In Re: Medical Review Panel of Mason Heath (M)

Judgment rendered August 11, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,020-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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IN RE: MEDICAL REVIEW PANEL
OF MASON HEATH

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 78,203

Honorable E. Charles Jacobs, Judge

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SINGLETON LAW FIRM Counsel for Appellants
By: W. James Singleton Isiah Heath and
Brittany M. Young Chrishanna Smith,
O/B/O Mason Heath

GACHASSIN LAW FIRM Counsel for Appellees
By: Julie Savoy Robert Russell, M.D. and
Minden Medical Center

WATSON, BLANCHE, WILSON & POSNER Counsel for Appellee
By: Chris J. LeBlanc Cristal Kirby, M.D.

*****

Before MOORE, COX, and THOMPSON, JJ.

MOORE, C.J.

Isiah Heath and Chrishanna Smith appeal two judgments that

sustained exceptions of prescription and dismissed their claim of medical

malpractice arising from the circumcision of their newborn son, Mason, in

2015. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Mason was born at Minden Medical Center (“MMC”), in Minden,

La., on August 17, 2015; Dr. Robert Russell performed the circumcision the

next day. A few weeks earlier, Ms. Smith had signed a “Consent for

Circumcision of Newborn,” acknowledging certain risks; when the couple

brought Mason home, MMC gave them “Newborn Discharge Instructions.”

The surgery was Dr. Russell’s only interaction with Mason.

According to their complaint with the Patient Compensation Fund

(“PCF”), “after arriving home the family began to notice Mason suffering

from complications. Approximately a month after the circumcision, Mason

began experiencing what his parents label as flair [sic] ups. These * * *

include swelling of the penis, pain, and disfigurement.” Ms. Smith brought

him to Minden Pediatrics for two well-child visits in September 2015, with

Dr. Crystal Kirby. On the second of these, September 23, Dr. Kirby noted,

“Mom concerned about how circumcision looks,” found “penile adhesions

with skin bridging,” and prescribed a mild steroid cream to apply twice a

day for 30 days. According to the complaint, Ms. Smith applied this

consistently but it provided only temporary relief. September 23 was the

final time that Dr. Kirby saw Mason; apparently, she left Minden Pediatrics.

However, Ms. Smith brought Mason back to Minden Pediatrics five

times between October 2015 and February 2016;1 on these trips, he saw a

nurse practitioner, LeKidra Brown. On the December 2015 visit, Ms. Smith

asked them to “check private area,” and Nurse Brown advised her to keep

applying the steroid cream.

On April 11, 2016, Ms. Smith brought Mason to Bienville Family

Clinic, in Arcadia, for the first of several Kid Med well visits. At this time,

according to the complaint, Mason was “still experiencing complications

with the circumcision site.” On a later visit, July 2, 2018, she reported that

the child’s “penis swells recurrently” and “the circumcision is not right when

* * * not swollen.” According to the complaint, a Dr. Jason Wilson

examined the site and referred them to Willis-Knighton Pierremont, in

Shreveport.2

Ms. Smith and Mr. Heath (hereinafter, “the claimants”) brought

Mason to Willis-Knighton on July 23, 2018. There, doctors diagnosed

“penile skin bridge, meatal stenosis with lower urinary tract symptoms,

dysuria and occasional penile pain,” and recommended an outpatient surgery

to excise the adhesion and skin bridge.

PROCEDURAL HISTORY

The claimants filed this malpractice complaint with the PCF on

August 14, 2018, naming as defendants Dr. Russell, Dr. Kirby, and Minden

Medical Center and staff. As of September 2019, the medical review panel

had not yet rendered an opinion.

1
Four of these are on stationery that reads “Ruston Clinic.”
2
The progress note for this date is actually signed by a physician assistant, Cedric
Willis.
2

MMC and Dr. Russell filed an exception of prescription in the district

court. They showed that the only time they provided any healthcare for

Mason was August 18, 2015, and that the complaint was not filed until

August 14, 2018, far beyond the one-year limit of La. R.S. 9:5628 A. They

argued that the claimants should have discovered the potential problem

much sooner than one year before filing, notably when Dr. Kirby prescribed

the steroid cream (September 23, 2015) or when Dr. Wilson found a “penile

abnormality” (April 11, 2016). In support, they attached copies of the

complaint and of charts from MMC, Bienville Family Clinic, Minden

Pediatrics, and Willis-Knighton.

Dr. Kirby then filed a separate exception of prescription in the district

court. She showed that her last contact with Mason was September 23,

2015, far more than one year before the complaint was filed. She argued

that when Ms. Smith took Mason to Bienville Family Clinic (April 11,

2016), she complained about problems at the surgical site, and this was

sufficient to place her on notice about potential malpractice. In support, Dr.

Kirby attached the entire PCF file and copies of the charts from Minden

Pediatrics and Bienville Family Clinic.

The claimants opposed Dr. Kirby’s exception. They argued that the

last time she saw Mason, Dr. Kirby told them he was “healing

appropriately”; on subsequent visits to Minden Pediatrics, Nurse Brown told

them just to keep applying the cream; and they never suspected anything

was wrong until they took him to Dr. Wilson (July 2, 2018), and he told

them the penis was abnormal. In support, they attached a copy of the

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Bienville Family Clinic chart. Dr. Kirby filed a memo in response to this

opposition.3

Hearing on the exception was set for Tuesday, June 2, 2020. Late

Friday afternoon, May 29, counsel for the claimants filed an ex parte motion

to continue alleging that their attorney had been “ill and her recovery period

is uncertain,” and that the case had been assigned to a “new attorney within

the firm.” On the day of the hearing, the new attorney showed up prepared

only to argue the motion to continue, which the district court denied.

On the merits, counsel for Dr. Kirby submitted the matter on briefs;

counsel for MMC and Dr. Russell argued and introduced into evidence all

the exhibits attached to their exception. Claimants’ attorney offered no

argument or evidence.

ACTION OF THE DISTRICT COURT

The district court wrote an opinion finding that the claimants changed

their healthcare provider in April 2016, some six months after the defendants

treated Mason, and “reported to the new provider that [he] was continuing to

suffer problems from the circumcision.” The court found this was sufficient

information to constitute discovery under R.S. 9:5628, citing Holmes v.

LSU/E.A. Conway Med. Ctr., 43,662 (La. App. 2 Cir. 10/22/08), 997 So. 2d

605. The complaint, filed in August 2018, was simply too late.

The court later signed separate judgments sustaining the exceptions.

The claimants have appealed, raising two assignments of error.4

3
The record does not show that the claimants formally opposed MMC and Dr.
Russell’s exception, but these defendants responded to the opposition regarding Dr.
Kirby.
4
They do not contest the denial of their motion to continue.
4

APPLICABLE LAW

A claim for medical malpractice must be brought “within one year

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

from the discovery of the alleged act, omission, or neglect[.]” La. R.S.

9:5628 A. The statute continues, “[E]ven 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.” Id. The statute is a tripartite prescription provision,

fixing (1) a one-year general rule, for damages that are immediately

apparent, (2) a one-year discovery rule, for damages that are latent, and (3)

an overall limitation of three years. Guffey v. Lexington House LLC, 18-

1568 (La. 5/8/19), 283 So. 3d 1001; Carter v. Haygood, 04-0646 (La.

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

The discovery rule is an important portion of the jurisprudential

doctrine of contra non valentem. Campo v. Correa, 01-2707 (La. 6/21/02),

828 So. 2d 502. Under this rule, 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.” Id. A prescriptive period

begins 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 he has constructive

knowledge of such facts. Constructive knowledge is “whatever notice is

enough to excite attention and put the injured person on guard and call for

inquiry”. Id.; Jenkins v. Starns, 11-1170 (La. 1/24/12), 85 So. 3d 612. The

ultimate issue in determining constructive knowledge is the “reasonableness

of the patient’s action or inaction, in light of his education, intelligence, the

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severity of the symptoms, and the nature of the defendant’s conduct.”

Campo v. Correa, supra (emphasis in original); Jenkins v. Starns, supra.

In Bailey v. Khoury, 04-0620 (La. 1/20/05), 891 So. 2d 1268, the

supreme court elaborated:

The damage suffered must at least be actual and
appreciable in quality – that is, determinable and not merely
speculative. But there is no requirement that the quantum of
damages be certain or that they be fully incurred in some
particular quantum, before the plaintiff has a right of action.
Thus, in cases in which a plaintiff has suffered some but not all
of his damages, prescription runs from the date on which he
first suffered actual and appreciable damage, even though he
may thereafter come to a more precise realization of the
damages he has already incurred or incur further damages as a
result of the completed tortious act.

Id. at 10, 891 So. 2d at 1276; Watson v. Glenwood Reg’l Med. Ctr.,

49,661 (La. App. 2 Cir. 4/15/15), 163 So. 3d 817, writ denied, 15-0945 (La.

8/28/15), 176 So. 3d 404.

Prescriptive statutes are strictly construed in favor of maintaining a

plaintiff’s cause of action. Correro v. Ferrer, 16-0861 (La. 10/28/16), 216

So. 3d 794; Borel v. Young, 07-0419 (La. 11/27/07), 989 So. 2d 42.

Appellate review extends to law and facts, with the jurisprudential

rule that a trial court’s factual findings will not be upset unless they are

manifestly erroneous or clearly wrong. Snider v. Louisiana Med. Mut. Ins.

Co., 13-0579 (La. 12/10/13), 130 So. 3d 922; Wooley v. Lucksinger, 09-0571

(La. 4/1/11), 61 So. 3d 507. Under this standard, when there are two

permissible views of the evidence, the factfinder’s choice between them

cannot be manifestly erroneous or clearly wrong. Wooley v. Lucksinger,

supra; Rosell v. ESCO, 549 So. 2d 840 (La. 1989). This standard applies to

findings on an exception of prescription, if evidence was offered in the trial

court. Carter v. Haygood, supra; In re Med. Review Panel Proceedings for
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claim of Ferguson v. Howell, 53,139 (La. App. 2 Cir. 11/20/19), 284 So. 3d

1231, writ granted on other grounds, 19-02033 (La. 6/22/21), 318 So. 3d 34.

By contrast, when one or more trial court legal errors interdict the

factfinding process, the manifest error standard no longer applies and, if the

record is otherwise complete, the appellate court should make its own

independent de novo review of the record and determine a preponderance of

the evidence. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731;

Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So. 2d 742.

However, not every trial court error automatically results in de novo review;

only legal error that interdicts, or prevents the district court from making, a

finding of fact will activate the more relaxed, de novo standard. McGlothlin

v. Christus St. Patrick Hosp., 10-2775 (La. 7/1/11), 65 So. 3d 1218; Watson

v. Glenwood Reg’l Med. Ctr., supra.

DISCUSSION

By their first assignment of error, the claimants urge that the court

erred as a matter of law in granting MMC and Dr. Russell’s exception of

prescription. They concede that prescription is usually a matter of manifest

error, but contend that legal error mandates de novo review, Campo v.

Correa, supra. They submit that the court made a factual error in finding

that Dr. Kirby treated Mason only once, and a legal error when it shifted the

burden of proof to the claimants. On the merits, they attempt to distinguish

Holmes v. LSU/E.A. Conway Hosp., supra, in that the instant record contains

no evidence that their conduct was willful, negligent, or unreasonable; they

contend that on de novo review, this court should accept their allegation that

they were unaware of any problem until July 2018. Finally, they argue that

La. R.S. 9:5628 A sets a one-year limit from discovery, subject to a three-
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year outer limit; as their claim came within three years, they contend that it

was timely. They conclude that MMC and Dr. Russell failed to prove that

prescription had run.

The district court committed an error when it stated, in its opinion,

that Dr. Kirby “treated Plaintiff one time on September 2, 2015.” The

record is abundantly clear that she treated Mason twice, on September 2 and

23, 2015. However, this was a factual error, not a legal error, and the court

did not apply any incorrect legal standard or forgo making any requisite

factual conclusions. As in McGlothlin v. Christus St. Patrick and Watson v.

Glenwood Reg’l Med. Ctr., supra, the error was not of the kind that requires

us to disregard the district court’s other findings of fact. Therefore, the

matter is subject to manifest error review.

The MMC chart includes a document, “Consent for Circumcision of

Newborn,” which listed, as risks and complications, “infection; poor

healing; injury to the penis; removal of an inadequate or an excessive

amount of foreskin; abnormalities of the flow of urine[.]” Ms. Smith signed

this consent on June 11, 2015, about two months before Mason’s birth. The

chart also includes “Newborn Discharge Instructions,” advising parents

“When to Call the Baby’s Provider”: “A very red penis, excessive

swelling[.]” Ms. Smith signed this on August 17, 2015. The complaint

alleged that flare-ups of swelling, pain, and disfigurement began occurring

about one month after the operation, and that the parents voiced these

concerns when they went to Dr. Kirby for two pediatric exams in September

2015. Further, they were still concerned about it when they brought Mason

to Bienville Family Clinic on April 11, 2016. These facts strongly suggest

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that the claimants had enough information to excite inquiry, place them on

guard, and call for inquiry as to whether malpractice had occurred.

We recognize that the claimants did not get confirmation until July

2018, on a final visit to Bienville Family Clinic and the referral to Willis-

Knighton. However, this court has rejected the argument that prescription

does not begin to run until the patient receives a definitive diagnosis.

Watson v. Glenwood Reg’l Med. Ctr., supra; Morgan v. Patwardhan, 48,626

(La. App. 2 Cir. 3/12/14), 137 So. 3d 680, writ denied, 14-0919 (La.

8/25/14), 147 So. 3d 1118; Bailey v. Haynes, 37,038 (La. App. 2 Cir.

4/9/03), 843 So. 2d 584, writ denied, 03-1209 (La. 10/10/04), 856 So. 2d

1207.

As noted, the three-year overall limitation is expressly contingent on a

claim “filed within one year from the date of such discovery,” R.S. 9:5628

A. Despite the strict construction of prescriptive statutes to maintain actions

rather than defeat them, the court has never disregarded the discovery rule in

favor of a general, three-year limitation. Such an approach would, in

essence, negate the general rule and the discovery rule in favor of the overall

limitation. It would disregard the tripartite structure recognized in Guffey v.

Lexington House LLC, supra, and Carter v. Haygood, supra. We decline to

accept the claimant’s position that their complaint was timely because it

came within three years of the alleged harm.

After close review, we find the district court was not plainly wrong

when it found that the claimants had sufficient information to excite their

attention and put them on guard as to potential malpractice, by at least April

11, 2016. They had one year from this discovery date to file their complaint.

La. R.S. 9:5628 A. They did not file their complaint until August 14, 2018,
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over a year later. The judgment granting MMC and Dr. Russell’s exception

of prescription is not wrong. This assignment of error lacks merit.

By their second assignment of error, the claimants urge the court erred

in finding that prescription began to run on April 11, 2016, as to Dr. Kirby.

They reiterate that the delay in filing was not willful, negligent, or

unreasonable; they submit that Ms. Smith was a 19-year-old, first-time

mother with limited education, who relied on her healthcare providers. They

also argue that even after Dr. Kirby left Minden Pediatrics, she was still

“directly supervising” Nurse Brown, and under La. Adm. C. T. 46, Pt. XLV,

§ 4505, all of Nurse Brown’s acts should be imputed to Dr. Kirby. Finally,

conceding that Ms. Smith voiced some concerns to Dr. Kirby in September

2015 and to Dr. Wilson in July 2018, they contend that this was mere

apprehension, and not sufficient to constitute discovery, as in Griffin v.

Kinberger, 507 So. 2d 821 (La. 1987).

As noted, counsel for the claimants introduced nothing at the hearing

on the exceptions. Thus, there is no record evidence regarding their age,

inexperience, lack of education, or degree of reliance on healthcare

providers. The record does show that after Ms. Smith signed a consent and

received discharge instructions, the claimants noticed significant problems

within one month, reported these to Dr. Kirby twice in September 2015, and

again, to the new doctor, at Bienville Family Clinic, in April 2016. These

facts easily distinguish the case from Griffin v. Kinberger, supra, which

states that the parents had absolutely no facts on which to base a suspicion of

malpractice, involving a child born in 1964, until they saw a newspaper

article about the condition in 1982. The instant record contains sufficient

facts to support the finding that discovery occurred in April 2016.
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Finally, the Administrative Code provision cited is part of Title 46,

Part XLV, pertaining to physician assistants. Section 4505 A states, in part:

The practice of a physician assistant shall include the
performance of medical services that are delegated by the
supervising physician and are within the scope of the physician
assistant’s education, training, and licensure. A physician
assistant is considered to be and is deemed the agent of his
supervising physician in the performance of all practice-related
activities, including but not limited to assisting in surgery and
ordering and interpretation of diagnostic and other medical
services with appropriate supervision provided.

By its own terms, this section applies only to physician assistants, not

to nurse practitioners, such as Nurse Brown. We are aware of no statute or

administrative rule that would make a nurse practitioner the agent of his or

her supervising physician. This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgments are affirmed. Appellate

costs are to be paid by the claimants.

AFFIRMED.

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