. State, 2004-0717, p. 3 (La. App. 4 Cir.

9/29/04), 891 So.2d 698, 701). The Court then found that the plaintiffs could not

rely on La. R.S. 40:1231.8 (A)(2)(a) for the suspension of prescription against all

joint and solidary obligors because no joint or solidary obligation exists as a result

of the dismissal of the timely named defendants.16

16 The Granier Court stated:

Plaintiffs cannot rely on the suspension of prescription against solidary
obligors provisions [o]f La. R.S. 40:1231.8 in this case. Although the medical
review panel proceeding was timely commenced against Dr. Carriere, those
claims were dismissed from this case on a motion for summary judgment, the
basis of which was plaintiffs’ inability to meet their burden of proving “that there
was a deviation from the standard of care and a causal connection between the
allegations of Dr. Carriere's malpractice and the damages sustained by Ms.
Granier.” Our jurisprudence reflects that “where no liability is found on the part
of a timely sued alleged tortfeasor, prescription will not be interrupted or
suspended as to another tortfeasor, who is not timely sued, since no joint or
solidary obligation exists.” Ferrara v. Starmed Staffing, LP, [20]10-0589, p. 5
(La. App. 4 Cir. 10/6/10), 50 So.3d 861, 866. See also, Sims v. Am. Ins. Co.,
[20]12-0204, pp. 6-7 (La. 10/16/12), 101 So.3d 1, 6 (“while prescription is
interrupted by suit against one solidary obligor or joint tortfeasor as to the other
solidary obligors and joint tortfeasors not timely sued, ... where the timely sued
defendant is ultimately found not liable to plaintiffs, the suit against the untimely
sued defendants will then be dismissed, because no joint or solidary obligation
would exist.”). Accordingly, because Dr. Carriere was dismissed with prejudice
from this action, prescription was not suspended as to Dr. Jones as there is no
joint or solidary obligation.

Granier, 2019-0657, p. 6, 288 So.3d at 273. The Court also found that the patient had
constructive knowledge that that her injuries resulted from Dr. Jones’s failure to diagnose bowel
perforation a year before adding Dr. Jones in the medical panel request and rejected the plaintiffs

20

Likewise, in the present case, the timely added defendants were found not

liable on a motion for summary judgment and thus prescription as to Taquino and

Parish Anesthesia is not interrupted or suspended because joint or solidary

obligation no longer exists. As such, like in Granier, La. R.S. 40:1231.8 (A)(2)(a)

does not suspend prescription against Taquino and Parish Anesthesia in this case.17

Plaintiffs further argue that the request for medical review panel was

instituted within a year from when they discovered the extent of Taquino’s “level

of involvement” and overmedication of Ms. Kirt in her August 2012 deposition

and thus under the discovery rule the actions against Taquino and Parish

Anesthesia are timely.18 Plaintiffs contend that the anesthesia records are illegible

and Parish Anesthesia does not appear anywhere in the medical records. 19

Plaintiffs thus claim that they could not reasonably identify Parish Anesthesia as

Taquino’s employer nor the specifics of Taquino’s negligence until Taquino’s

deposition. 20

claim that they were unaware of the malpractice until the deposition of Dr. Carriere. Granier,
2019-0657, p. 7, 288 So.3d at 273.
17 See also Robin v. Hebert, 2012–1417, p. 11 (La. App. 3d Cir. 5/1/13), 157 So.3d 63, 70

(finding that upon the dismissal of the physician, the late-added defendants, who were not
qualified providers, were not joint or solidary tortfeasors subject to the suspension of prescription
under La. R.S. 40:1231.8 (A)(2)(a); stating “[w]ithout an action against Dr. Mounir, there cannot
be suspension of prescription against Hebert/Boyer's since there can be no joint/solidary
obligors”); Williams v. Northgate Hospital, 98–1477 (La. App. 3 Cir. 5/5/99), 734 So.2d 1251
(finding that an unqualified hospital could not be considered a joint or solidary obligor with a
timely sued doctor where the doctor was found not liable).

18 Plaintiffs also note in their brief that after filing its initial complaint requesting medical review

panel in September 2011, they were “anecdotally” advised by TUHC that TUHC does not
employ the CRNAs. However, Plaintiffs do not point to any document in the record evidencing
the date in which they were informally advised that CRNA were not employed by TUHC. In
fact, to support this contention they cite to Dr. Metzinger’s deposition that occurred in November
2012.

19 The record on appeal does not contain the entirety of the medical record, only portions,

specifically, the anesthesia records and at least one page of TUHC’s records.

20 Plaintiffs do not specify the date that they had received the medical records. However,

Taquino and Parish Anesthesia suggested in their original exception of prescription that TUHC’s

21

As discussed above, the discovery rule set forth in La. R.S. 9:5628 is “an

exception to the general rule that medical malpractice actions must be commenced

within one year of the date of the alleged malpractice.” Granier, 2019-0657, 288

So.3d at 273–74 (citing Moses, 2000-2643, p. 8, 788 So.2d at 1178). Under the

discovery rule, the one-year prescriptive period begins “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, 2001-2707, pp. 11-12, 828 So.2d at 510.

This Court in Timpton, 2020-0522, pp. 8-9, 313 So.3d at 1029–30, outlined

that law on discovery and reasonableness of the date of discovery as follows:

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. Percy v. State, E.A. Conway Memorial
Hosp., 478 So.2d 570 (La. App. 2 Cir. 1985). A prescriptive period
will begin to run even if the injured party does not have actual
knowledge of facts that would entitle him to bring a suit as long as
there is constructive knowledge of same. 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 running of prescription. Ledet v.
Miller, 459 So.2d 202 (La. App. 3 Cir. 1984), writ denied, 463 So.2d
603 (La. 1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051
(La. App. 2 Cir. 1977); Opelousas General Hospital v. Guillory, 429
So.2d 550 (La. App. 3 Cir. 1983). Nevertheless, a plaintiff’s mere
apprehension that something may be wrong is insufficient to
commence the running of prescription unless the plaintiff knew or
should have known through the exercise of reasonable diligence that
his problem may have been caused by acts of malpractice. Gunter v.
Plauche, 439 So.2d 437, 439 (La. 1983). Even if a malpractice victim
is aware that an undesirable condition has developed after the medical
treatment, prescription will not run as long as it was reasonable for the
plaintiff not to recognize that the condition might be treatment related.
Griffin v. Kinberger, 507 So.2d 821 (La. 1987). The ultimate issue is
the reasonableness of the patient'’s action or inaction, in light of his

medical records were immediately available to Plaintiffs after Ms. Kirt’s death on September 28,
2010.

22

education, intelligence, the severity of the symptoms, and the nature
of the defendant's conduct. See Griffin, 507 So.2d at 821.

(quoting Campo, 2001-2707, pp. 11-12, 828 So.2d at 510-11).

Plaintiffs are correct in that the anesthesia records are handwritten and

difficult to decipher. Additionally, the medical documents contained in the record

for appeal do not include any reference to Parish Anesthesia; they only refer to

TUHC. However, Taquino’s signature is visible on the anesthesia records and a

typewritten note in the TUHC medical records lists Taquino as one of the CRNAs

present during Ms. Kirt’s procedure.21 Furthermore, Plaintiffs named Taquino and

Parish Anesthesia in their amended requests for formation of medical review panel

months before Taquino’s deposition.

It is undisputed that Plaintiffs filed medical review complaints against

Taquino and Parish Anesthesia, on October 17, 2011 and November 17, 2011,

respectively. Moreover, Plaintiffs were able to make allegations of negligence

against Taquino related to her failure to monitor vital signs, to intubate, and timely

respond to Ms. Kirts’ distress in their medical review complaints. Plaintiffs also

were capable of naming Parish Anesthesia in the request for review as the

employer of the “unidentified CRNA” (Martin) who failed to monitor, and timely

intubate and respond to Ms. Kirt’s signs of distress.22 The fact that Parish

Anesthesia was named in connection with another CRNA, and not Taquino, does

not alter the fact that Plaintiffs had knowledge of Parish Anesthesia’s involvement

21 The page containing the staff on duty for April 8, 2010 surgery is attached to the original reply

memorandum in support of the exception of prescription filed in January 2016.

22 As noted above, Plaintiffs conceded in their brief that they became aware that CRNA was not

employed by TUHC between the filing of the initial request (September 2011) for medical
review panel and the amended requests (October/November 2011). See n. 14. Thus, it is arguable
that Plaintiffs had a duty to make further inquiries as to the true employer of the CRNAs after
September 2011.

23

in the alleged negligent medical treatment of Ms. Kirt. Thus, Plaintiffs were

purportedly aware of some possible improper conduct on Taquino and Parish

Anesthesia’s part nine to ten months prior to Taquino’s deposition.23 As such,

Plaintiffs contention that they first discovered Taquino and Parish Anesthesia’s

malpractice in Taquino’s deposition is ill-founded.

Nevertheless, to support their position, Plaintiffs rely on Ferrara, 2010-

0589, 50 So.3d 861, which found that contra non valentem applied where the

nurse’s name appeared only in handwritten form in the medical records and the

nurse’s employer was not contained in the medical records. The Ferrara Court

found that the plaintiff “could not have reasonably identified the identity” of the

nurse or her employer until the defendant hospital “responded to the discovery

request and furnished their identity.” Id. at p. 9, 50 So.3d at 867. However, as

noted herein, contrary to Ferrara, Taquino’s name was typewritten on the THUC

records and her signature was legible on the anesthesia record. Additionally, both

Taquino and Parish Anesthesia were named in the amended medical review

complaints and thus unlike in Ferrara, Taquino’s identity and her employer were

knowable several months prior to Taquino’s deposition. As such, Ferrara is

distinguishable.

23 In their brief, Plaintiffs argue that their good faith request for medical review panel should not

alter the discovery rule’s trigger date (Taquino’s deposition) because they did not have sufficient
information at that time to meet the legal elements to trigger prescription. Plaintiffs cite Guitreau
v. Kucharchuk, 1999-2570, p. 6 (La. 5/16/00), 763 So.2d 575, 580, which stated that “[m]ere
notice of a wrongful act will not suffice to commence the running of the prescriptive period” and
that “in order for the prescriptive period to commence, the plaintiff must be able to state a cause
of action—both a wrongful act and resultant damage.” As stated above, Plaintiff stated a claim
for negligence (failed to monitor vitals and failed to timely intubate) and damages (suffering and
death of Ms. Kirt) in their request for review several months prior to the date of Taquino’s
deposition.

24

Furthermore, the record shows that Ms. Kirt became unresponsive

approximately ten minutes after Taquino administered anesthesia in response to

Ms. Kirt’s complaint of hip pain. Thereafter, Ms. Kirt coded several times, was

transferred to ICU, and her condition declined until her death in September 2010,

five months after the scheduled surgery. The corneal transplant never occurred. 24

The fact that Ms. Kirt never underwent the scheduled procedure subsequent to the

administration of anesthesia, suffered multiple PEAs, and subsequently died was

sufficient to excite or alert Plaintiffs’ attention to possible malpractice. While

Plaintiffs are not medically trained and according to their brief have “little to no

education,” Ms. Kirt’s deterioration and death following anesthesia put Plaintiffs

on notice and call for inquiry of potential medical negligence before the one year

prescriptive period had elapsed. Moreover, this Court has found that a plaintiff

“need not be informed by an attorney or physician of the possibility of malpractice

before prescription begins to run.” Bosarge v. DePaul/Tulane Behav. Health Ctr.,

2009-1345, p. 5 (La. App. 4 Cir. 5/19/10), 39 So.3d 790, 794 (citing Claim of

Aron, 1996–2665, p. 3 (La. App. 4 Cir. 5/21/97), 695 So.2d 553, 556).

Furthermore, as it relates specifically to Plaintiffs’ claims for wrongful

death, arguably contra non valentem cannot suspend the prescriptive period thereto

because Plaintiffs knew of the date of Ms. Kirt’s death. See Med. Rev. Panel for

Bush, 2021-00954, p. 7 (La. 5/13/22), 339 So.3d 1118, 1123 (noting that the death

of the patient following a suicide attempt “was certainly sufficient to excite

attention to begin the running of prescription in the wrongful death claim filed by

plaintiffs”); see also In re Guidry, 2017-0105, pp. 7-8 (La. App. 5 Cir. 8/30/17),

225 So.3d 1169, 1175 (the discovery rule under the doctrine of contra non

24 The petition for damages also acknowledges that the surgery never occurred.

25

valentem could not be used to suspend the prescriptive period in wrongful death

action that was premised on medical malpractice, where patient’s family knew the

date patient died and the family’s original claim, which they timely filed, made no

mention of any inability to discover the alleged malpractice).25

Plaintiffs had sufficient information to excite their attention and recognize

that Ms. Kirt’s condition may be related to her medical treatment where Ms. Kirt

coded and experienced numerous complications after the implementation of

anesthesia, continually deteriorated, and died. Additionally, Plaintiff named and

made specific negligence allegations against Taquino and Parish Anesthesia in

October and November of 2011. Plaintiffs’ argument that the August 2012

deposition of Taquino was the “earliest” they could have discovered their cause of

action against Taquino and Parish Anesthesia lacks merit.

CONCLUSION

For the above stated reasons, the trial court judgment granting the exception

of prescription in favor of Taquino and Parish Anesthesia is affirmed.

AFFIRMED

25 It is important to note, however, that some courts have applied a fact based reasonableness

inquiry to determine whether contra non valentem should apply to the prescription period for
wrongful death claims in medical malpractice actions. For example, the Third Circuit in Brooks
v. Meaux, 2018-980, pp. 11-12 (La. App. 3 Cir. 6/12/19), 275 So.3d 41, 48–49, noted that while
the damage was apparent at the time of the patient’s death, the ultimate question was the
reasonableness of the patient in discovering the malpractice. The Brooks Court stated:
“Undoubtedly, the damage in this case was readily apparent at the time of Mrs. Brooks’ death. In
Campo, 828 So.2d at 511, however, the [S]upreme [C]ourt instructed that even upon an
awareness of damages, prescription ‘will not run as long as it was reasonable for the plaintiff not
to recognize that the condition might be treatment related.’” See also In re Guidry, 2017-0105, p.
10, 225 So.3d at 1181 (Liljeberg, J., dissenting) (stating that “[t]he same evidence, facts and
circumstances apply to both the wrongful death and survival actions; “the survival and wrongful
death actions are interrelated to the extent they both arise from the same negligence or fault,
which is the medical malpractice;” “[i]t is contradictory to have two different factual findings as
to when sufficient knowledge existed to commence the prescriptive period for each cause of
action”).

26

27