“‘A judgment denying a motion for new trial is an interlocutory order, not a final appealable judgment.’”
How later courts described this case
- “‘A judgment denying a motion for new trial is an interlocutory order, not a final appealable judgment.’”
Written by the judges who cited it.
The opinion
MEDICAL REVIEW PANEL * NO. 2020-CA-0468
FOR THE CLAIM OF
RICHARD BUSH, DECEASED, *
ET AL PCF NO. 2018-01209 COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 19-0107, DIVISION “A”
Honorable Robert A. Buckley, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)
BELSOME, J., CONCURS IN THE RESULT WITH REASONS
Julie U. Quinn
QUINN LAW, APLC
855 Baronne Street
New Orleans, LA 70113
COUNSEL FOR PLAINTIFF/APPELLANT
Paul A. Tabary, III
Elizabeth R. Borne
TABARY AND BORNE, LLC
Three Courthouse Square
Chalmette, LA 70043
Kyle Choate
GACHASSIN LAW FIRM
400 E. Kaliste Saloom Rd.
Suite 6100
Lafayette, LA 70509
COUNSEL FOR DEFENDANTS/APPELLEES
PAB
JCL
REVERSED IN PART;
AFFIRMED IN PART;
REMANDED
JUNE 2, 2021
This matter involves a medical malpractice claim for wrongful death and
survival actions. Plaintiffs/Appellants, Patricia Bush, Madalyn Bush, and Ashley
Bush, individually and on behalf of the decedent, Richard Bush, (collectively, the
“Bush Family”), appeal the district court’s judgment which sustained, in part,
Defendants’/Appellees’, Dr. Miguel Aguilera and St. Bernard Parish Hospital
Foundation, Inc. d/b/a Ochsner Health System, Ochsner Medical Center
(“SBPHF”)(collectively “Defendants”), peremptory exception of prescription on
their wrongful death action. In turn, SBPHF filed an answer to the appeal in the
district court, seeking reversal of the district court’s judgment, which denied the
exception of prescription on the Bush Family’s survival actions.1 For the reasons
1
La. C.C.P. art. 2133(A) provides in relevant part:
An appellee shall not be obliged to answer the appeal unless he desires to have the
judgment modified, revised, or reversed in part or unless he demands damages
against the appellant. In such cases, he must file an answer to the appeal, stating
the relief demanded, not later than fifteen days after the return day or the lodging
of the record whichever is later.
In Succession of Poole, 15-1317, p. 11 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 25, the First
Circuit noted La. C.C.P. art. 2133 does not designate which court the answer to an appeal must
1
that follow, we reverse the district court’s judgment in part, affirm it in part, and
remand the matter for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2017, Mr. Bush presented to SBPHF, located in
Chalmette, Louisiana, for depression and suicidal ideations. After being denied
admittance to the hospital, Mr. Bush went into the hospital’s bathroom and
attempted suicide by hanging. Mr. Bush was revived and later transported to
University Hospital in New Orleans. On November 30, 2017, Mr. Bush
subsequently died from the injuries sustained from his attempted suicide.
The first complaint
On November 27, 2018, Ms. Bush, on behalf of herself, her daughters, and
her deceased husband, filed a formal complaint, pro se, with the Patient
Compensation Fund - Division of Administration Medical Review Panel (“PCF”)
to convene a medical review panel, pursuant to La. R.S. 40:1231.1 et seq.2 Dr.
Aguilera and SBPHF were named as defendants. In the complaint, the Bush
Family alleged that Defendants committed malpractice when they failed to admit
and treat Mr. Bush when he presented to the hospital on November 21, 2017.
Specifically, the Bush Family contended that “[SBPHF] records reflect that his
treatment providers KNEW that Mr. Bush had a history of presenting to the
emergency room with complaints of depression and suicidal thoughts and/or
ideation on prior occasions, and on each prior occasion, he had received
be filed and the only requirement was that it be filed no later than fifteen days after the return
date or lodging of the record whichever is later. As SBPHF’s answer was timely filed, it is
properly before this Court.
2
The Medical Malpractice Act is codified in La. R.S. 40:1231.1 et seq.
2
appropriate treatment that prevented him from acting on any suicidal thoughts
and/or ideations.” In addition, the Bush Family alleged that “Dr. Aguilera, St.
Bernard Parish Hospital and/or Ochsner Clinic Foundation violated St. Bernard
Parish Hospital Policy by failing to admit someone with suicidal tendencies who
advised hospital staff and Dr. Aguilera that he was going to commit suicide.” The
Bush Family alleged the dates of the malpractice occurred on November 21, 2017,
when Mr. Bush presented to SBPHF, until November 30, 2017, when Mr. Bush
ultimately died. Ms. Bush furnished a filing fee of $100.00 with the complaint.
On December 4, 2018, the PCF notified Ms. Bush, via certified letter,
acknowledging receipt of her request for a medical review panel and $100.00
money order. In addition, the PCF stated that the filing fee was $100.00 per
qualified defendant, and the $100.00 remitted by Ms. Bush would be applied once
the balance of $100.00, for the second named defendant, was received. The PCF
further informed Ms. Bush that, under La. R.S. 40:1231.8 (1)(c) and (d)3, she had
forty-five (45) days to either remit the remaining balance of $100.00, submit a
physician’s affidavit or submit an in forma pauperis ruling, and pursuant to section
(1)(e) of La. R.S. 40:1231.8, “[f]ailure to comply shall render the request and
without effect as to all named healthcare providers including any previously
qualified providers.”
On January 22, 2019, the PCF sent Ms. Bush a “2ND NOTICE”, which,
again, requested the outstanding fee and explained the consequences of her
3
La. R.S. 40:1231.8 sets forth the procedure to formally request a medical review panel.
3
noncompliance. Also on January 22, 2019, SBPHF filed a petition to institute
discovery in the Thirty-Fourth Judicial District Court in St. Bernard Parish.4
On March 13, 2019, the PCF, in a certified letter to Ms. Bush, advised her
that due to her failure to remit the remaining filing fee of $100.00, a physician’s
affidavit, or an in forma pauperis within the 45-day deadline, her case was
considered invalid and without effect and a refund in the amount of $100.00 would
be issued.
The second complaint
On May 28, 2019, the Bush Family, through counsel, filed their second
complaint with the PCF. This complaint contained the exact allegations against
Dr. Aguilera and SBPHF as the initial complaint, and, again, requested a medical
review panel be convened. The PCF, on June 13, 2019, forwarded correspondence
to counsel for the Bush Family, acknowledging receipt of the Bush Family’s May
28, 2019 request for a medical review panel and receipt of their $200.00 check on
June 5, 2019.
On October 17, 2019, Ms. Bush filed a supplemental complaint to the
medical review panel, alleging in pertinent part:
[I]n or around October of 2018 that the hospital maintained certain
policies and procedures requiring that a patient be admitted if he
threatened suicide. This was the first time Ms. Bush had any facts
or indication that defendants’ had committed malpractice and
that, had they followed hospital policy and procedure, his suicide
could have been prevented.
4
Any party may institute a petition to institute discovery after a request for a medical review
panel is filed. In accordance with La. R.S. 40:1237.2(D)(4), “[u]pon request of any party, or
upon request of any two panel members, the clerk of any district court shall issue subpoenas and
subpoenas duces tecum in aid of the taking of depositions and the production of documentary
evidence for inspection or copying or both.” In this case, the petition to institute discovery was
filed by SBPHF and the matter was captioned “In Re: Medical Review Panel for the Claim of
Richard Bush, Deceased, ET AL PCF No. 2018-01209.”
4
Prior to this time, she did not have any reason to believe that his
suicide was the result of any breach of the standard of care by the
defendants named herein.
The exception of prescription
On August 30, 2019, SBPHF filed a peremptory exception of prescription in
the district court, asserting the Bush Family’s request for a medical review panel
had prescribed. SBPHF alleged that the Bush Family’s first complaint was invalid,
and without effect as to all defendants, and prescription was never suspended,
because the Bush Family failed to comply with the statutory requirements of La.
R.S. 40:1231.8(A)(1)(c). As to the second complaint, SBPHF argued it had
prescribed on its face. SBPHF asserted that the allegations of malpractice dates
were still November 21, 2017 with a date of death on November 30, 2017, the
Bush Family filed their second complaint in May of 2019, after the one year
prescriptive period, and the prescription period had not been suspended with the
filing for the first complaint which was invalid. Dr. Aguilera filed a peremptory
exception of prescription on September 23, 2019, adopting the law and arguments
of SBPHF.
In support of the exception of prescription, Defendants attached to the
exception both complaints, and the letters from the PCF.
The Bush family did not challenge that the first complaint was invalid.
However, as to the second complaint, the Bush Family filed an opposition to the
exception of prescription on October 10, 2019, arguing that the doctrine of contra
non valentem applied. The Bush Family maintained they did not become aware of
SBPHF’s internal policies and procedures that required admittance of a patient
who presented with suicidal ideations until October 2018, after they received Mr.
Bush’s complete medical records. The Bush Family urged since they did not have
5
any actual or constructive knowledge of Defendant’s malpractice until October
2018, eleven months after Mr. Bush’s death, the one year prescriptive period did
not begin to run until October 2018. The Bush Family argued, because they filed
their second complaint on May 28, 2019, the complaint was filed within the one
year prescriptive period. In support of its opposition, the Bush Family offered into
evidence an affidavit signed by Ms. Bush on October 17, 2019, which provided in
pertinent part:
1. I was married to Richard Bush at the time of his death, and together
we had two (2) children, Madelyn Bush and Ashley Bush;
***
5. On the morning of November 18, 2017, I was advised by Richard’s
mother that Richard had attempted to commit suicide the night before;
6. Thereafter, at University Medical Center, Richard was unconscious
and on life support, completely unable to communicate until his death
on November 30, 2018;
7. After Richard’s death, I began obtaining and reviewing his medical
records. There was nothing in these records to reflect that any breach
of the standard of care had occurred on the night that he attempted
suicide.
8. In October, 2018, I learned for the first time that the hospital had
certain policies and procedures requiring that a patient be admitted if
he threatened suicide. This was the first time I had facts which led me
to believe that my husband’s suicide was the result of malpractice by
defendants;
9. Prior to that time, I did not have any reason to believe that his
suicide was the result of any breach of the standard of care by Dr.
Miguel Aguilera or St. Bernard Parish Hospital.
In addition, the Bush Family offered as evidence their October 17, 2019,
supplemental complaint filed with the PCF, discussed supra.
Following, Defendants each filed reply memoranda.
6
A hearing on the exception was held on October 18, 2019, and the district
court took the matter under advisement. On November 14, 2019, the district court
issued a judgment that granted Defendants’ exception of prescription as to the
wrongful death action, but denied the exception as to the survival actions, pending
further discovery on the Bush Family’s alleged delay discovery of malpractice.5
Motion for New Trial
On October 28, 2019, the Bush Family filed a motion for new trial
challenging the district court’s judgment, which granted the exception of
prescription as to their wrongful death claim, arguing that because the district court
found that contra non valentem interrupted the prescriptive period on the survival
actions, the same analysis should be applied to the wrongful death action. A
hearing on the motion for new trial was held on December 13, 2019. On
December 30, 2019, the district court rendered judgment, denying the Bush
Family’s motion for new trial. In the judgment, the district court designated the
judgment granting Defendants’ peremptory exception of prescription on the Bush
Family’s wrongful death claim as a final judgment. The district court issued
reasons for judgment, addressing the exception of prescription.6 It explained its
reasons for denying the first complaint, writing:
5
A copy of the transcript of the district court’s October 18, 2019 hearing is not contained in the
appellate record.
6
It is a “‘well-settled rule that the district court’s oral or written reasons for judgment form no
part of the judgment, and that appellate courts review judgments, not reasons for judgment.’”
Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77 (La. 4/1/11), 61 So.3d 507,
572 (quoting Bellard v. American Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654,
671). However, a court of appeal may review the trial court’s reasons for judgment to “gain
insight” into the trial court’s judgment. Id., 09-0571, 09-0584, 09-0585, 09-0586, p. 78, 61 So.3d
at 572; See also, Bruno v. CDC Auto Transp., Inc., 19-1065 (La. App. 4 Cir. 6/3/20), 302 So.3d
8, 13, writ denied, 20-00836 (La. 10/14/20), 302 So.3d 1118.
7
At the original prescription hearing, the Court ruled from the
bench without written reasons and none were requested. The Court
sets forth that the granting of the exception of prescription as to the
wrongful death action was proper due to the facts of this case. The
first medical review panel was filed timely as to survival and
wrongful death actions. However, it was properly dismissed due to,
plaintiff’s failure to properly pay all required filing fees. Said
dismissal legally results in no interruption or suspension of any of the
prescription periods.
The district court, as to the second complaint, wrote in pertinent part:
A second medical review panel was filed more than one year
from the date of alleged malpractice action and death. The Court ruled
that contra non valentem applied as to the survival action due to
discovery of filing within one year of discovery of the alleged act of
negligence for malpractice claim. However, the Court found that
contra non valentem did not interrupt the prescriptive period of one
year from date of death. In this instance, because of the immediate
awareness of the death, the reasonableness of delaying inquiry as to
the cause was not proven to the Court’s satisfaction. Plaintiff
established the application of contra non valentem to the survival
action but not to the wrongful death action.
On March 11, 2020, the Bush Family filed a notice for devolutive appeal,
which was granted by the district court on May 20, 2020. On April 30, 2020,
before the record was lodged in this Court, SBPHF filed an answer to the Bush
Family’s appeal in the district court. This timely appeal followed.
Jurisdiction
Before we consider the merits of the instant appeal, we must first address the
jurisdictional issue raised by SBPHF in its’ brief to this Court. SBPHF asserts that
the Bush Family erroneously filed a devolutive appeal from the district court’s
December 30, 2019 judgment, denying the Bush Family’s motion for new trial.
SBPHF, citing Miller v. Chicago Ins. Co., 320 So.2d 134, 136 (La. 1975), argues
that the denial of a motion for new trial is not appealable; but rather, it is reviewed
under the appellate court’s supervisory jurisdiction. SBPHF urges because the
Bush Family filed a devolutive appeal—more than thirty days after the judgment
8
denying the motion for new trial—it could not be converted to a timely filed writ
application, which must be filed within thirty days of the judgment. SBPHF
contends because the matter was improperly filed as an appeal, and was untimely
filed to be converted to a supervisory writ, the matter should be dismissed. We
disagree.
“Generally, a judgment denying a motion for new trial is an interlocutory,
non-appealable judgment.” Alexander v. Centanni, 20-0321, 2021 WL 343404, at
*3 (La. App. 4 Cir. 1/27/21)(citing Barham, Warner & Bellamy, L.L.C. v. Strategic
All. Partners, L.L.C., 09-1528, p. 4 (La. App. 4 Cir. 5/26/10), 40 So.3d 1149,
1151).7 As a rule, interlocutory judgments are appealable only when expressly
provided by law. La. C.C.P. art. 2083(C). Notwithstanding, this Court, in
Clotworthy v. Scaglione, 11-1733, p. 3 (La. App. 4 Cir. 5/23/12), 95 So.3d 518,
520 (citing Smith v. Hartford Acc. & Indem. Co., 254 La. 341, 223 So.2d 826, 828-
29 (La. 1969)), opined that the reviewing court “consider[s] an appeal of the denial
of a motion for new trial as an appeal of the judgment on the merits of the case as
well when . . . it is clear from the appellant’s brief that [they] intended to appeal
the merits of the case.”
In the case sub judice, review of the record and appellate briefs clearly
demonstrate that the Bush Family intended to appeal the merits of the underlying
exception of prescription. In fact, as noted supra, the district court, in its judgment
denying the motion for new trial, designated the judgment granting the exception
of prescription and dismissing plaintiff’s wrongful death claim, as a final
7
See also, Babineaux v. Univ. Med. Ctr., 15-0292, p. 4 (La. App. 3 Cir. 11/4/15), 177 So.3d
1120, 1123 (quoting Shavers v. Shavers, 350 So.2d 912 (La. App. 3 Cir. 1977)(“‘A judgment
denying a motion for new trial is an interlocutory order, not a final appealable judgment.’”).
9
judgment.8 Thus, we conclude that this Court has jurisdiction to address the merits
of the appeal, and we limit our review to the issue of prescription.
DISCUSSION
The Bush Family asserts a number of assigned errors, which we summarized
as follows:9
The district court erred in finding that the doctrine of contra non
valentem was applicable to a medical malpractice claim for survival actions,
but not for a wrongful death action that was filed within one (1) year of the
date of discovering the alleged act, omission, or neglect that encompasses
the medical malpractice, but over a year after the date of death.
In its answer filed in the district court, SBPHF asserts that the district court
erred in denying its exception of prescription on the Bush Family’s survival action.
Applicable law/standard of review
Prescription
The prescriptive period governing a wrongful death claim is one year from
the date of death. La. C.C. art. 2315.2. The prescriptive period governing medical
malpractice claims, including survival actions but excluding wrongful death
actions, is codified in La. R.S. 9:5628(A). This statute provides in pertinent part:
No action for damages for injury or death against any physician . . .
hospital or nursing home duly licensed under the laws of this state . . .
whether based upon tort, or breach of contract, or otherwise, arising
8
La. C.C.P. art. 1915 (B)(1) provides:
When a court renders a partial judgment or partial summary judgment or sustains an
exception in part, as to one or more but less than all of the claims, demands, issues, or theories
against a party, whether in an original demand, reconventional demand, cross-claim, third-party
claim, or intervention, the judgment shall not constitute a final judgment unless it is designated
as a final judgment by the court after an express determination that there is no just reason for
delay.
9
The Bush Family also assigns as an error that the district court erred in denying the motion for
new trial. However, as discussed supra, the appeal is limited to review the district court’s
granting of the exception of prescription concerning the wrongful death claim and the denial of
the exception of prescription on the survival actions.
10
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.
The Louisiana Supreme Court, in interpreting La. R.S. 9:5628, explained:
La. [R.S.] 9:5628 is a tripartite prescription provision:
First, a one-year prescription period (which parallels the general
tort period) is the general rule, which applies to all types of medical
malpractice actions. Under this general rule, such actions prescribe
one year from the date of the alleged act, omission or neglect. This
rule applies when the damages are immediately apparent.
Second, in cases involving damages that are not immediately
apparent, a discovery exception to the general rule is codified. The
discovery exception embodied in Section 5628 is a codification of the
fourth category of contra non valentem for cases in which the cause of
action is not immediately knowable. Under this discovery rule, such
actions prescribe one year from the date of discovery of the alleged
act, omission or neglect.
Third, an overall limitation is placed on cases otherwise falling
within the discovery rule. That overall limitation is the underscored
portion of Section 5628, which provides that “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.” La. [R.S.] 9:5628
(emphasis supplied).
* * *
A straightforward reading of this statute clearly demonstrates
the statute sets forth two prescriptive limits within which to bring a
medical malpractice action, namely one year from the date of the
alleged act or one year from the date of discovery with a three-year
limitation from the date of the alleged act, omission or neglect to
bring such claims. [internal citations omitted].
Carter v. Haygood, 04-0646, pp. 9-10 (La. 1/19/05), 892 So.2d 1261, 1267-68
(citations omitted).
“The peremptory exception of prescription is a ‘procedural device by which
a defendant may obtain dismissal of the action because it is time-barred.’” Felix v.
11
Safeway Ins. Co., 15-0701, p. 4 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 630
(internal quotations and citation omitted). “Ordinarily, the mover bears the burden
of proof at the trial on the exception of prescription.” Fisher v. Blood Center, 19-
0846, p. 5, (La. App. 4 Cir. 2/12/20), 292 So.3d 985, 988 (citation omitted). “If,
however, the petition on its face reveals that prescription has run, the burden of
proof shifts to the plaintiff to show his action has not prescribed.” Id. (citations
omitted).
Generally, a peremptory exception raises an exclusively legal question.
Fisher, 19-0846, p. 3, 292 So.3d at 987 (citation omitted). However, evidence may
be introduced in the district court to support or oppose a peremptory exception
of prescription. Id. See La. C.C.P. art. 931 (which provides that “evidence may be
introduced to support or controvert any of the objections pleaded, when the
grounds thereof do not appear from the petition.”). The standard of review of a
district court’s ruling on a peremptory exception of prescription hinges upon
whether evidence is introduced. Id. (citing State v. Thompson, 16-0409, p. 18 (La.
App. 4 Cir. 11/23/16), 204 So.3d 1019, 1031 (citing Miralda v. Gonzalez, 14-
0888, pp. 17-18 (La. App. 4 Cir. 2/4/15), 160 So.3d 998, 1009)). When evidence
is introduced at the hearing on an exception of prescription, the trial court’s
findings of fact are subject to the manifest error standard of review. Id. (citing In re
Medical Review Panel of Hurst, 16-0934, p. 4 (La. App. 4 Cir. 5/3/17), 220 So.3d
121, 125-126). Under the manifest error standard of review, well-settled
jurisprudence provides that if the fact finder’s ruling is reasonable, in light of a
review of the record in its entirety, the court of appeal may not reverse. Id., 19-
0846, p. 3, 292 So.3d at 987-988 (citing Stobart v. State, Dep’t of Trans. And Dev.,
617 So.2d 880, 882-883 (La. 1993)). “When no evidence is introduced, the
12
exception of prescription is decided on the facts pled in the petition, which are
accepted as true, and ‘the judgment is reviewed simply to determine whether the
trial court’s decision was legally correct.’” Id., 19-0846, pp. 3-4, 292 So.3d at 988
(quoting 639 Julia Street v. City of New Orleans, 17-0940, p. 4 (La. App. 4 Cir.
5/2/18), 246 So.3d 847, 849 (citation omitted)). “[T]he standard controlling our
review of a peremptory exception of prescription also requires that we strictly
construe the statutes against prescription and in favor of the claim that is said to be
extinguished.” Id. (quoting 639 Julia Street, 17-0940, pp. 4-5, 246 So.3d at 850)
(citing Felix v. Safeway Ins. Co., 2015-0701, p. 6 (La. App. 4 Cir. 12/16/15), 183
So.3d 627, 631)).
In this case, evidence was introduced at the hearing on the peremptory
exception of prescription; thus, the manifest error-clearly wrong standard is
applicable.
Contra Non Valentem
“[C]ontra non valentem non currit praescriptio [(“contra non valentem”)],
which means that prescription does not run against a person who could not bring
his suit, is a Louisiana jurisprudential doctrine under which prescription may be
suspended.” Carter, 04-0646, p. 11, 892 So.2d at 1268 (internal citations omitted).
This jurisprudential exception was adopted to “soften the occasional harshness of
prescriptive statutes.” Id. The Supreme Court has recognized four factual
situations in which contra non valentem may prevent the running of prescription:
(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; or (4) where the cause of action is neither known nor
13
reasonably knowable by the plaintiff even though plaintiff's ignorance
is not induced by the defendant.
Id., 04-0646, pp. 11-12, 892 So.2d at 1268. The fourth category of contra non
valentem, is applicable to this case; it is also known as the discovery rule. The
discovery rule prevents the running of liberative prescription where the cause of
action is not known or reasonably knowable by the plaintiff. In discussing
reasonableness, the Supreme Court, in Campo v. Correa, 01-2707, pp. 11-12 (La.
6/21/02), 828 So.2d 502, 510 explained that “[p]rescription commences when a
plaintiff obtains actual or constructive knowledge of facts indicating to a
reasonable person that he or she is the victim of a tort.” “[A] plaintiff’s mere
apprehension that something may be wrong is insufficient to commence the
running of prescription unless the plaintiff knew or should have known through the
exercise of reasonable diligence that his problem may have been caused by acts of
malpractice.” Id., 01-2707, p. 12, 828 So.2d at 511. In medical malpractice cases,
“[e]ven if a malpractice victim is aware that an undesirable condition has
developed after the medical treatment, prescription will not run as long as it was
reasonable for the plaintiff not to recognize that the condition might be treatment
related.” Id. (citation omitted). As such, “[t]he ultimate issue is the reasonableness
of the patient’s action or inaction, in light of his education, intelligence, the
severity of the symptoms, and the nature of the defendant’s conduct.” Id
With these precepts in mind, we turn to the Bush Family’s assigned error.
Analysis
The Bush Family’s appeal
On appeal, the Bush Family asserts the district court erred in granting the
exception of prescription as to the wrongful death action, and finding that the
14
doctrine of contra non valentem was applicable to their medical malpractice claim
for survival actions, but not their medical malpractice claim for wrongful death.
It has been long held that the prescriptive period in a wrongful death case
begins to run at the time of death because that is the date the claimants were
injured. La. C.C. art. 2315.2; Taylor v. Giddens, 618 So.2d 834, 836 (La. 1993).
In Taylor, the Louisiana Supreme Court examined the prescriptive period for
wrongful death cases, writing:
[La. R.S.] 9:5628 provides the prescriptive period for survival actions
but does not provide the prescriptive period for wrongful death
actions. . . . . The commencement and running of the prescriptive
period for the wrongful death action is controlled by the one year
liberative period applicable to delictual actions, [La. C.C.] art. 3492.
Id. Delictual actions have a prescriptive period of one year which starts to run
from the date the injury or damages is sustained. La. C.C. art. 3492. The Taylor
Court explained that a wrongful death action and a survival action are separate and
distinct causes of actions, but arise from a common tort. Id. at 840. The court
continued explaining that a wrongful death action, which arises upon death of the
victim, compensates the beneficiaries for their own pain and suffering sustained as
a result of the decedent’s death. Id. The court concluded that La. R.S.
9:5268(A)—the prescriptive period provided for in medical malpractice actions—
did not control wrongful death claims arising out of acts of medical malpractice.
Id. at 841.
Following Taylor, Louisiana appellate courts observed that in a medical
malpractice case in which the damage resulting from acts of malpractice is death,
the alleged malpractice is readily apparent; thus, prescription begins to run on the
date of the victim’s death, since that is the date the claimants are injured. Although
the Taylor court did not explicitly state contra non valentem was inapplicable to
15
wrongful death actions, Louisiana Courts have strictly construed the wrongful
death prescriptive period, including in medical malpractice cases, to one year from
the date of death.10 However, in recent appellate court decisions the legal
precedent pronounced in Taylor and appellate court decisions following Taylor
have evolved. Appellate courts are now conducting a fact-intensive reasonableness
examination when queried to determine whether the doctrine of contra non
valentem tolls prescription in medical malpractice claims for wrongful death
actions.
In Brooks v. Meaux, 18-0980 (La. App. 3 Cir. 6/12/19), 275 So.3d 41, writ
denied, 19-01135 (La. 10/8/19) 280 So.3d 590, the Third Circuit reversed the
district court’s judgment that sustained the exception of prescription arising out of
a medical malpractice claim for the wrongful death of the plaintiff’s wife, who
died from a rare disorder during pregnancy. The plaintiff maintained that he had
no knowledge his wife’s cause of death was treatment related until he received his
wife’s autopsy report and an article outlining the symptoms of his wife’s condition,
two months after her death. The plaintiff argued that prescription did not begin
until the date of discovery of the cause of action, not the date of death as alleged by
the defendant. The appellate court noted that in support of his argument, the
plaintiff introduced his deposition testimony, wherein he detailed the timeline of
events. The Third Circuit explained the reasonableness inquiry when late discovery
is alleged, writing in pertinent part:
While Dr. Meaux points to the date of death and the date of the
death certificate as evidence of constructive knowledge, “a plaintiff’s
mere apprehension that something may be wrong is insufficient to
10
See Ford v. Rapides Healthcare System, L.L.C., 06-1539 (La. App. 3 Cir. 5/2/07), 957 So.2d
258; Carter v. Ochsner Clinic Found., 07-0889 (La. App. 5 Cir. 3/11/08), 978 So. 2d 562, 565;
Dowl, Jr., v. Redi Care Home Health Ass’n, 09-1300 (La. App. 4 Cir. 2/3/10), 31 So.3d. 596.
16
commence the running of prescription unless the plaintiff knew or
should have known through the exercise of reasonable diligence that
his problem may have been caused by acts of malpractice.” [Campo v.
Correa, 01-2707, p. 9 (La. 6/21/02) 828 So.2d 502] at 511 (emphasis
added). Further, “[e]ven if a malpractice victim is aware that an
undesirable condition has developed after the medical treatment,
prescription will not run as long as it was reasonable for the plaintiff
not to recognize that the condition might be treatment related.” Id.
“The ultimate issue is the reasonableness of the patient’s action or
inaction, in light of his education, intelligence, the severity of the
symptoms, and the nature of the defendant's conduct.” Id.
[U]ndoubtedly, the damage in this case was readily apparent at the
time of Mrs. Brooks’ death. In Campo, 828 So.2d at 511, however, the
supreme court instructed that even upon an awareness of damages,
prescription “will not run as long as it was reasonable for the plaintiff
not to recognize that the condition might be treatment related.”
Brooks, 18-0980, pp. 11-12, 275 So.3d at 48-49. The appellate court reversed the
trial court and concluded:
[Plaintiff] was reasonable in not having recognized the alleged
connection between his wife’s reporting of symptoms before her
death, and [the doctor]’s treatment of those symptoms prior to the
release of the autopsy report and the accompanying article detailing
the symptoms. While the death certificate listed [the victim’s] cause
of death, it did not include the listing of symptoms that prompted
further correlation with her medical treatment. Accordingly, given the
strict construction afforded statutes setting forth prescriptive periods,
we conclude that the trial court erred in sustaining the exception of
prescription.
Brooks, 18-0980, pp. 13-14, 275 So.3d at 50 (citation omitted).
In Hotard v Banuchi, 00-1364 (La. App. 5 Cir. 1/30/01), 784 So.2d 654, the
Fifth Circuit conducted a reasonableness inquiry as to the discovery of a medical
malpractice claim for wrongful death, where the district court granted an exception
of prescription. The plaintiffs in Hotard filed a medical malpractice claim against
their deceased daughter’s pediatrician, alleging the doctor committed malpractice
by failing to diagnose streptococcus and by prematurely releasing their daughter
from the hospital one day after she was born. Plaintiffs asserted that they did not
17
become aware of the wrongful act until a year after their daughter’s death; thus,
under the doctrine of contra non valentem, their suit was timely filed. On appeal,
the appellate court, citing Rayne State Bank and Trust Co., v. National Union Fire
Ins. Co., 483 So.2d 987, 995 (La.1986), recognized:
Mere notice of a wrongful act will not suffice to commence the
running of the prescriptive period. The reason is clear. In order for the
prescriptive period to commence, the plaintiff must be able to state a
cause of action—both a wrongful act and resultant damages. Because
the damage must necessarily occur after the wrongful act, prescription
runs from that point and not from the date of the wrongful act.
(Citations omitted).
As relied on by the Brooks Court, the appellate court here further noted,
“‘prescription does not commence even when an undesirable condition develops
some time following medical treatment if it was reasonable for the victim not to
have recognized that the condition may have been related to the treatment.’” Id., p.
4, 00-1364, 784 So.2d at 655 (quoting Dufriend v. Tumminello, 590 So.2d 1354,
1356 (La. App. 5 Cir.1991)).
After reviewing the evidence, the appellate court reasoned that, during her
deposition, the mother testified she knew there was something was not right with
her daughter. She called the doctor’s office the day after her daughter was released
from the hospital and was given an appointment a few days later. She called the
doctor’s office again two days later—her daughter died the next day, before her
scheduled appointment. The Hotard Court found plaintiffs’ late discovery
argument was unreasonable and concluded “the record clearly show[ed] that the
plaintiffs were aware of all the facts which form[ed] the basis of their malpractice
claim within one year after [their daughter’s] release from the hospital and within
one year from her death.” Id., p. 6, 00-1364, 784 So.2d at 656.
18
In re Guidry, 17-0105, (La. App. 5 Cir. 8/30/17), 225 So.3d 1169, also
involved a medical malpractice case wherein the plaintiffs asserted wrongful death
and survival action claims. In In re Guidry, the defendants filed an exception of
prescription as to the wrongful death and survival claims. Plaintiffs invoked the
doctrine of contra non valentum, arguing the exception applied to suspend
prescription because the wrongful death claim was not readily apparent. The trial
court denied the exception as to the survival action but granted the exception as to
the wrongful death claim. The plaintiffs filed an appeal. On appeal, the Fifth
Circuit, in affirming the trial court’s judgment, examined the reasonableness in the
plaintiffs’ delay in discovering the alleged malpractice. The reviewing court
accepted plaintiffs’ contra non valentum argument as to their survival action, but
rejected that same argument as to plaintiffs’ wrongful death action. In doing so,
the majority explained “[t]he evidence in this case indicate[d] that the plaintiffs
knew the date Mr. Guidry died [that wrongful death was apparent] and that they
immediately requested that an autopsy be perform on Mr. Guidry.” Id., 17-0105, p.
8, 225 So.3d at 1175.
In a dissenting opinion, Judge Liljeberg disagreed with the majority’s
decision to affirm the district court’s judgment. Judge Lijeberg explained that the
application of contra non valentum in both wrongful death and survival actions
involves “[t]he same evidence, facts and circumstances” because those claims are
“interrelated to the extent they both arise from the same negligence or fault, which
is the medical malpractice.” Id., 17-0105, p. 10, 225 So.3d at 1181. Judge
Liljeberg further reasoned “it is contradictory to have two different factual findings
as to when sufficient knowledge existed to commence the prescriptive period for
each cause of action.” Id.
19
In the case sub judice, on the face of the Bush Family’s second medical
malpractice complaint, the wrongful death and survival actions had prescribed, and
the burden of proof shifted to the Bush Family to show their action had not
prescribed. At the hearing on the exception for prescription, the Bush Family, in
support of their argument that under the doctrine contra non valentem prescription
was suspended, offered into evidence the affidavit of Ms. Bush.11 As briefly
discussed supra, Ms. Bush attested, in pertinent part, that she was notified on
November 18, 2017, by Mr. Bush’s mother, that Mr. Bush attempted suicide the
night before; that after Mr. Bush’s death on November 30, 2018, she began
obtaining and reviewing Mr. Bush’s medical records, but there was nothing in the
records to indicate any acts of medical malpractice; and October, 2018—after
learning that hospital had certain policies and procedures requiring that a patient be
admitted if he threatened suicide—was the first time she had facts which led her to
believe Mr. Bush’s death resulted from malpractice. The second complaint was
filed within the one year of the alleged discovery of the malpractice. Unlike
Hotard and In re Guidry, where the fact-intensive reasonableness inquiry showed
the plaintiffs’ delay in discovering the alleged malpractice was unreasonable, in
this case Defendants failed to rebut Ms. Bush’s attestation as to the date of
discovery of the alleged malpractice. Similar to Brooks, we conclude that the
record before this court supports that it was reasonable for the Bush Family to not
recognize that Defendants possibly committed malpractice until they discovered,
by receiving the complete medical records, including the hospital’s policy and
11
It should be noted that the record is devoid of any evidence that discovery has commenced on
this issue. Aside from Ms. Bush’s affidavit, the only evidence introduced at the exception of
prescription hearing were the correspondences between Ms. Bush, the Bush Family counsel and
the PCF.
20
procedures, that Defendants did not follow their own policies and procedures.
Thus, the district court’s finding, that the alleged delay was reasonable as to the
survival action but “the reasonableness of delaying inquiry as to the [wrongful
death] was not proven to the Court’s satisfaction,” is not supported by the record.
Moreover, we agree with Judge Liljeberg’s conclusion that “it is contradictory to
have two different factual findings as to when sufficient knowledge existed to
commence the prescriptive period for each cause of action.” In re Guidry, 17-0105,
p. 10, 225 So.3d at 1181. Accordingly, we reverse the district court’s judgment,
sustaining SBPHF and Dr. Aguilera’s exception of prescription on the medical
malpractice claim for wrongful death.
Thus, this claim has merit.
Answer to the Appeal
Turning to SBPHF’s assignment of error in its answer, SBPHF argued the
district court erred in denying its exception of prescription as to the Bush Family’s
survival action claim because no evidence was presented to support the finding.12
As discussed supra, there are three prescriptive periods for a medical
malpractice claim involving a survival action set forth in La. R.S. 9:5628(A): (1)
“one year from the date of the alleged act, omission, or neglect”; (2) “within one
year from the date of discovery of the alleged act, omission, or neglect”; and (3)
“claims filed within one year from the date of such discovery, in all events such
12
Louisiana Civil Code Article 2315.1 provides in pertinent part:
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all
damages for injury to that person, his property or otherwise, caused by the offense or quasi
offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child
or children.
21
claims shall be filed at the latest within a period of three years from the date of the
alleged act, omission, or neglect.” The unrebutted evidence presented by the Bush
Family at the hearing on the exceptions reflected that the second complaint was
filed within one year of the discovery of the alleged malpractice and within the
three year period from Mr. Bush’s passing. As a result, we find no error in the
district court’s judgment, denying Defendants’ exception of prescription as to the
survival action.
This claim lacks merit.
CONCLUSION
Based on the foregoing, we reverse the district court’s judgment, in part,
affirm it, in part, and remand the matter for further proceedings consistent with this
opinion.
REVERSED, IN PART,
AFFIRMED, IN PART,
REMANDED
22