27,924 La.App. 2 Cir. 1/24/96, Masters v. Fields

CourtCourt of Appeal of Louisiana (US)
Citation666 So.2d 1333
Decision Date24 January 1996
Parties27,924 La.App. 2 Cir

Page 1333

666 So.2d 1333
27,924 La.App. 2 Cir. 1/24/96
Ovis MASTERS, Plaintiff-Appellant,
Dr. Thomas FIELDS, Defendant-Appellee.
Ovis MASTERS, Plaintiff-Appellant,
Bruce GOLSON, M.D., Radiology Associates, J. Michael
Barraza, M.D., Thomas Fields, M.D., and St.
Francis Medical Center, Defendants-Appellees.
Nos. 27924-CA, 27925-CA.
Court of Appeal of Louisiana,
Second Circuit.
Jan. 24, 1996.

Page 1334

Oscar L. Shonenfelt, III, Baton Rouge, for Appellant.

Bruce M. Mintz, Jesse D. McDonald, Monroe, for Appellees.

Before WILLIAMS, STEWART, JJ., and CLARK, J. Pro Tem.

CLARK, Judge Pro Tem.

This is a medical malpractice action filed by Ovis Masters against Dr. Thomas Fields, Dr. Bruce Golson, Dr. J. Michael Barraza, Radiology Associates, Inc., and St. Francis Medical Center. Dr. Golson, St. Francis Medical Center, and Radiology Associates filed exceptions of prescription. After a hearing, the trial court ruled in favor of these defendants and dismissed plaintiff's claims. Plaintiff appeals. For the following reasons, we affirm.


In February 1988, plaintiff, Ovis Masters, developed a problem with her ears and voice. On or about March 4, 1988, she visited Dr. Fields, an ear, nose and throat specialist, and he performed a routine examination. On December 4, 1989, during a subsequent office visit, Dr. Fields noticed Mrs. Masters' left vocal cord was paralyzed and sent her to St. Francis Medical Center for a chest x-ray.

Dr. Bruce Golson, a radiologist employed by Radiology Associates which performed radiological services at St. Francis Medical Center, evaluated the x-ray. He reported that the left vocal cord did not work. He also interpreted the x-ray as "demonstrating no acute process."

On January 2, 1990, a CT scan was performed on Mrs. Masters' neck pursuant to Dr. Fields' orders. Dr. Golson evaluated the CT scan and reported that he observed no abnormal masses. He did note an apparent paralysis of Masters' left vocal cord but stated the study was otherwise negative. After that, Dr. Fields continued treating Masters' problems, which continued to worsen, until her final visit on July 27, 1992.

On August 6, 1992, Mrs. Masters collapsed and was treated in an emergency room. She was hospitalized at Hardtner Medical Center until August 13, 1992. Some time between August 1992 and October 1992, she was evaluated and diagnosed as having a glomus tumor, which extended down her internal jugular vein to the C-3 level and to the junction of her lateral sinus.

On October 28, 1992, Dr. Gale Gardner, a surgical specialist, removed the tumor. Following the surgical procedure, Mrs. Masters remained hospitalized in the intensive care unit and then, under the care of Dr. Gardner, in a hospital in Memphis, Tennessee.

Page 1335

In May 1993, Mrs. Masters contacted an attorney and sought copies of her medical records. On July 19, 1993, she filed a complaint against Dr. Thomas Fields, and on October 26, 1993, she filed an amended complaint, adding as defendants Dr. Bruce Golson, Dr. Barraza, Radiology Associates, and St. Francis Medical Center.

Prior to this matter being submitted to a Medical Review Panel pursuant to LSA-R.S. 40:1299.41 et seq., Dr. Bruce Golson, St. Francis Medical Center, and Radiology Associates filed exceptions of prescription pursuant to LSA-R.S. 40:1299.47(B)(2). They contended that Masters failed to file suit against Dr. Golson within three years of the date of his alleged malpractice and that her action is prescribed under both the one and three-year time limitations set forth in LSA-R.S. 9:5628.

After a hearing, the trial court ruled in favor of the defendants, sustaining their exception of prescription and signing a judgment dismissing plaintiff's claims with prejudice and without the right to amend. 1


The sole issue presented on appeal is whether the trial court properly granted the defendants' exception of prescription.

Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the plaintiff's petition shows on its face that the prescriptive period has run, and he is contending there is a suspension or interruption of prescription, the burden is on him to prove suspension or interruption. Burdeaux v. Cline, 626 So.2d 1205 (La.App. 2d Cir.1993), writ denied 634 So.2d 833 (La. 2/11/94).

LSA-R.S. 9:5628 governs prescriptive periods applicable to medical malpractice actions. The statute provides both prescriptive and preemptive periods. Whitnell v. Menville, 540 So.2d 304 (La.1989), on remand 592 So.2d 429 (La.App. 4th Cir.1991). It states that such actions must be 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. In any event, even as to claims filed within one year from the date of such discovery, such claims must be filed, at the latest, within a period of three years from the date of the alleged act, omission, or neglect.

In the present case, the "alleged act, omission, or neglect" identified in Masters' petition is Dr. Golson's failure to correctly interpret the CT scan of January 2, 1990. Thus, based on the face of her petition, under LSA-R.S. 9:5628(A) she had until January 2, 1993, at the latest, and in all events, to file her suit. Considering she filed this suit in October 1993, outside of the preemptive period set forth in LSA-R.S. 9:5628, she had the burden of proving interruption or suspension of prescription.

Plaintiff sets forth three specifications of error in support of her contention that the trial court erred in sustaining the exception of prescription. We address each of the plaintiff's arguments separately. The standard of review which we must apply in examining the factual conclusions of the trial court is the manifest error--clearly wrong standard as articulated in Stobart v. State, Through Dept. Of Transportation and Development, 617 So.2d 880 (La.1993).

A. Contra Non Valentem

Plaintiff first contends the trial court erred in failing to apply the doctrine of contra non valentem in...

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19 cases
  • 98-0289 La.App. 4 Cir. 9/23/98, Medical Review Panel Proceeding Vaidyanathan, In re
    • United States
    • Court of Appeal of Louisiana (US)
    • 23 Septiembre 1998
    ...Anderson. We note that prescription which has already accrued cannot be interrupted. Masters v. Fields, 27,924 (La.App. 2 Cir. 1/24/96), 666 So.2d 1333, Moreover, since we find that prescription was not interrupted or suspended against Dr. Reynolds and Dr. York, the suit filed against them ......
  • In re Noe, 2005-C-2275.
    • United States
    • Supreme Court of Louisiana
    • 22 Mayo 2007
    ...that suspends prescription against joint and solidary obligors/tortfeasors is Masters v. Fields, 27924, 27925 (La.App.2d Cir.1/24/96), 666 So.2d 1333. In Masters, the court of appeal addressed both whether prescription had been interrupted against an alleged solidary obligor in a medical ma......
  • Coleman v. Acromed Corp., 32,590-CA.
    • United States
    • Court of Appeal of Louisiana (US)
    • 15 Diciembre 1999
    ...of three years from the date of the alleged act, omission or neglect. La. R.S. 9:5628; Masters v. Fields, 27,924 (La.App.2d Cir.1/24/96), 666 So.2d 1333. The rules governing the suspension of prescription set forth in La. R.S. 40:1299.47 are only applicable to entities defined as health car......
  • Wright v. Christus Health Ctr. La., 14–970.
    • United States
    • Court of Appeal of Louisiana (US)
    • 4 Febrero 2015
    ...prescribed by the time of the filing of the December 15, 2011 claim form. Citing Masters v. Fields, 27,924 (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 defen......
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