Guitreau v. Kucharchuk

• Citation: 763 So.2d 575
• Decision Date: 16 May 2000
• Docket Number: No. 99-C-2570.,99-C-2570.
• Parties: Ben GUITREAU v. Andrew KUCHARCHUK, M.D.
• Court: Supreme Court of Louisiana

763 So.2d 575

Ben GUITREAU v. Andrew KUCHARCHUK, M.D.

No. 99-C-2570.

Supreme Court of Louisiana.

May 16, 2000.

B. Scott Cowart, Baton Rouge, D. Blayne Honeycutt, Denham Springs, Donald T.W. Phelps, Dewey Michael Scandurro, Baton Rouge, Counsel for Applicant.

Dexter Anthony Gary, William Anthony Stark, Houma, Counsel for Respondent.

Amy Waters Phillips, Baton Rouge, Deborah Inchaustegui Schroeder, Metairie, Counsel for Louisiana State Medical Society and Louisiana Medical Mutual Insurance Co. (Amicus Curiae).

JOHNSON, Justice.¹

Plaintiff, Ben Guitreau, filed a medical malpractice action, claiming that the surgery performed on his knee by defendant, Dr. Andrew Kucharchuk, fell below the acceptable standard of care for orthopedic surgeons. In LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, "we save[d] for another day the question of whether the medical malpractice victim gets any period of time that remains unused at the time of the filing of the request for the medical review panel when the ninety-day period of suspension after the decision of the medical review panel is completed." LeBreton, 714 So.2d 1229 n. 5. The First Circuit Court of Appeal has answered the question in the affirmative, and we granted this writ of certiorari to determine the accuracy of that court's decision. We affirm the court of appeal's decision and hold that when the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to count the period of time, under LSA-R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed. We also hold that the court of appeal did not err in finding that prescription commenced on November 23, 1992 and that plaintiff's action had not prescribed. Accordingly, we affirm the court of appeal's decision and remand this matter to the trial court.

FACTS AND PROCEDURAL HISTORY

On August 11, 1992, plaintiff, Ben Guitreau, underwent orthopedic surgery on his left knee. The surgery was performed by Dr. Andrew Kucharchuk. After surgery, plaintiff attended physical therapy and remained under Dr. Kucharchuk's care. Plaintiff testified that Dr. Kucharchuk informed him that he was doing well and never indicated that there was anything wrong. However, plaintiff alleges that, following the surgery, his knee continued to swell, and his condition worsened.

Because plaintiff's knee remained swollen, his employer became concerned that he was unable to return to work and referred him to the company physician, Dr. John Fraiche. Dr. Fraiche examined plaintiff and then referred him to Dr. Brian Griffith, an orthopedic surgeon. On October 30, 1992, plaintiff was examined by Dr. Griffith. Plaintiff presented Dr. Griffith with a copy of the videotape of the surgery performed by Dr. Kucharchuk. On November 2, 1992, Dr. Griffith's notes reflect that the "tape was inconclusive as to how much of [the damage] was removed or how completely." The doctor also noted that plaintiff had "significant damage" to his knee. Plaintiff visited Dr. Griffith again on December 16, 1992. From that visit, Dr. Griffith noted that he "talked with [plaintiff] about his alternatives." Plaintiff testified that he became aware of the need for additional surgeries around "the end of November or early December."

Plaintiff testified that, on the suggestion of his cousin, he decided to consult an attorney. On November 23, 1992, plaintiff visited an attorney and signed a medical authorization form. He was informed by the attorney that an independent orthopedic surgeon would review his medical records.

On August 2, 1993, plaintiff filed a claim with a medical review panel. The panel rendered an opinion in plaintiff's favor on March 10, 1995, and plaintiff received the opinion on March 14, 1995. On May 19, 1995, plaintiff filed a petition for damages in the Twenty-first Judicial District Court, alleging Dr. Kucharchuk's conduct in performing the surgery fell below the acceptable standard of care for orthopedic surgeons. Plaintiff further alleged that the surgery failed to correct his knee problems and caused additional damage to his knee.

On August 25, 1995, plaintiff filed a First Supplemental and Amending Petition, naming Southeastern Orthopedics, Inc. as an additional defendant. Plaintiff alleged that Southeastern Orthopedics was a professional medical corporation established by Dr. Kucharchuk and that Dr. Kucharchuk was in the course and scope of his employment with the corporation at the time of the alleged malpractice. Neither defendant was served with plaintiff's original or supplemental petition until September 15, 1995.

Both defendants filed a declinatory exception of improper venue, asserting that Dr. Kucharchuk was a resident and domiciliary of East Baton Rouge Parish and that his medical office was located in East Baton Rouge Parish. Defendants further alleged that plaintiff's surgery was performed at the Medical Center of Baton Rouge which is also located in East Baton Rouge Parish. Furthermore, Southeastern Orthopedics, Inc. was a Louisiana Corporation with its registered office in East Baton Rouge Parish. Following a hearing, the trial court maintained the exception and transferred the case to the Nineteenth Judicial District Court.

After the case was transferred, defendants filed a peremptory exception of prescription, alleging that prescription commenced on August 11, 1992, the date of plaintiff's surgery. Defendants also alleged that plaintiff filed suit in an improper venue and did not serve defendants until September 15, 1995. The trial court maintained the exception, finding that plaintiff's action had prescribed. The trial court specifically found that plaintiff had sufficient information to make a claim for malpractice as of November 2, 1992, the date Dr. Griffith viewed the videotape and noted in plaintiffs records that Dr. Kucharchuk had performed plaintiff's surgery incorrectly. The trial court allowed plaintiff the benefit of the unused prescriptive period when plaintiff requested the medical review panel and concluded that plaintiff's suit was prescribed by three days when Dr. Kucharchuk was served on September 15, 1995 because plaintiff had received notice of the panel's decision on March 14, 1995.

Plaintiff appealed to the First Circuit Court of Appeal which reversed the trial court's ruling. Guitreau v. Kucharchuk, 97-0169 (La.App. 1 Cir. 2/20/98), 710 So.2d 378 (Unpublished). After conducting a de novo review of the record, the appellate court found that the petition was not prescribed on its face and that defendants failed to meet their burden of proving that the action had prescribed because they failed to prove when plaintiff discovered his medical malpractice claim. The court of appeal concluded that prescription commenced on November 23, 1992, the date upon which plaintiff discovered his malpractice claim and consulted an attorney and allowed plaintiff the benefit of the unused prescriptive period when the medical review panel was instituted on August 2, 1993. The court found that prescription ran from November 23, 1992 until the claim was presented to the medical review panel on August 2, 1993, and at that point, the prescriptive period was suspended until ninety days following March 14, 1995, the date plaintiff received the medical review panel's opinion.

Defendants filed an application for certiorari with this court, urging the court to reinstate the trial court judgment. Defendants later filed a supplement to the writ application in light of this court's decision in LeBreton. This court granted the writ and remanded the case to the First Circuit Court of Appeal for a decision concerning the question left open in footnote 5 of the LeBreton case, that is, whether the medical malpractice victim is allowed to count any period of time that remains unused at the time of the filing of the request for the medical review panel when the ninety-day period of suspension after the decision of the panel is complete. Guitreau v. Kucharchuk, 98-0756 (La.11/6/98), 726 So.2d 915.

On remand, the court of appeal concluded that a patient is entitled to the remaining days of the prescriptive period that are unused prior to filing a claim with the medical review panel. The appellate court again concluded that plaintiff's suit was timely because prescription did not commence until November 23, 1992. Guitreau v. Kucharchuk, 97-0169 (La.App. 1 Cir. 7/29/99), 740 So.2d 232.

Once again, defendants filed an application for certiorari with this court. By order dated November 24, 1999, we granted their writ application. Guitreau v. Kucharchuk, 99-2570 (La.11/24/99), 750 So.2d 976.

DISCUSSION

In their first assignment of error, defendants argue that the court of appeal erred in ruling that plaintiffs petition, which was not served within ninety days after plaintiff received the medical review panel's decision, was timely.

LSA-R.S. 9:5628 provides that all actions against physicians arising out of patient care must be filed within one year from the date of the alleged act or within one year from the date of the discovery of the act. The Medical Malpractice Act provides, in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted ... until ninety days following notification, by certified mail ... to the claimant or his attorney of the issuance of the opinion by the medical review panel....

LSA-R.S. 40:1299.47(A)(2)(a). Article 3472 of the Louisiana Civil Code provides:

The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.

The explicit language of LSA-R.S. 40:1299.47(A)(2)(a) provides that the time for filing a suit is suspended during the pendency of the determination by the medical review panel until ninety days following...