Campo v. Correa

• Decision Date: 21 June 2002
• Docket Number: No. 2001-C-2707.,2001-C-2707.
• Citation: 828 So.2d 502
• Parties: Alvin CAMPO, individually and on behalf of the minor Children, Joshua Hall Campo and Jessi Lynn Campo, and Pamela Campo v. Amilcar CORREA, M.D., and Galen-Med, Inc. (f/k/a Humedicenter, Inc., f/d/b/a Humana Hospital-New Orleans).
• Court: Louisiana Supreme Court

828 So.2d 502

Alvin CAMPO, individually and on behalf of the minor Children, Joshua Hall Campo and Jessi Lynn Campo, and Pamela Campo v. Amilcar CORREA, M.D., and Galen-Med, Inc. (f/k/a Humedicenter, Inc., f/d/b/a Humana Hospital-New Orleans).

No. 2001-C-2707.

Supreme Court of Louisiana.

June 21, 2002.

Oscar L. Shoenfelt, III, Baton Rouge, Counsel for Applicant.

Kelly E. Barbier, Gina A. Gennusa, Thomas A. Gennusa, II, Metairie, Franklin D. Beahm, New Orleans, Joseph E. Windmeyer, Jr., Metairie, BEAHM & GREEN; Scott W. Smith, Counsel for Respondent.

KNOLL, Justice.

This medical malpractice case primarily addresses two prescription issues concerning the date of discovery. The initial issue before us is whether the plaintiffs' petition was prescribed on its face when plaintiffs' claims are brought within one year from the date of discovery, but not more than three years from the alleged act of malpractice. As to this issue, there is a split among the circuits. The second question before us, which is complementary to the first issue, is whether the alleged medical malpractice victim was reasonable in not discovering within a year of his medical treatment that his condition may have been related to his hospital stay and his surgical treatment. For the following reasons, we find the lower courts erred as a matter of law in finding the plaintiffs' petition was prescribed on its face and further conclude, after conducting a de novo review, that the plaintiffs' alleged malpractice action has not prescribed.

FACTS

In November 1989, Alvin Campo fell and injured his back and neck while visiting at Baptist Hospital. After providing initial treatment to Campo for several weeks, Dr. John D. Olson, a neurologist, referred Campo to Dr. Amilcar Correa, a neurosurgeon, for further medical care and treatment. Dr. Correa admitted Campo to Humana Hospital-New Orleans (hereafter "hospital"),¹ and on July 27, 1990, he performed an anterior cervical diskectomy and fusion at C5-6. After this surgery, Campo's neck symptoms improved and he required no further treatment for this problem.

Later, on February 28, 1991, Dr. Correa admitted Campo to Humana Hospital for a lumbar myelogram which was performed there on March 1, 1991.² Because of Campo's continued pain in the lumbar region, Dr. Correa recommended lumbar surgery. Campo and his wife, Pamela, acknowledged that prior to this surgery, Dr. Correa advised them that possible complications of surgery included leakage of cerebral spinal fluid (CSF) and infection; the doctor further told them that he could not guarantee the surgery would eliminate Campo's back pain. With the knowledge of the attending risks, Campo signed a consent form to allow Dr. Correa to perform the recommended lumbar surgery. Thereafter, on April 10, 1991, Dr. Correa surgically removed parts of the bony arch of Campo's lumbar spine (a laminectomy) at Humana Hospital.

Within weeks after the lumbar surgery, Campo developed a spinal fistula at the site of the lumbar myelogram and he was diagnosed with a CSF leak. After conservative blood patch therapy failed, on May 7, 1991, Dr. Correa returned Campo to the operating room and inserted a lumbar peritoneal shunt to treat the CSF leakage. Thereafter, while still in the hospital, Campo developed an infection, namely spinal meningitis, which required him to remain in the hospital until May 27, 1991. Dr. Correa continued to treat Campo post-operatively until sometime in October 1991.

Campo then returned to Dr. Olson, the neurologist who treated him prior to surgery, for post-operative care. Campo complained of pain in the lumbar region which had not subsided after Dr. Correa's surgery.³ Dr. Olson saw Campo off and on for several years for his lumbar pain. In October 1993, Dr. Olson recommended that Campo begin treatment with Dr. Charles R. Billings, a neurosurgeon. On October 26, 1993, Dr. Billings examined Campo and opined that Dr. Correa's use of the peritoneal shunt was improper and that he had segmental instability at L4-5 because of Dr. Correa's use of the shunt. According to Campo's petition, this was the first time he became aware that Dr. Correa may have committed an act of medical malpractice.

On March 1, 1994, less than five months after Dr. Billings informed Campo of the improper use of the shunt and its consequences, Campo, individually and on behalf of his two minor children, together with his wife, Pamela Campo, filed a medical malpractice complaint with the Patient's Compensation Fund, alleging that Dr. Correa and Humana Hospital had improperly provided medical care to Campo. Later, on April 1, 1996, a medical review panel ruled that although Dr. Correa had breached the standard of care in the placement of the peritoneal shunt, the shunt was not responsible for his medical problems and pain. Instead, the panel concluded that all of Campo's complaints stemmed from recognized complications of back surgery. The medical review panel also opined that no evidence was presented to it to establish Humana's alleged improper medical care.

On May 28, 1996, Campo, individually and on behalf of his two minor children, and his wife, Pamela, individually, (hereafter collectively referred to as the Campos) filed a medical malpractice action in the district court against Dr. Correa and the hospital.⁴ They further alleged with particularity that they were unaware of any possible medical malpractice until October 26, 1993, when Campo first saw Dr. Billings and thus their claim was timely filed.⁵ On April 18, 1998, the Campos filed a first supplemental and amending petition to further allege that Campo developed an infection which he contracted during the surgical procedure and/or during his hospitalization. Subsequently, on April 26, 1999, the Campos filed a second supplemental and amending petition to allege that Roberto Salcedo, one of Dr. Correa's employees, was allowed to treat Campo during his hospitalization even though he was not a physician licensed to practice in Louisiana and he did not have staff privileges at the hospital.⁶ More than five years after the Campos filed their medical malpractice complaint, the hospital and Dr. Correa, respectively, filed peremptory exceptions of prescription on July 8, 1999, and September 14, 1999.⁷

The trial court sustained both exceptions of prescription. Finding that the Campos' claim was prescribed on its face, the trial court shifted the burden to the Campos to prove that Campo did not/could not have known of the essential facts underlying the medical malpractice claim. The trial court found that due to the pain and infection which immediately followed his lumbar surgery, Campo should have known that something was wrong and that a reasonable man in Campo's circumstances should have obtained a second opinion from another physician such as Dr. Billings less than twenty-nine months after his release from the hospital. The trial court then concluded that even if it based the act of negligence upon the act that occurred last in chronological order, i.e., the shunt surgery, the claims against the hospital and Dr. Correa were prescribed because it was filed more than a year after Campo should have been aware of his claims.

The appellate court first affirmed the trial court's finding that the Campos' petition was prescribed on its face. The court of appeal, relying on a manifest error standard of review, then analyzed the trial court's finding that the plaintiffs failed to show that there were sufficient facts to justify an interruption of prescription. Finding no manifest error in the trial court's determination, the appellate court found that the Campos' claims against the hospital and Dr. Correa were prescribed because Campo knew or should have known something was wrong and should have been more timely in seeking a second medical opinion. As justification for this finding, the reviewing court pointed out that Dr. Correa immediately informed Campo of the spinal leak and the infection, and that Campo suffered continuous lower back pain post-surgery, even though he had not experienced such pain after his earlier successful cervical surgery.

To summarize, for purposes of determining whether the Campos' petition was prescribed on its face, it is clear that the trial court and the court of appeal only looked to the dates that were "within one year from the date of the alleged act, or omission or neglect." It is equally clear that the lower courts did not consider the date "within one year from the date of discovery" in determining whether plaintiffs' petition was prescribed on its face, and shifted the burden of proof to the plaintiffs to prove that prescription had been sufficiently interrupted, so as to bring their action within the prescriptive period.

We granted the Campos' writ application to resolve a split among the circuits on the issue of whether to consider the date of discovery in determining whether the petition in a medical malpractice action is prescribed on its face, and to examine the correctness vel non of whether the Campos were reasonable in not discovering the alleged malpractice acts sooner than alleged. Campo v. Correa, 2001-2707 (La.1/11/02), 806 So.2d 653.

DISCUSSION

There is a split among the circuit courts on the issue of when a plaintiff's petition is prescribed on its face in medical malpractice actions when the claim is brought within one year from the date of discovery. The First, Second, and Third Circuits look to the pleadings to see if allegations are made with which to determine whether the petition was filed within one year of the date of the plaintiff's discovery, either actual or constructive, of the act of medical malpractice. Abrams v. Herbert, 590 So.2d 1291 (La.App. 1 Cir.1991); Chandler v. Highland Clinic, 28,204 (La.App. 2 Cir.4/03/96), 671 So.2d 1271, 1273; and Leyva v. Laga,⁸ 549 So.2d 914, 916 (La. App. 3 Cir.1989). As exemplified in the present case, the Fourth Circuit...