In Re: Medical Review Panel Claim of Don Clayton Wright, Et Ux. v. Christus Health Center Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-970

IN RE: MEDICAL REVIEW PANEL CLAIM OF
DON CLAYTON WRIGHT, ET UX.

VERSUS

CHRISTUS HEALTH CENTER LOUISIANA, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 248,353
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

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

AFFIRMED.

James R. Shelton
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
Gary Jones, M.D.
Craig Manzer, N.P.

Randall E. Hart
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Don Clayton Wright
Patricia C. Wright

AMY, Judge.

The plaintiff and his wife filed an initial medical malpractice claim against a

number of health care providers alleging various negligent acts resulting in a stroke

that caused partial paralysis. Thereafter, the plaintiffs filed a supplemental and

amending complaint, adding additional health care providers as defendants and

expanding the alleged period of negligence. Two of the additional defendants filed

an exception of prescription, noting that the dates of the purported negligence

occurred more than one year prior to the filing of the claim. The trial court granted

the exception of prescription. The plaintiffs appeal. For the following reasons, we

affirm.

Factual and Procedural Background

The record indicates that, on November 24, 2010, Don Wright began a

period of hospitalization due to endocarditis. Although Mr. Wright was released

from the hospital on December 6, 2010, he continued to suffer difficulties and, on

December 15, 2010, reported to the emergency room of Christus St. Francis

Cabrini Hospital with stroke symptoms. Mr. Wright alleges that, by December 16,

2010, his condition continued to deteriorate and resulted in a seizure and the

discovery of a major left-side bleed, allegedly due to the negligent use of Heparin.

Mr. Wright was ultimately discharged into the care of a nursing facility due to

what he refers to as a catastrophic and permanent brain injury caused by the series

of events. Notably, Mr. Wright is paralyzed on his left side and is unable to

verbally communicate.

By letter dated December 15, 2011, Mr. Wright and his wife filed a request

for the formation of a Medical Review Panel with the Commissioner of

Administration, for consideration of the allegations of medical malpractice against

a number of health care providers. Subsequently, by letter dated July 26, 2013, the

plaintiffs filed a First Supplemental and Amending Complaint Letter, which they

stated was intended “to completely replace the previously filed complaint.” By

that letter, the plaintiffs generally asserted that Mr. Wright “suffered a massive

stroke and hemiplegia, resulting in severe impairment.” Although they were not

among the defendants listed in the initial complaint letter, the plaintiffs added

Nurse Practitioner Craig Manzer and Dr. Gary P. Jones as defendants in the

amended complaint. With regard to these two defendants, the plaintiffs alleged

that:

On November 30, 2010, Craig Manzer, N.P. saw Mr. Wright on
behalf of Dr. Robert DeWitt – the cardiothoracic surgeon to whom
Mr. Wright had been referred. Craig Manzer, N.P., supervised by Dr.
Robert DeWitt and/or Gary P. Jones, failed to 1) discuss treatment
options with Mr. Wright, including immediate surgery to address the
large mitral valve vegetations and/or 2) immediately refer Mr. Wright
to a qualified cardiothoracic surgeon capable of providing [sic] with
information concerning IE and the treatment options available,
including immediate surgery and the risks of delayed treatment,
including septic emboli.

Dr. Gary P. Jones saw Mr. Wright on December 4, 2010. Dr.
Jones failed to discuss treatment options with Mr. Wright, including
immediate surgery to address the large mitral valve vegetations and
the risks of delayed treatment, including septic emboli.

(Emphasis added.)

In September 2013, two other defendants in the matter filed a “Petition to

Allot Docket Number Under LA. R.S. 40:1299.47” so that exceptions or defenses

could be resolved by the trial court without completion of the review process. See

La.R.S. 40:1299.47(B)(2)(a) 1 ; La.R.S. 40:1299.47(C)(6). 2 The trial court

1
In pertinent part, La.R.S. 40:1299.47(B)(2)(a) provides that:

A health care provider, against whom a claim has been filed under the
provisions of this Part, may raise . . . any exception or defenses available pursuant

2

thereafter assigned a docket number for the purpose of filing motions and/or

exceptions in the Medical Review Panel Proceeding.

As pertinent to the matter now before the court, Mr. Manzer and Dr. Jones

filed an exception of prescription, asserting that the allegations contained in the

Medical Review Panel complaint had prescribed against them. The defendants

pointed out that the complaint alleged November 30, 2010 and December 4, 2010

acts by them, respectively. Yet, the initial complaint was filed on December 15,

2011 (in which they were not named as defendants), and the supplemental and

amending complaint was not filed until July 26, 2013. In opposition, the plaintiffs

argued that, although the initial claim was not filed until more than one year after

the dates of negligence of these two defendants, the plaintiffs did not discover the

purported negligence until December 15, 2010, when Mr. Wright suffered the

massive stroke and that since December 15, 2011, the claim was maintained

against a number of defendants. The plaintiffs also asserted that their cause of

action did not, in fact, even arise until December 15, 2010 since damages were not

sustained until the time of the stroke. Further, the plaintiffs suggested that,

although Mr. Manzer and Dr. Jones were not added as defendants until the July

2013 supplemental claim, the initial filing suspended the running of prescription

pursuant to La.R.S. 40:1299(A)(2)(a), insofar as they are allegedly joint tortfeasors

with the various defendants originally named.

to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time
without need for completion of the review process by the medical review panel.
2
La.R.S. 40:1299.47(C)(6) provides that: “The party aggrieved by the alleged failure or
refusal of another to perform according to the provisions of this Section may petition any district
court of proper venue over the parties for an order directing that the parties comply with the
medical review panel provisions of the medical malpractice act.”

3

Following a hearing, the trial court found merit in the exception of

prescription and dismissed the plaintiffs‟ claim against defendants Manzer and

Jones. In particular, the trial court determined that, to the extent the plaintiffs

alleged negligent acts on November 30, 2010 and December 4, 2010, the plaintiffs‟

claim had already prescribed by the time of the filing of the December 15, 2011

claim form. Citing Masters v. Field, 27,974 (La.App. 2 Cir. 1/24/96), 666 So.2d

1333, the trial court concluded that the allegation of joint and solidary status could

not suspend the previously prescribed claim against the defendants. The trial court

subsequently denied the plaintiffs‟ motion for reconsideration and new trial.

The plaintiffs appeal, asserting that the trial court erred in: 1) finding that the

plaintiffs‟ cause of action arose on November 30, 2010 and December 4, 2010

respectively; 2) finding that the cause of action arose before the plaintiffs suffered

any damages; and 3) finding that the plaintiffs‟ request for a medical review panel

did not interrupt prescription as to the two additional defendants.

Discussion

Louisiana Revised Statutes 9:5628(A) sets forth the prescriptive periods

applicable to medical malpractice actions as follows:

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.

4

Furthermore, as is pertinent in this case, La.R.S. 40:1299.47(A)(2)(a)

provides that:

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 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.)

The supreme court has instructed that medical malpractice actions are

governed by the specific provisions of the Medical Malpractice Act regarding

prescription and the suspension of prescription to the exclusion of the general

codal articles on interruption of prescription. See Warren v. La. Med. Mut. Ins.

Co., 07-0492 (La. 6/26/09), 21 So.3d 186 (on rehearing) (citing Borel v. Young,

07-0419 (La. 7/1/08), 989 So.2d 42 (on rehearing); LeBreton v. Rabito, 97-2221

(La. 7/8/98), 714 So.2d 1226). See, e.g., La.Civ.Code art. 3462. In Warren, 21

So.3d 186, the supreme court confirmed that this dictate prohibits the application

5

of a general codal article such as La.Code Civ.P. art. 1153 3 to a medical

malpractice case.

With regard to the applicable burden of proof, it is the party urging the

exception of prescription who bears the burden of proving facts to support the

exception unless the petition has prescribed on its face. Duckworth v. La. Farm

Bureau Mut. Ins. Co., 11-2835 (La. 11/2/12), 125 So.3d 1057. In this latter case,

the burden shifts to the plaintiff. Id. “Although evidence may be introduced to

support or controvert any objection pleaded, in the absence of evidence, an

objection of prescription must be decided upon the facts alleged in the petition with

all allegations accepted as true.” Id. at 1072. See also La.Code Civ.P. art. 931. In

the event that evidence is introduced at the hearing on the exception, an appellate

court reviews the trial court‟s findings of fact pursuant to the manifest error-clearly

wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09),

16 So.3d 1065.

Starting Date of Prescription

In their first several assignments of error, the plaintiffs challenge the trial

court‟s determination that the prescriptive period applicable to defendants Manzer

and Jones commenced on November 30 and December 4, 2010, respectively. The

plaintiffs suggest that, instead, the prescriptive period commenced on December

15, 2010, the time when Mr. Wright suffered a massive stroke and sustained

damages. Since the initial complaint was filed on December 15, 2011, the

plaintiffs allege, the initial complaint was timely.

3
Louisiana Code of Civil Procedure Article 1153 provides that: “When the action or
defense asserted in the amended petition or answer arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment relates
back to the date of filing the original pleading.”

6

As noted, the amended complaint named defendants Manzer and Jones for

the first time and was filed in July 2013. It alleged negligent acts/omissions of

November 30 and December 4, 2010 against these defendants and did not allege

discovery of that alleged negligence at any subsequent point. Thus, on its face, the

complaint was prescribed as to these defendants well before July 2013. Too, the

original complaint was filed on December 15, 2011, more than one year from the

“alleged act, omission, or neglect” by these defendants as described in La.R.S.

9:5628(A). In light of this patent prescription, and in light of no allegations in the

complaint that discovery of this conduct was subsequent to that date, it became the

plaintiffs‟ burden of demonstrating that the filing was “within one year from the

date of discovery of the alleged act, omission, or neglect” as further provided for in

La.R.S. 9:5628(A).

Here, the plaintiffs asserted that, although the pertinent dates of alleged

negligence occurred on November 30 and December 4, 2010, the date of discovery

of the alleged act could not have been before the December 15, 2010 massive

stroke from which the plaintiffs alleged that all damages flow. In their brief, the

plaintiffs alleged that the various defendants‟ negligent conduct culminated in that

injury. Thus, the plaintiffs argue, this alternative, commencement of prescription

date from “discovery,” required a finding that prescription began to run against

defendants Manzer and Jones on December 15, 2010.

However, given the fact that the complaint against the defendants was

prescribed on its face, we do not disturb the determination that the claim was

otherwise prescribed. Instead, the plaintiffs have failed in their evidentiary burden

of proving that the petition was filed “within one year from the date of discovery of

the alleged act, omission, or neglect” as is permitted by La.R.S. 9:5628(A).

7

Critically, the plaintiffs filed no evidence in opposition to the exception of

prescription that illuminated Mr. Wright‟s condition between the dates of

purported negligence by these actors and the stroke of December 15, 2010.

Neither did they present evidence regarding their understanding of Mr. Wright‟s

condition at or regarding when they “discovered” any correlation between the

acts/omissions of defendants Manzer and Jones and the later occurring stroke.

Rather, the only exhibits introduced at the hearing were the jointly filed complaint

letters.

Further, we are mindful that an exception of prescription must be decided

upon the facts alleged in the petition with all allegations accepted as true in the

event that evidence is not submitted. See Duckworth, 125 So.3d 1057. However,

the present complaints do not support a finding in favor of the plaintiffs. Instead,

neither the initial complaint nor the amended complaints allege facts regarding the

discovery of any negligence that occurred prior to December 15, 2010. Rather, in

addition to naming the various instances of allegedly negligent conduct, the

plaintiffs alleged only generally that as a result of the substandard care provided,

Mr. Wright “suffered a massive stroke and hemiplegia, resulting in severe

impairment.” We find that, under the bare facts and allegations contained in the

record, the trial court‟s ruling is supported.

Similarly, we find no merit in the plaintiffs‟ contention that the underlying

cause of action did not arise until December 15, 2010. Obviously, La.Civ.Code

art. 3492 provides that prescription of a delictual action begins “to run from the

day injury or damage is sustained.” However, La.R.S. 9:5628(A) more specifically

provides periods applicable to the filing of medical malpractice claims. As

pertinent in this case, the statute provides a period of one year within the “alleged

8

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

alleged act, omission, or neglect[.]” Id. (Emphasis added.) The statute pointedly

references the “alleged act” and the “discovery of the alleged act[.]” Id. With

regard to the discovery rule, the supreme court has explained within the context of

a medical malpractice case that “determination of when prescription commences

under the discovery rule depends on at least two primary factors: (1) the date on

which the plaintiff gained actual or constructive knowledge of „facts indicating to a

reasonable person that he or she is the victim of a tort,‟ . . . and (2) the date on

which the „tortious act actually produces damages.‟” Bailey v. Khoury, 04-0620, p.

24 (La. 1/20/05), 891 So.2d 1268, 1284 (quoting Harvey v. Dixie Graphics, Inc.,

593 So.2d 351 (La.1992), and Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d

502). The supreme court noted that “[b]oth knowledge and damages must be

present for prescription to commence[.]” Bailey, 891 So.2d at 1284.

Again, and although the plaintiffs reference the December 15, 2010 stroke as

both the date on which they acquired knowledge of the purported malpractice and

the date on which damages were produced, we find that the exception of

prescription was appropriately entered. Simply, the complaint letters list a series

of allegedly negligent events and a date on which a culminating event occurred.

The record otherwise lacks evidence that would clarify the point of discovery, i.e.,

knowledge and damages, by the plaintiffs, reasonable or otherwise.

Accordingly, we find that the plaintiffs‟ assignments regarding the

commencement of prescription lack merit.

9

Joint and Solidary Obligors

Finally, the plaintiffs contend that, although defendants Manzer and Jones

were not added to the claim until July 2013, the initial filing of the complaint in

December 2011, suspended prescription against all joint and solidary obligors

pursuant to La.R.S. 40:1299.47(A)(2)(a), as set forth above. However, as observed

by the trial court, this principle does not apply if a claim against a defendant had

prescribed by the time of the original complaint. In so ruling, the trial court relied

upon Masters, 666 So.2d 1333, a case in which the second circuit determined that

the filing of a medical malpractice suit neither interrupted nor suspended a

prescriptive period that had already run against a newly added defendant.

Although the plaintiffs suggest that Masters is distinguishable, as the defendants in

that case were added in excess of three years after the tortious conduct, we do not

find that this distinction is meaningful as applicable in this case. Instead, the

import of Masters is mirrored in subsequently-rendered supreme court

jurisprudence indicating that application of such relation-back theories to an

untimely filed petition/claim would circumvent the purposes of the specific

legislative mandates of La.R.S. 9:5628 and La.R.S. 40:1299.47. See, e.g., Warren,

21 So.3d 186; Borel, 989 So.2d 42; and LeBreton, 714 So.2d 1226.

Again, having found no error in the trial court‟s determination that the

plaintiffs‟ claim against defendants Manzer and Jones was prescribed by the time

of the initial December 15, 2011 claim, we find no merit in the plaintiffs‟

assignment of error regarding suspension of their claim by the initial filing against

joint and solidary tortfeasors.

10

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this proceeding are assigned to the plaintiffs-appellants, Don C. Wright and

Patricia C. Wright.

AFFIRMED.

11