Melba Braud v. Dr. William A. Cenac

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1696

MELBA BRAUD

VERSUS

DR. WILLIAM A. CENAC, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER 2003-584
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Sylvia R. Cooks, Billie Colombaro Woodard, and Marc T. Amy,
Judges.

AFFIRMED.

Cooks, J., concurs and assigns reasons.
Amy, J., concurs in the result.

Charles G. Justice III Eugene J. Sues
635 St. Charles Avenue Misty Shannon Antoon
New Orleans, Louisiana 70130 Barbara L. Bell
(504) 525-7575 Randall M. Seeser
C O U N S E L F O R Gold, Weems, Bruser, Sues &
PLAINTIFF/APPELLANT: Rundell
Melba Braud Post Office Box 6118
Alexandria, Louisiana 71307
(318) 445-6471
C O U N S E L F O R
DEFENDANT/APPELLEE:
M. Angela Mayeux

Tiffany B. Thornton Spiro J. Verras
James R. Shelton Pan-American Life Center
Durio, McGoffin & Stagg 601 Poydras Street, Suite 2655
Post Office Box 51308 New Orleans, Louisiana 70130
Lafayette, Louisiana 70505 (504) 523-2500
(337) 233-0300 C O U N S E L F O R
C O U N S E L F O R PLAINTIFF/APPELLANT:
DEFENDANT/APPELLEE: Melba Braud
Dr. William A. Cenac, M.D.

2

WOODARD, Judge.

Ms. Braud appeals the trial court’s dismissal of the two Defendants via
exceptions of prescription. We must affirm the trial court’s judgments.

*****

The Plaintiff, Ms. Melba Braud, sued both Dr. Angela Mayeux and Dr. William
Cenac for medical malpractice. Specifically, she alleged that Dr. Mayeux negligently
performed her left hip replacement surgery, which caused her left leg to be slightly
longer than her right, and that Dr. Mayeux failed to treat a post-surgical infection. She
also claimed that Dr. Cenac was negligent in his failure to diagnose and treat this same
infection. Ultimately, Dr. Chad Millet removed her hip prosthesis, treated the area,
and inserted a new prosthesis.
The trial court found that Ms. Braud’s malpractice claims against both
physicians had prescribed and, therefore, dismissed them. She appeals.

*****

PRESCRIPTION APPLICABLE TO MEDICAL MALPRACTICE CLAIMS
Louisiana Revised Statute 9:5628 provides, in pertinent part:

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. 40:1299.41(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.

(Emphasis added.)

1

PRESCRIPTION FOR LEG LENGTH DISCREPANCY
Dr. Mayeux performed hip arthroplasty surgery on Ms. Braud’s left hip on July
21, 1997. After the surgery, her left leg was longer than her right leg. On January 25,
2002, Ms. Braud filed a complaint with the medical review board against Dr. Mayeux,
claiming that the difference in the length of her legs resulted from Dr. Mayeux’s
improper performance of her surgery. She asserted that she did not discover for some
time the reason for her length inequality, giving rise to malpractice, or her actual long-
term prognosis because she trusted Dr. Mayeux, who told her that the leg length
discrepancy would alleviate itself over time. She avers that she relied on these
misrepresentations “until well after January 25, 1999;” therefore, she did not discover
that she may have a cause of action against Dr. Mayeux until later than January 25,
1999.
While the alleged discovery date is critical in determining when La.R.S.
9:5628's one-year prescriptive period begins to run, it is irrelevant in determining
whether the three-year prescriptive period bars Ms. Braud’s claim, because we must
employ an objective measure of whether she filed suit within three years from the date
of surgery, constituting the alleged malpractice.1
Dr. Mayeux performed Ms. Braud’s hip replacement surgery on July 21, 1997.
Ms. Braud filed her claim against Dr. Mayeux on January 25, 2002, over three years
after the surgery. Thus, her claim is prescribed on its face. This shifts the burden to
Ms. Braud to show that it is not prescribed.2
The jurisprudential doctrine of contra non valentem agere nulla currit
praescriptio recognizes that “in some circumstances, equity and justice require that
the prescription ‘be suspended because the plaintiff was effectually prevented from
enforcing his rights for reasons external to his own will.’”3 Prescription will not run
against a person who is unable to act, which means unable to file suit.4 The contra
non valentem doctrine contemplates four different scenarios in which a person is

1
La.R.S. 9:5628; In re Medical Review Panel for Claim of Moses, 00-2643 (La.
5/25/01), 788 So.2d 1173.
2
Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, 509 n.10.
3
Touchet v. Baker Hughes, Inc., 98-749, p. 5 (La.App. 3 Cir. 2/3/99), 737 So.2d
821, 824 (quoting Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206)).
4
Fontenot v. ABC Ins. Co., 95-1707 (La. 6/7/96), 674 So.2d 960.

2

unable to file suit, only two of which are relevant in the instant case. One scenario,
often referred to as the “discovery rule,” suspends prescription where a plaintiff
neither knew she had a cause of action nor could have learned of it through reasonable
diligence.5
Louisiana Revised Statute 9:5628 incorporates the jurisprudential discovery
rule, allowing a plaintiff to file suit one year from the date she discovers, or should
have discovered, that she had a cause of action, regardless of the date of the wrongful
conduct giving rise to such cause of action.6 However, the statute provides an outside
prescriptive period of three years. While jurisprudence holds that the three-year
period is a prescriptive, rather than peremptive period, it places an overall time limit
on the discovery rule.7 In other words, if suspension is based on the discovery rule
type of contra non valentem, the three year period cannot be suspended or
interrupted.8 Accordingly, it cannot save Ms. Braud’s claim from prescription in the
instant case.
The other relevant scenario that contra non valentem contemplates is when the
defendant does something to conceal the wrongful conduct and, in effect, prevents the
plaintiff from availing herself of her cause of action.9 The supreme court has not yet
decided whether a plaintiff may invoke this category to suspend the running of the
three-year prescriptive period in La.R.S. 9:5628; however, it has strongly implied that
if the defendant’s conduct rises to the level of fraudulent concealment,
misrepresentations, or ill practices, the three-year prescriptive period can be
suspended.10 We agree with this interpretation of La.R.S. 9:5628 and, therefore,
proceed to evaluate Dr. Mayeux’s conduct under this standard.
Ms. Braud alleges that Dr. Mayeux repeatedly assured her that her leg length
discrepancy would alleviate itself over time. Dr. Mayeux admits telling Ms. Braud
that once her abductor muscles grew stronger, she would not feel so unlevel. This,

5
Touchet, 737 So.2d 821.
6
Moses, 788 So.2d 1173.
7
Campo, 828 So.2d 502.
8
Id.
9
Moses, 788 So.2d 1173.
10
Id.

3

alone, does not prove any intentional misconduct or concealment on Dr. Mayeux’s
part. However, Dr. Mayeux admitted that she knew Ms. Braud’s leg length inequality
could have been the result of the length of the prosthesis she used in the surgery.
Specifically, she said:

Q. Tell me again, please - - you mentioned a couple of reasons that a
surgical patient could end up with a leg length inequality. Could you say
those again, please?

A. It could be from the length of the prosthesis. It can also be from
degenerative scoliosis in the back, causing the pelvis to be unlevel.

Q. Is there . . . something . . . that could have happened during the
surgery, caused by the surgeon, that could cause there to be a leg length
inequality?

A. We had just discussed that. Yes, sir. The length of the prosthesis.

When a physician breaches her duty to disclose information to a patient, it can
rise to the level of fraudulent concealment. However, when a physician breaches that
duty because she has negligently misdiagnosed the patient’s condition, the physician’s
conduct does not rise to the requisite level because “[a] doctor who negligently
misdiagnoses a patient’s condition is, at least at the time of the diagnosis, as ignorant
of his negligence as is the potential plaintiff. Obviously, a defendant cannot be said
to have concealed facts of which he had no knowledge.”11
In the instant case, Dr. Mayeux was not ignorant of the possible cause of the
inequality. On the contrary, the evidence reveals that she knew it could be because
she failed to properly measure the prosthesis she inserted, yet, she did not disclose
this information to Ms. Braud. Furthermore, instead of determining for sure the true
cause or disclosing to Ms. Braud all of the possible causes, she affirmatively and
conclusively stated to Ms. Braud that her weak muscles were the problem. In effect,
she concealed from Ms. Braud the information that would have alerted her to a
possible cause of action.
Dr. Mayeux’s failure to make a complete disclosure to her patient prolonged
this patient’s agony and recovery, while potentially insuring that she would be

11
Whitnell v. Menville, 540 So.2d 304, 308 (La.1989).

4

foreclosed, due to prescription, from bringing a cause of action for malpractice.
Nevertheless, without qualification, our supreme court has found that a physician’s
reassurances to a patient that her condition will alleviate itself over time does not
automatically rise to the level necessary to invoke the relevant category of contra non
valentem;12 the supreme court has determined that it is necessary for a plaintiff to
prove ill motive or intentional concealment on the physician’s part.13 Ms. Braud has
not presented us with this evidence. Thus, we are constrained from finding that she
proved concealment and ill practices, on Dr. Mayeux’s part, sufficient to suspend
La.R.S. 9:5628’s three-year prescriptive period.
Moreover, even if we were to find that Dr. Mayeux’s conduct suspended
prescription, it would only suspend it until their relationship terminated.14 She last
saw Dr. Mayeux on December 3, 1998. Therefore, at the very latest, Ms. Braud’s
claim prescribed on December 3, 2001. She did not file her claim until January 25,
2002. Accordingly, we must find that her claim, concerning her leg length inequality,
is prescribed under La.R.S. 9: 5628’s three-year period, regardless of Dr. Mayeux’s
misrepresentations.

PRESCRIPTION FOR DIAGNOSIS AND TREATMENT OF INFECTION
Claim against Dr. Mayeux
Ms. Braud developed an infection at the surgical site soon after the surgery. Dr.
Mayeux diagnosed the infection and treated her with antibiotics for several weeks,
after which she thought the infection had resolved. In fact, she continued to treat her
until December 3, 1998. Subsequently, Drs. William Cenac, Victoria Silas, Chad
Millet, and Brobson Lutz, as well as Ms. Braud’s general physician, Dr. Milton
Jolivette, treated her. In 2001, Dr. Millet removed the hip prosthesis from Dr.
Mayeux’s surgery, treated Ms. Braud’s infection, and inserted another prosthesis. Ms.
Braud argues that she did not discover her potential cause of action against Dr.
Mayeux for failure to diagnose and treat the infection until Dr. Millet diagnosed the
infection in April 2001. Again, the date she discovered her cause of action is

12
See e.g., Gover v. Bridges, 497 So.2d 1364 (La.1986); Fontenot v. ABC Ins.
Co., 95-1707 (La. 6/7/96), 674 So.2d 960.
13
See Id.
14
Moses, 788 So.2d 1173.

5

irrelevant in determining whether La.R.S. 9:5628’s three-year prescriptive period bars
her claim. Ms. Braud has not alleged any intentional misconduct or concealment on
Dr. Mayeux’s part concerning the infection which would interrupt the three-year
prescriptive period. It is unclear whether she developed the infection immediately or
a few weeks after her surgery. However, her surgery date was July 21, 1997. She
filed her claim on January 25, 2002, over four years later. Accordingly, her claim
against Dr. Mayeux, concerning her infection, is prescribed.

Claim against Dr. Cenac
Ms. Braud first sought treatment from Dr. Cenac on June 8, 1999. She saw him
approximately a dozen times but was not satisfied with her progress. Thus, she left
his care on August 17, 2000. She filed the instant claim against him on January 25,
2002, alleging that he failed to diagnose and treat the infection that Dr. Millet
ultimately treated. Thus, the three year prescriptive period does not bar her claim
against Dr. Cenac. Nonetheless, she filed her claim more than one year after Dr.
Cenac’s alleged negligent act.
Louisiana Revised Statute 9:5628's one-year prescriptive period “commences
running on the date the injured party discovers or should have discovered the facts
upon which his cause of action is based.”15 In other words, constructive knowledge
is sufficient to trigger the running of prescription, and the plaintiff is “deemed to know
that which he could have learned through reasonable diligence.”16 The heart of the
inquiry is the reasonableness of the plaintiff’s action or inaction. This inquiry requires
consideration of the her education, intelligence, and the gravity of her condition, as
well as the defendant’s conduct.17 Reasonability is a factual determination which an
appellate court cannot disturb, absent a finding of manifest error.18

15
Griffin v. Kinberger, 507 So.2d 821, 823 (La.1987) (citing Lott v. Haley, 370
So.2d 521 (La.1979)).
16
Touchet, 737 So.2d at 825(quoting LaPlaque Corp. v. Chevron U.S.A. Inc.,
93-1597 (La.App. 4 Cir. 5/26/94), 638 So.2d 354, writ denied, 94-2125 (La.
11/11/94), 644 So.2d 395).
17
Campo, 828 So.2d 502.
18
Touchet, 737 So.2d 821.

6

Dr. Cenac testified, and his records corroborate, that he suspected an infection
as early as January 13, 2000. His dictation from that visit states:

She may indeed have a low grade septic hip. She does not wish
to proceed with further workup at this time. I would request that she
follow up with Dr. Jolivet [sic] for her generalized deconditioning.

While Ms. Braud testified that she did not recall Dr. Cenac ever discussing with
her the possibility of an infection, his testimony and records evidence that he did. Dr.
Cenac’s dictation from Ms. Braud’s February 17, 2000 visit states that his plan for her
is to “recommend a thorough evaluation by Dr. Jolivette [her general physician] for
any untoward infective activity.” Dr. Cenac testified that he discussed with her the
possibility of an infection but when he informed her that further surgery would
probably be necessary to treat it, “she would have nothing to do with any further
surgery.”
Ms. Braud’s last visit with Dr. Cenac was on August 17, 2000. On August 30,
2000, she saw Dr. Silas. Her initial evaluation states:

[S]tatus post left total hip replacement with continued pain. She
also has pain in her back and her knee, and it’s difficult to tell how much
of this pain is due to the hip itself or due to degenerative changes in
those other areas. My primary concern at this point would be a [sic]
indolent infection of the hip prosthesis.
Plan: . . . If the joint is infected, it would most likely require a
revision of the components. The other possibility would be suppressive
antibiotics, but that might lead to resistance and would ultimately not
clear the infection.

The trial court found that Ms. Braud had knowledge or constructive knowledge
of Dr. Cenac’s alleged negligence in failing to diagnose and treat the condition in the
latter part of 1999 or, at the latest, when Dr. Silas saw her in August 2000. Ms. Braud
is “deemed to know that which [s]he could have learned through reasonable
diligence.”19 If Ms. Braud had agreed to proceed with a further work-up in order to
confirm the infection, as Dr. Cenac recommended, she would have learned of her
potential cause of action. Thus, we cannot say that the trial court’s conclusion is
manifestly erroneous.

19
Id. at 825(citing LaPlaque, 638 So.2d 354).

7

Accordingly, we sustain its grant of Dr. Cenac’s exception of prescription.

CONCLUSION

We find that Ms. Braud’s claims against Dr. Mayeux, as well as against Dr.
Cenac, are prescribed and affirm the trial court’s judgments granting and dismissal of
their exceptions of prescription. We cast the costs of this appeal on the Plaintiff.

AFFIRMED.

8

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT,

03-1696

MELBA BRAUD

VERSUS

DR. WILLIAM A. CENAC, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER 2003-584
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

**********
Cooks, J., Concurs.

Without evidence of fraudulent concealment, the three years peremptive

period bars plaintiff’s claims against Dr. Mayeux. I am without power to change

the law even if I deem it unfair in this instance, particularly considering that

many patients who are victims of medical malpractice, through no fault of their

own, may not discover the wrongful conduct until long after the law closes the

door on their claims.