In Re: Colleen McDaniel

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-920

IN RE: COLLEEN MCDANEL

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SUPERVISORY WRIT FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 262,924
HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

WRIT DENIED.

Brandon A. Sues
Eugene J. Sues
Sarah S. Couvillon
Gold, Weems, Bruser, Sues, & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANT/APPLICANT:
John S. McCabe, M.D.

Mary K. Beaird
Attorney at Law
303 East Texas Street
Leesville, LA 71446
(337) 944-0299
COUNSEL FOR PLAINTIFF/RESPONDENT:
Colleen McDanel

SAUNDERS, Judge.

Relator, Dr. John S. McCabe, seeks supervisory writs from the judgment of

the Ninth Judicial District Court, Parish of Rapides, the Honorable George Clarence

Metoyer, Jr., presiding, which denied Relator’s exception of prescription.

STATEMENT OF THE CASE

This case involves a medical malpractice action which is still pending before

a medical review panel. On September 6, 2016, Relator performed an abdominal

panniculectomy with abdominoplasty, or tummy tuck, on Plaintiff, Colleen

McDanel. On September 12, 2016, Plaintiff had a follow-up visit with Relator at

which time Relator allegedly yanked the tubes out of Plaintiff’s stomach, causing

her severe pain and emotional anguish. Plaintiff also alleges that when she went to

have her stitches removed on September 21, 2016, Relator yanked the stitches so

aggressively that he pulled a chunk of her skin off with a stitch. Plaintiff contends

that due to Relator’s rudeness and roughness with removing her stiches, she began

seeing another physician, Dr. Herbert McGuire, for post-operative treatment. Dr.

McGuire, who works in the same facility as Relator, advised Plaintiff that she should

undergo a follow-up scar revision surgery because she had a “prominent dogear with

some skin folds over the dogear.” Because Dr. McGuire and Relator work in the

same facility, Plaintiff decided to obtain an opinion from a physician who does not

work with Relator. On April 4, 2018, Plaintiff began to treat with Dr. Mary Tschoi

Kim at University Health of Shreveport. Dr. Kim advised Plaintiff that she needed

to undergo a revision surgery and that the tummy tuck surgery should never have

been performed on Plaintiff due to a preexisting scar located on her right abdomen.

On October 11, 2017, Plaintiff filed a medical review panel complaint with

the Louisiana Patients’ Compensation Fund (PCF) against Relator and Rapides

Regional Medical Center alleging that her stomach is deformed and has not healed

properly due to Relator’s negligence. That complaint was deemed invalid on

December 22, 2017, due to Plaintiff’s failure to pay the filing fee. However, Plaintiff

filed a second complaint with the PCF on January 30, 2018. As is permitted by

La.R.S. 40:1231.8(B)(2)(a), Relator filed an exception of prescription in the trial

court while the case is still pending before the PCF. The trial court denied Relator’s

exception of prescription, and Relator now seeks review of that ruling.

SUPERVISORY RELIEF

The denial of a peremptory exception is not appealable absent irreparable

injury, but the denial can be reviewed on supervisory writs where it fits the criteria

of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396

So.2d 878 (La.1981); Reilly v. State, 533 So.2d 1341 (La.App. 3 Cir. 1988), writ

denied, 536 So.2d 1219 (La.1989).

ON THE MERITS

Relator asserts that the trial court erred when it denied his exception of

prescription. Relator notes that pursuant to La.R.S. 9:5628(A), medical malpractice

actions must be filed within one year from the date of the alleged negligent act or

within one year of the date of discovery of the alleged negligent act, provided that

the claims be filed no later than three years from the date of the alleged negligent act

in order to be considered timely. In the instant case, Relator contends that since

Plaintiff’s claim arises out of alleged acts of malpractice that occurred when Relator

provided medical care to Plaintiff in September 2016, the one-year prescriptive

period expired in September 2017. Thus, Relator argues that Plaintiff’s malpractice

claim against him prescribed well before January 30, 2017, which is when the

Plaintiff’s second complaint was filed with the PCF. Also, Relator argues that

Plaintiff’s initial PCF complaint, which was filed on October 11, 2017, and which

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was subsequently deemed to be without effect due to nonpayment of filing fees, was

also filed after the prescriptive period had expired.

Relator asserts that because Plaintiff’s complaint is prescribed on its face, the

burden shifts to Plaintiff to prove that her claim is not prescribed. Relator argues

that the trial court abused its discretion when it allowed Plaintiff, over Relator’s

objection, to introduce uncertified medical records into evidence at the hearing on

the exception of prescription. Relator contends that Plaintiff introduced multiple

incomplete and uncertified medical records such as an uncertified office note from

Dr. McGuire, an uncertified provider sheet, and uncertified medical records and

invoice from Dr. Kim. However, Relator maintains that La.R.S. 13:3714 authorizes

the admission of only those medical records which have been certified by a health

care provider or signed by the administrator or medical records librarian of a hospital.

Relator argues that since Plaintiff’s exhibits were not properly signed by the

administrator or the medical records librarian of the health care providers at issue,

they should not have been admitted and considered by the trial court.

Relator notes that this court has stated the following:
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. 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. The heart of the inquiry is
the reasonableness of the plaintiff’s action or inaction. This inquiry
requires consideration of the her [sic] education, intelligence, and the
gravity of her condition, as well as the defendant’s conduct.
Reasonability is a factual determination which an appellate court
cannot disturb, absent a finding of manifest error.

Braud v. Cenac, 03-1696, p. 6 (La.App. 3 Cir. 7/14/04), 879 So.2d 896, 902-03, writ

denied, 04-2101 (La. 11/15/04), 887 So.2d 484 (citations, footnotes, and internal

quotation marks omitted).

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In the instant case, Relator asserts that Plaintiff did not present any admissible

evidence to prove the date of discovery of her cause of action for her malpractice

claim. Nonetheless, Relator contends that even if the inadmissible evidence which

Plaintiff submitted was considered, the key inquiry is the reasonableness of

Plaintiff’s inaction until January 30, 2018, which is when she filed her medical

malpractice claim. Relator notes that Plaintiff alleges that her stomach has not

healed and is deformed. Relator contends that looking at an unhealed and deformed

stomach in the mirror would excite the attention of a reasonable person and cause

that person to inquire about possible malpractice. Also, Relator contends that the

evidence shows that Plaintiff wanted a second opinion before January 30, 2017,

which was a year before her complaint was filed. Relator maintains that Plaintiff

was aware of her dissatisfaction with Relator’s services and the results of her surgery

as early as September 21, 2016, when she terminated her treatment with Relator.

In her opposition to the instant writ application, Plaintiff asserts that the

exception of prescription was properly denied. Plaintiff contends that Relator is

incorrect in its assertion that La.R.S. 13:3714 serves to ban the admission of

evidence. Instead, Plaintiff contends that statute merely dictates the proof of the

document’s content. Relator also contends that the medical records that she

submitted into evidence were admissible under La.Code Evid. art. 803 because they

were not introduced to prove the truth of the matter asserted but rather, they were

introduced to show that Plaintiff was continuing treatment with Relator and another

doctor at the same facility. Also, Plaintiff asserts that the records contain a doctor’s

electronic signature and, at the very least, were kept in the ordinary course of

business.

Furthermore, Plaintiff maintains that the same medical records which Relator

did not want Plaintiff to introduce into the record, due to a lack of certification, were
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introduced, with certification, by Relator. Plaintiff contends that in support of her

opposition to the exception of prescription, she merely used an excerpt from the

same medical records that Relator has introduced. Plaintiff argues that even if some

or all of her exhibits are deemed inadmissible, the certified medical records

submitted by Relator should be sufficient to show that Plaintiff had no knowledge

of the malpractice until well after the date of her surgery and within a year of the

date of filing for her malpractice complaint. In that regard, Plaintiff contends that

the records show that Relator told Plaintiff that her surgery had gone well and show

that another doctor at Relator’s facility (Dr. McGuire) had specifically indicated that

there was no malpractice by Relator. Plaintiff maintains that she was prevented from

discovering her cause of action for malpractice because Relator’s facility was

assuring her up to February 7, 2017, that her results were normal for the type of

surgery she had undergone. Plaintiff contends that is was at that point that she

decided to get another medical opinion and began treating with Dr. Kim on April 4,

2018. Plaintiff maintains that it was during her treatment with Dr. Kim she finally

realized that she had a claim for malpractice. Plaintiff contends that she, being a real

estate agent with average intelligence, did not conclude that a malpractice had been

committed just because she was dissatisfied with the results of her surgery.

Pursuant to La.R.S. 9:5628(A), a medical malpractice action may be brought

within one year of discovery that a malpractice has been committed, provided that

the claim is filed within three years of the act of malpractice. Therefore, we find

that there is merit to Plaintiff’s argument that her claim is timely under the discovery

rule. We find that although Plaintiff had some dissatisfaction with the outcome of

her surgery of September 2016, she was being assured by Relator and Dr. McGuire

that the surgery had gone well and that her post-surgery symptoms were normal. We

agree with Plaintiff’s proposition that such assurances delayed Plaintiff’s discovery
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of the fact that she had been a victim of a malpractice. Inasmuch as her complaint

was filed within a year of the alleged discovery of malpractice and within three years

after the surgery was performed, we therefore hold that the trial court did not abuse

its discretion in denying Relator’s exception of prescription. Accordingly, we

affirm the trial court’s ruling on this issue.

WRIT DENIED. We find no error in the trial court’s ruling.

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