Patricia Ann Wherland, Et Ux. v. Carl P. Fastabend, M. D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-903

PATRICIA ANN WHERLAND, ET UX.

VERSUS

CARL P. FASTABEND, M.D.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-1968
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Gremillion, J., dissents and assigns written reasons.

S. Stephen Spring, II
Spring & Spring, LLC
733 East Airport Ave., Suite 104
Baton Rouge, LA 70806
(225) 932-9671
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Patricia Ann Wherland
Fred Wherland

John Gregory Bergstedt
Fraser, Wheeler, & Bergstedt
P. O. Box 4886
Lake Charles, LA 70606
(337) 478-8595
COUNSEL FOR DEFENDANT APPELLEE:
Carl P. Fastabend, M.D.

PETERS, J.

In this medical malpractice case, the plaintiffs, Patricia Ann Wherland and Fred

Wherland, appeal the trial court’s order granting an exception of prescription to the

defendant, Dr. Carl A. Fastabend, and dismissing their claims against the doctor. For

the following reasons, we affirm the trial court’s judgment in all respects.

DISCUSSION OF THE RECORD

Fred Wherland and Patricia Ann Wherland are husband and wife. The petition

filed against Dr. Fastabend establishes that Mrs. Wherland was injured in an

automobile accident in the summer of 1996, and sometime thereafter she began

treatment with Dr. Fastabend for the injuries sustained in the accident. The doctor

prescribed Xanax for her anxiety associated with the accident and, during his

treatment of Ms. Wherland through November of 2004, continued to prescribe Xanax.

When Ms. Wherland last saw Dr. Fastabend in November of 2004, he refused to

increase her prescription dosage. In January of 2005 she visited another physician but,

because his treatment did not seem to be helping, she attempted to return to Dr.

Fastabend in February of 2005. At that time, she was informed by Dr. Fastabend’s

office representative that he would no longer see her and would no longer prescribe

any Xanax to her.

While the plaintiffs’ petition does not reference the date they submitted their

claims to a medical review panel pursuant to the Louisiana Medical Malpractice Act,

La.R.S. 40:1299.41-40:1299.49, we know from the briefs filed by both sides that it

was submitted January 6, 2006. Additionally, the exception of prescription filed by

Dr. Fastabend, as well as the briefs filed by the parties, establish that the panel

returned its opinion in Dr. Fastabend’s favor on April 22, 2008, and that the plaintiffs

received the opinion on April 25, 2008. The plaintiffs then filed suit against Dr.

Fastabend on April 22, 2009.

Dr. Fastabend responded to the suit by filing an exception of prescription

pursuant to La.R.S. 9:5628. The litigants agreed to submit the matter on the record

and briefs, and the trial court granted the exception of prescription. In their sole

assignment of error, the plaintiffs assert that the trial court erred in granting the

exception of prescription.

OPINION

Louisiana Code of Civil Procedure Article 931 provides that evidence may be

introduced to establish or defeat an exception of prescription. In this case, the

litigants submitted the prescription issue to the trial court on briefs and introduced no

evidence to support their positions, although they did agree on the dates associated

with the medical review panel submission.1 In the absence of evidence, the trial court

must decide an exception of prescription based upon the facts alleged in the petition,

accepting all allegations as true. Cichirillo v. Avondale Industries, Inc., 04-2894 (La.

11/29/05), 917 So.2d 424.

Prescription in a medical malpractice case is governed by La.R.S. 9:5628. That

statute provides in pertinent part that “[n]o action for damages for injury or death

against any physician . . . 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.” La.R.S.

9:5628(A). Additionally, “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 Louisiana Medical Malpractice Act requires that all claims against

qualified health care providers be instituted by filing a request for review with the

Division of Administration. La.R.S. 40:1299.47. During the pendency of the review,

prescription is suspended, and that suspension lasts until 90 days after the claimant or

1
Dr. Fastabend’s April 26, 2010 brief addressing his argument on the exception of
prescription lists five exhibits that he “would offer and introduce [as] evidentiary exhibits,” none of
those documents were attached to the brief or introduced into evidence at the hearing.
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her attorney is notified of the medical review panel’s opinion by certified mail.

La.R.S. 40:1299.47(A)(2)(a). “The period of suspension is not counted toward

accrual of prescription. Prescription commences to run again upon the termination of

the period of suspension.” La.Civ.Code art. 3472. This contrasts with the interruption

of prescription, the effect of which is to commence prescription “to run anew from the

last day of interruption.” La.Civ.Code art. 3466.

In considering the appeal before us, we must first determine who had the

burden of proof on this exception. “Ordinarily, the exceptor bears the burden of proof

at the trial of the peremptory exception. However, if prescription is evident on the

face of the pleadings, the burden shifts to the plaintiff to show the action has not

prescribed.” Carter v. Haygood, 04-646, pp. 8-9 (La. 1/19/05), 892 So.2d 1261, 1267

(citations omitted).

The plaintiffs’ petition establishes a filing date of April 22, 2009. For the

purpose of this exception, we accept as true the allegations of the petition that Mrs.

Wherland last saw Dr. Fastabend in November of 2004 and that her last contact with

his office was in February of 2005. Additionally, for the purpose of this analysis, we

accept as true the agreed-upon dates associated with the medical review panel.

Because their suit was filed more than four years from the last time Mrs.

Wherland had contact with Dr. Fastabend’s office, it is evident that the plaintiffs’

claims have prescribed on the face of the petition. La.R.S. 9:5628. Thus, the burden

shifted to the plaintiffs to show that their claims had not prescribed. To that end, the

agreed-upon dates found in the litigants’ briefs establish that the plaintiffs timely

requested a medical review panel pursuant to La.R.S. 40:1299.41 and that the ninety-

day suspensive period provided for in La.R.S. 40:1299.47(A)(2)(a) began to run on

April 25, 2008. Thus, prescription on their claims began to run again on July 25, 2008.

Assuming Mrs. Wherland last contacted Dr. Fastabend’s office on February 28,

2005, by the time the plaintiffs requested the medical review panel, 312 days had
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lapsed for prescription purposes. Thus, they had only fifty-three days remaining to

file suit when prescription began to run again on July 25, 2008. The April 22, 2009

filing was clearly in excess of the fifty-three day limit.

The plaintiffs argue in brief that they did not discover their claims for damages

until sometime between Mrs. Wherland’s last contact with Dr. Fastabend’s office in

February of 2005 and January 6, 2006, when they submitted their claims to a medical

review panel. They assert that under the doctrine of contra non valentem, which is

codified in La.R.S. 9:5628, prescription did not begin to run until they discovered Dr.

Fastabend’s act, omission, or neglect. However, in making this argument, the

plaintiffs ignore the fact that their claim has prescribed on the face of their petition,

that the burden shifted to them to establish a date of discovery such that the doctrine

can be evaluated, and that the record includes no evidence of a date of discovery. We

find no merit in this argument.

Finally, as an alternate argument, the plaintiffs assert that prescription was

interrupted when the matter was submitted to the medical review panel and that it

began to run anew ninety days after receipt of the panel’s decision. We have already

addressed the fact that, pursuant to La.R.S. 40:1299.47(A)(2)(a), prescription was

suspended during the pendency of the analysis of the claim by the medical review

panel and, as provided by La.Civ.Code art. 3472, began to run again when the

suspension was terminated. We find no merit in this argument.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of Dr. Carl P.

Fastabend’s exception of prescription and dismissal of the plaintiffs’ claims. We

assess all costs of this appeal against Fred Wherland and Patricia Ann Wherland.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-903

PATRICIA ANN WHERLAND, ET UX.

VERSUS

CARL P. FASTABEND, M.D.

GREMILLION, Judge, dissents and assigns written reasons.

I respectfully dissent, first of all, because the record before us is deficient. It

contains a petition and some briefs, but no evidence.

A trial court can determine if a medical malpractice claim has prescribed

once it knows the following four dates:

1. The date the alleged malpractice occurred and/or was discovered;

2. The date the plaintiff filed a request for review by a medical review panel;

3. The date the plaintiff’s attorney was notified of the medical review

panel’s opinion; and

4. The date suit was filed.

The defendant/exceptor bears the burden of proof with regard to this

peremptory exception, and it should not be shifted to the plaintiff unless all four of

those dates are in the petition.

The date of the alleged malpractice and/or its discovery is not in the petition.

The majority settles on February 28, 2005 as the last possible date for this event

based on the allegations of the petition that the plaintiff’s last contact with the

doctor was in February 2005. We cannot, however, say conclusively that the

plaintiff’s discovery of this alleged malpractice coincided with either her last

treatment by and/or contact with the doctor. Her claim is that Dr. Fastabend over

prescribed addictive medication to her. Accordingly, unless either Dr. Fastabend

or someone in his employ told her that he was over-prescribing medication at the

time of the last visit or the last contact, those dates are simply not dispositive. It

seems far more likely to this dissentor that she would have discovered this alleged

malpractice once it was suggested to her by other healthcare providers after she

was no longer treating with Dr. Fastabend.

The record discloses neither the date the medical review panel was requested

nor the date the plaintiff was notified of the medical review panel’s opinion. As a

matter of pragmatics, the majority relies on dates contained in various memoranda

filed by the litigants at the trial court. In so doing, the majority takes the position

that what it calls the “agreed upon dates” in those memoranda would be consistent

with the evidence if that evidence existed in this record. I subscribe to the belief

that, somewhere along the way, either the trial court and/or this court should

require the necessary evidence.

This court has refused to even consider exhibits attached to memoranda that

were not technically introduced into evidence. See Reese v. DresserValve Ind., 10-

241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406. We have also refused to consider

facts asserted in briefs, because briefs are not part of the record on appeal. Id. We

recently affirmed these principles in Brielle’s Florist & Gifts, Inc. v Trans Tech,

Inc., 11-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833.

The defendant’s burden to prove that this claim prescribed would have

shifted to the plaintiff had the petition clearly set forth the four necessary dates.

Because the petition, in fact, only set out one of those four dates, the burden never

shifted away from the defendant. Obviously, without a single piece of evidence

presented in this record, the defendant’s burden was not met. Accordingly, I

would have reversed the trial court.
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