In Re: Medical Review Panel Proceeding of the Family of Hai Nguyen .

IN RE: MEDICAL REVIEW * NO. 2025-CA-0252
PANEL PROCEEDING OF
THE FAMILY OF HAI *
NGUYEN COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-04122, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Chief Judge Roland L. Belsome
******
(Court composed of Chief Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Rachael D. Johnson)

Christopher Minias
MINIAS LAW FIRM
1615 Poydras St.
Suite 900
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

C. WM. Bradley, Jr.
Lance V. Licciardi, Jr.
Jada C. Doucet
BRADLEY MURCHISON KELLY & SHEA, LLC
1100 Poydras Street, Suite 2700
New Orleans, LA 70163-2700

Michael F. Nolan
Sarah L. Johnson
CONNICK AND CONNICK, L.L.C.
3421 N. Causeway Blvd., Suite 408
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
December 5, 2025

RLB In this medical malpractice survival claim, Plaintiffs/Appellants appeal a

PAB judgment of the trial court sustaining a peremptory exception of prescription,

RDJ dismissing their alleged survival action with prejudice. For the following reasons,

we affirm the judgment of the trial court.

FACTS

The Appellants in this case are members of the family of Hai Nguyen (“Ms.

Nguyen”), a woman who died in March, 2020. On April 20, 2019, Ms. Nguyen

visited the emergency room at Tulane Medical Center accompanied by her

daughter, Nga Nguyen (“Nga”). She had fallen at her home. Ms. Nguyen suffered

bruising and subarachnoid hemorrhage as a result of her fall.1 She was released the

following day. For brevity, we refer to this period as the “First ER Visit.”

Appellants allege that Ms. Nguyen had evidence of gangrene in her toes at the First

ER Visit.

Ms. Nguyen returned to Tulane Medical Center on May 15, 2019,

complaining of shortness of breath and lower extremity swelling. She was admitted

by Appellee, Dr. John C. Simon (“Dr. Simon”), who ordered a consult with a

1 At the time of the First ER Visit, Ms. Nguyen was 59 years old. She was also suffering from

diabetes, end-stage renal disease, hypertension, lung ailments and peripheral vascular disease
throughout her body. She also had other neurological issues after the fall.

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nephrologist fellow, Appellee, Dr. Zamir A. Zamir (“Dr. Zamir”), who examined

her the next day. Dr. Zamir ordered continuing dialysis2 and noted “non-gangrene”

on her lower extremities after a normal inspection. Ms. Nguyen was discharged

two days later. This period will be referred to as the “Second ER Visit.”

On June 3, 2019, Ms. Nguyen sought further treatment with Dr. Vu Mai

(“Dr. Mai”) at Westbank Medical and Walk-In Clinic. At this appointment, Ms.

Nguyen was accompanied by her daughter, Nga. Medical records indicate, on this

day, that a wheelchair was ordered because of inevitable amputation of the foot;

she was prescribed Silvadene, a topical cream, to treat the wounds in her feet

caused by gangrene. Dr. Mai ordered a bi-lateral ultra sound of the feet in order to

evaluate the lack of vascular movement and infection. Further, the report stated

that Ms. Nguyen was “present for a [follow up] for gangrene in the toes and heel.”

The report also noted, a “non-healing ulcer of the heel”, lower leg with necrosis of

muscle and “gangrenous toes and heels.” Dr. Mai referred Ms. Nguyen to a

vascular surgeon specialist, Dr. Shivak Patel (“Dr. Patel”).

Ms. Nguyen visited Dr. Patel, at West Jeff Medical Center on June 21, 2019.

He noted in her record that her condition “had been worsening over the past 2

months” and he informed Ms. Nguyen that she would need an amputation. Ms.

Nguyen’s leg was amputated below the knee on July 1, 2019. Ms. Nguyen died

from a heart attack on March 27, 2020.

Appellants requested a medical review panel alleging medical malpractice

by Drs. Simon and Zamir, on June 15, 2020. Appellants alleged that the doctors’

failure to diagnose, investigate, treat, and monitor Ms. Nguyen’s foot hastened her

2 Ms. Nguyen was already on a regular dialysis regimen.

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death. Both defendants filed exceptions of prescription, claiming that the one-year

prescriptive period had lapsed pursuant to La. R.S. 9:5628(A).

The trial court heard the exceptions on December 5, 2024. At the hearing,

Appellant’s counsel attempted to have Nga testify about the information conveyed

at the June 3 appointment with Dr. Mai. Defense counsel objected, arguing that

Appellants had given no prior notice of their intent to call a witness at the hearing.

The trial court did not allow the live testimony, referring to any such testimony as

“self-serving.” Additionally, the trial court found that Ms. Nguyen had the

necessary constructive knowledge required to begin the running of prescription on

her claim after her visit with Dr. Mai on June 3, 2019. The exceptions were

sustained as to Appellants’ survival action but not as to their wrongful death claim.

A written judgment was issued on December 16, 2024, dismissing both defendants.

Appellants appeal judgment here.

STANDARD OF REVIEW

Evidence introduced at the trial of the exception included medical reports

from most of Ms. Nguyen’s doctor appointments. “Typically, when prescription is

raised by peremptory exception, the trials court’s findings of fact on the issue of

prescription are subject to the manifest error-clearly wrong standard of review.”

Johnson v. Ruston Louisiana Hospital Co., LLC, 54-258, p. 9, (La.App. 2 Cir.

8/10/22), 345 So.3d 464, 470. We apply that standard of review here.

DISCUSSION

Appellants aver that the claim is timely under the “discovery rule” pursuant

to La. R.S. 9:5628, as it was filed six days less than one year after June 21, 2019.

They argue that this is the date on which Nguyen was explicitly informed of the

severity of her gangrene, the need for amputation, and the connection to prior care.

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Appellants contend further that the June 3 appointment at Westbank Medical only

noted the “possibility” of amputation and was not a “definitive diagnosis.” Nga’s

rejected testimony, Appellant’s allege, would confirm that the June 3 appointment

“neither explicitly connected the gangrene to prior medical treatment nor suggested

that amputation was imminent.”

Conversely, Appellees argue that prescription began to toll on June 3, 2019,

when Ms. Nguyen and Nga Nguyen visited Dr. Mai. This appointment was not

routine, but a second opinion. This coupled with the treatment plan provided by

Dr. Mai was enough to incite constructive knowledge of a claim for malpractice.

Prescription in a medical malpractice case is controlled by La. R.S. art.

9:5628, which provides in pertinent part as follows:

A. 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.3
(Emphasis added.)

The pivotal question in this matter is when Ms. Nguyen gained constructive

knowledge of potential malpractice sufficient to start the tolling of prescription.

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

3 La. R.S. art. 9:5628 not only corresponds with the basic one year prescriptive period for delictual
actions . . . . it embodies the “discovery rule” delineated as the fourth category in the jurisprudential
doctrine of contra non valentem. Campo v. Correa, 01-2707, p. 9, La. 6/21/02), 828 So.2d 502, 509.

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put the injured party on guard and call for inquiry.” Campo v. Correa, 01-2707, p.

12, (La. 6/21/02), 828 So.2d 502, 510-511.

The Appellants maintain that notice of the severity of Ms. Nguyen’s

condition was not relayed until her appointment with a specialist in wound care,

podiatry and vascular surgery, on June 21, 2019. This consultation, they state, was

the point where Ms. Nguyen was given “the first clear evidence of malpractice.”

“The law of prescription . . . does not require that the plaintiff be informed

by a medical practitioner or an attorney of possible malpractice before the

prescriptive period begins to run.” In re Med. Review Panel Proceedings of

Singleton, 23-190, p. 9, (La.App. 5 Cir. 2/28/24), 382 So.3d 1063, 1070 aff'd sub

nom. In re Med. Review Panel Proceedings of Don Singleton, 24-00415 (La.

6/19/24), 386 So.3d 306 (quoting Mitchell v. Baton Rouge Orthopedic Clinic,

L.L.C., 21-00061, p. 18 (La. 10/10/21); 333 So.3d 368, 381). “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 [their] problem may have been caused by acts

of malpractice.” Campo v. Correa, 01-2707, p. 12, La. 6/21/02), 828 So.2d 502,

510. Further, “[t]he referral of a patient to another physician can constitute the

constructive knowledge necessary to commence the running of the one-year

prescriptive period.” In Re Hickman, 14-779, p. 10, (La.App. 3 Cir. 2/4/15), 158

So.3d 187, 194.

In the matter before us the alleged malpractice occurred on April 20, May 15

and 16, 2019, the dates when the Appellees failed to recognize that Ms. Nguyen

was suffering from gangrene. On June 3, 2019, Ms. Nguyen visited a family

physician because her symptoms were worsening. Ms. Nguyen was then referred to

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a specialist. Westbank Medical’s records indicate that gangrene was present and

prescribed topical cream to address it. The record also suggests that a leg

amputation is imminent, as Ms. Nguyen’s condition had been “worsening over the

previous two months.” All of these factors indicate that Ms. Nguyen knew or

should have known about her condition. The circumstances should have given a

reasonable person constructive knowledge that the diagnosis was missed.

We find that the trial court was not manifestly erroneous, or clearly wrong in

sustaining the Appellees’ exception of prescription. We agree that the claim

prescribed on June 3, 2020.

WITNESS TESTIMONY

Appellants contend that dispositive testimony could have been provided by

Ms. Nguyen’s daughter. Therefore, Appellants argue that the “appropriate

remedy” by the court would have been “to permit additional evidence and

discovery of the disputed factual merits of this issue, rather than dismissing

Plaintiff’s claim summarily as a matter of law.”

Orleans Parish Civil District Court, Local Rule, Title II: 9.8(a), outlines

procedure for testimony: “To assist the court in scheduling the hearing, the

exception or motion, and any opposition thereto, shall state: (1) whether or not the

case is set for trial and, if so, the trial date; and (2) whether testimony will be

offered at the hearing.”

“A trial judge has great discretion in conducting a trial. . . . This discretion

includes the admissibility of a witness’s testimony.” Louisiana Safety Ass’n of

Timbermen v. Carlton, 12-0775, p. 5, (La.App. 1 Cir. 12/21/12), 111 So.3d 1076,

1081 (internal citations omitted). Opposing counsel objected to the proposed

testimony at the hearing. Neither opposing counsel nor the court was informed of

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the witness beforehand. Counsel for the Appellants had ample opportunity to admit

this evidence throughout the discovery process.4 We see no abuse of the court’s

discretion to deny Ms. Nguyen’s daughter from testifying at the hearing.

CONCLUSION

Based on the record before us, we find that Ms. Nguyen had the necessary

constructive knowledge to begin tolling the one-year prescriptive period on June 3,

2019, thus the survival action against the Appellees was prescribed. The judgment

dismissing Appellants’ petition filed more than one year later on June 15, 2021 is

affirmed.

AFFIRMED

4 Appellants did not proffer the evidence to preserve for their appeal and the witness testimony is

not in the record.

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