Daniel P. McCauley v. Dr. Malcolm Stubbs

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-933

DANIEL P. MCCAULEY

VERSUS

MALCOLM STUBBS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20170285
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

AFFIRMED.

Jonathan C. Vidrine
510 West Magnolia Street
P.O. Drawer 1019
Ville Platte, LA 70586
(337) 363-2772
COUNSEL FOR PLAINTIFF/APPELLANT:
Daniel P. McCauley

Michael W. Adley
Judice & Adley
926 Coolidge Boulevard
P.O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. Malcolm Stubbs

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In August of 2004, Plaintiff, Daniel McCauley, injured his right knee in a

work-related accident. Plaintiff began receiving treatment from Dr. Malcolm

Stubbs in connection with his knee injury. On September 28, 2004, Dr. Stubbs

performed a right knee arthroscopy and debridement of the chondromalacia of the

right patella.

In early 2010, Plaintiff returned to Dr. Stubbs complaining of renewed pain

in his right knee. On February 12, 2010, Dr. Stubbs performed a right knee

arthroscopy with patellofemoral chondroplasty and debridement. Despite that

procedure, Plaintiff continued to complain of pain in his right knee. On June 11,

2010, Dr. Stubbs performed a right knee arthroscopy with open tibial tubercle

anterior medialization osteotomy and transfer.

Plaintiff still complained of continued right knee pain, and on March 20,

2013, Dr. Stubbs performed a total right knee arthroplasty. Plaintiff continued to

treat with Dr. Stubbs until January of 2015. He claimed during this entire period

and continuing to the present he has suffered from pain in his right knee.

On August 17, 2016, Plaintiff filed a medical malpractice claim against Dr.

Stubbs. In the complaint, Plaintiff alleged Dr. Stubbs committed malpractice in

connection with the osteotomy procedure performed on June 11, 2010 and in

connection with the total right knee arthroplasty performed on March 20, 2013. In

response to the complaint, Dr. Stubbs filed an exception of prescription,

contending that Plaintiff’s claim was prescribed. A hearing on the exception was

held on March 1, 2017.

Plaintiff argued prescription was suspended until January of 2015, when the

doctor-patient relationship was terminated. He argued prescription began to run on

that date and he had one year to bring his malpractice claim from the date the
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doctor-patient relationship ended or one year from when he discovered the act of

malpractice as long as that discovery was made inside of the three-year

prescriptive period under the rule of contra non valentum. Plaintiff claimed he did

not discover the acts of malpractice until April 29, 2016, and thus, had one year

from that date to file his claim.

Following arguments, the trial court allowed the parties additional time to

submit memoranda. The trial court granted the exception of prescription, finding

prescription runs from one year of the date of discovery only when the claim is

brought within three years of the act of the alleged malpractice. Plaintiff did not

bring the claim within three years, nor within one year after the doctor-patient

relationship ended. Accordingly, the trial court granted the exception of

prescription. On May 8, 2017, a final judgment granting the exception of

prescription was signed by the trial court. This appeal followed, wherein Plaintiff

asserts the trial court erred in granting the exception of prescription. For the

following reasons, we affirm.

ANALYSIS

This court in Allain v. Tripple B Holding, LLC, 13-673, p. 9-10 (La.App. 3

Cir. 12/11/13), 128 So.3d 1278, 1285, discussed the appellate standard of review

for an exception of prescription:

Prescription is a peremptory exception which is provided for in
La.Code Civ.P. art. 927. Evidence in support or contravention of the
exception may be introduced if the grounds are not apparent from the
petition. La.Code Civ.P. art. 931. An appellate court reviews the
exception under the manifest error standard of review if evidence is
introduced in support or contravention of the exception. Dugas v.
Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d
826. If not, the appellate court “simply determines whether the trial
court’s finding was legally correct.” Id. at 830. Generally, the
burden of proof lies on the party pleading the exception of
prescription. Id. However, if it is apparent from the face of the
pleadings that prescription has occurred, the burden shifts to the
plaintiff to show that the action has not prescribed. Id.

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In this case, evidence was introduced on the exception of prescription in the trial

court. Therefore, the manifest error standard of review applies.

Louisiana Revised Statutes 9:5628 sets forth the prescriptive period for

medical malpractice claims, and provides:

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.

Essentially, a medical malpractice claim must be filed within one year from

the date of the alleged malpractice, or within one year of the discovery of the

malpractice. Also, Section 5628 sets forth a final three-year cut-off date for

medical malpractice cases to be filed, regardless of the date of discovery of the

alleged act, omission, or neglect.

The three-year prescriptive period elapsed before Plaintiff filed his medical

malpractice claim against Dr. Stubbs. The alleged acts of malpractice occurred on

June 11, 2010 and March 20, 2013. The claim was not filed until August 17, 2016,

which is in excess of three years from the alleged acts of malpractice. Therefore,

the complaint on its face is prescribed.

In his brief before this court, Plaintiff argues his continuing treatment by Dr.

Stubbs until January of 2015, suspended the running of the three-year prescriptive

period. This argument invokes the third category of the doctrine of contra non

valentem, which if applicable serves to suspend the running of prescription. This

third category, often referred to as the continuing treatment exception, provides the

running of the prescriptive period is suspended “where the debtor himself has done

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some act effectually to prevent the creditor from availing himself of his cause of

action.” Whitnell v. Menville, 540 So.2d 304, 308 (La.1989) (citing Plaquemines

Parish Commission Council v. Delta Dev. Co., 502 So.2d 1034 (La.1987); Corsey

v. State Dep’t. of Corrections, 375 So.2d 1319 (La.1979)).1

Plaintiff cites Carter v. Haygood, 04-646, p. 8 (La. 1/19/05), 892 So.2d

1261, 1269, for the proposition that “[i]n certain circumstances, a doctor’s

continuing professional relationship with his patient might give rise to the

suspension or interruption of prescription. Trainor v. Young, 561 So.2d 722, 726-

27 (La.App. 2nd Cir.), writs denied, 567 So.2d 1124, 1125 (La.1990).” As Dr.

Stubbs notes in his brief, the Carter case stands only for the proposition that the

third category of contra non valentem, i.e., continuing treatment, suspends

prescription only when there is proof of fraud, concealment, misrepresentation or

ill practice on the part of the defendant physician.

This court in Braud v. Cenac, 03-1696 (La.App. 3 Cir. 7/14/04), 879 So.2d

896, writ denied, 04-2101 (La. 11/15/04), 887 So.2d 484, addressed a similar

argument raised by a plaintiff, who relied on the continuing treatment category of

contra non valentem to avoid the running of the prescriptive period. This court

engaged in the following discussion on that issue:

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The four categories of the judicially created doctrine of contra non valentem are:

(1) where there was some legal cause which prevented the courts or their officers
from taking cognizance of or acting on the plaintiff's action;

(2) where there was some condition coupled with the contract or connected with
the proceedings which prevented the creditor from suing or acting;

(3) where the debtor himself has done some act effectually to prevent the creditor
from availing himself of his cause of action;

(4) where the cause of action is not known or reasonably knowable by the
plaintiff, even though his ignorance is not induced by the defendant.

Whitnell, 540 So.2d at 308.

Categories 1 and 2 clearly have no application in this case and the Louisiana Supreme
Court in Borel v. Young, 07-419 (La. 11/27/07), 989 So.2d 42 (on rehearing), found that
Category 4, known as the discovery rule, has no application to the three-year prescriptive period
of La.R.S. 9:5628.
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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.’” Prescription will not run against a person
who is unable to act, which means unable to file suit. The contra non
valentem doctrine contemplates four different scenarios in which a
person is 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.

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. 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. 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.
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. 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. We agree with this
interpretation of La.R.S. 9:5628 and, therefore, proceed to evaluate
Dr. Mayeux’s conduct under this standard.

....

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 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; the supreme court has
determined that it is necessary for a plaintiff to prove ill motive or
intentional concealment on the physician’s part. 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.
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Id. at 901-02.

Likewise, the court in Jenkins v. Dyess, 35,923 (La.App. 2 Cir. 6/19/02), 821

So.2d 722, writ denied, 02-1984 (La. 11/8/02) 828 So.2d 1118, addressed a similar

situation as argued herein, where the plaintiff in that case alleged his continuing

treatment by the defendant physician should have suspended the three-year

prescriptive period. The court in Jenkins stated, “[i]t is only when the physician

withholds or conceals information ‘intentionally, fraudulently or by ill practice’

that the Statute’s three-year bar does not apply.” Id. at 728-29.

Similarly, in Claim of Aron, 96-2665 (La.App. 4 Cir. 5/21/97), 695 So.2d

553, the appellate court therein also found the physician must be guilty of

concealment, misrepresentation, fraud or ill practices for the continuing treatment

exception of contra non valentem to apply. The court stated:

Although the Louisiana Supreme Court has often failed to
declare whether the third contra non valentem exception applies, as in
Rajnowski v. St. Patrick’s Hospital, 564 So.2d 671 (La.1990), that
court has indicated that a physician’s conduct must rise to the level of
concealment, misrepresentation, fraud, or ill practices under this
exception. Fontenot, supra at p. 6, 674 So.2d at p. 963. Assuming
that the third category of contra non valentem does apply, there are no
facts or circumstances in the record to suggest that [the defendant
physician’s] conduct rose to the level of concealment,
misrepresentation, fraud or ill practices.

Id. at 556-57.

The jurisprudence establishes that, to defeat a well-founded exception of

prescription, it is “necessary for a plaintiff to prove ill motive or intentional

concealment on the physician’s part.” Without such proof the exception must be

maintained.

“Generally, the burden of proof lies on the party pleading the exception of

prescription.” Allain, 128 So.3d at 1285. However, if it is apparent from the face

of the pleadings that prescription has occurred, the burden shifts to the plaintiff to

show that the action has not prescribed. Id. As noted above, the complaint filed by

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Plaintiff on its face is prescribed. Therefore, the burden shifted to Plaintiff to

prove a suspension of prescription. In this case, that requires proof that Dr.

Stubbs’ conduct rose to the level of concealment, misrepresentation, fraud, or ill

practices.

Our review of the record shows Plaintiff did not meet his burden. There was

no proof presented by Plaintiff that he was denied access to his medical records or

was prevented from seeking other medical treatment. As Dr. Stubbs notes in brief,

Plaintiff’s progress report of January 15, 2014, suggests that a second opinion with

Dr. Duval may be considered. Without the required proof of fraud,

misrepresentation or intentional concealment on Dr. Stubbs’ part, prescription

could not be suspended, and the trial court did not err in granting the exception of

prescription.

DECREE

For the foregoing reasons, the judgment of the trial court granting the

exception of prescription is affirmed. All costs of this appeal are assessed to

plaintiff-appellant, Daniel McCauley.

AFFIRMED.

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