In re Bush

• Decision Date: 13 May 2022
• Docket Number: 2021-C-00954
• Parties: MEDICAL REVIEW PANEL FOR the Claim of Richard BUSH, Deceased, et al. PCF No. 2018-01209
• Court: Louisiana Supreme Court

339 So.3d 1118

MEDICAL REVIEW PANEL FOR the Claim of Richard BUSH, Deceased, et al. PCF No. 2018-01209

No. 2021-C-00954

Supreme Court of Louisiana.

May 13, 2022

Genovese, J.

This Court granted this writ application in order to determine (1) whether contra non valentem interrupted prescription in this medical malpractice wrongful death case; and, (2) whether the court of appeal erred in relying on documents that were not entered as evidence and were not part of the record. For the reasons that follow, we find that, while contra non valentem may interrupt prescription in a wrongful death claim in certain instances, it did not interrupt prescription in this case due to the fact that the court of appeal incorrectly considered documents that were not in evidence. For these reasons, we reverse the court of appeal's ruling in part, affirm in part, and remand.

FACTS AND PROCEDURAL HISTORY

On November 21, 2017, Richard Bush presented to Saint Bernard Parish Hospital for depression and suicidal ideations. At the hospital, Dr. Miguel Aguilera treated and discharged him. Mr. Bush attempted re-admittance with the same complaints, but was refused re-admittance. Thereafter, Mr. Bush attempted suicide in the hospital bathroom. He was found alive and transported to University Hospital in New Orleans for treatment; however, he succumbed to his injuries from the suicide attempt and died on November 30, 2017. On November 19, 2018, his wife, Patricia Bush, on behalf of herself, her daughters, Madalyn Bush and Ashley Bush, and on behalf of the decedent, Richard Bush (plaintiffs herein), filed a formal pro se complaint with the Patient Compensation Fund ("PCF") to convene a medical review panel ("MRP").¹ The complaint named Saint Bernard Parish Hospital Foundation Inc. d/b/a Ochsner Health System, Ochsner Medical Center and Dr. Aguilera (collectively, "SBPHF" or "defendants") as defendants with the dates of the alleged malpractice occurring between November 21, 2017, and November 30, 2017.

With her complaint, Mrs. Bush included a filing fee of $100. On December 4, 2018, the PCF notified her that she would need to submit another $100 for the additional named defendant, and that failure to do so within 45 days would invalidate the complaint per La.R.S. 40:1231.8(A)(1). In the interim, SBPHF filed a petition to institute discovery in the Thirty-Fourth Judicial District Court. On January 22, 2019, Mrs. Bush received a second notification from the PCF advising her of the deficiency in her filing. However, she failed to timely remit the additional $100; and on March 13, 2019, the PCF notified Mrs. Bush her complaint was without effect and that it would refund the $100 that she submitted with the complaint.

On May 28, 2019, Mrs. Bush filed a second complaint with the PCF through counsel (collectively, the first and second PCF complaints are referred to as "plaintiffs’ initial PCF complaints"). The PCF acknowledged receipt of this complaint along with the requisite $200 filing fees. On August 30, 2019, SBPHF filed an exception of prescription asserting that, as the alleged dates of malpractice were still between November 21, 2017, and November 30, 2017, the second complaint was prescribed on its face.² Notably, the two PCF complaints filed by Mrs. Bush did not suggest any circumstances that delayed the discovery of any alleged malpractice.

On October 10, 2019, Mrs. Bush filed an opposition, arguing for the first time that contra non valentem barred the exception of prescription in this case. Specifically, she argued that until October 2018, she was unaware of an SBPHF internal policy requiring the hospital to admit suicidal patients. In conjunction with her opposition, on October 17, 2019, Mrs. Bush filed a supplemental PCF complaint (the "plaintiffs’ supplemental PCF complaint") alleging that discovery of this internal policy was her first indication that SBPHF had committed malpractice. Prior to this discovery, she was not aware of any breach of the standard of care by SBPHF that might have contributed to her husband's death. Mrs. Bush concluded that because of the delayed discovery of the potential malpractice, prescription did not begin to run until October 2018. Therefore, her second complaint filed on May 28, 2019 was timely. In support of this argument, Mrs. Bush relied on her copy of the October 17, 2019 supplemental PCF complaint and her own affidavit (executed on October 17, 2019) attesting to the delayed discovery.

A hearing on the exception of prescription was held on October 18, 2019. Defendants offered, filed, and introduced plaintiffs’ initial PCF complaints during the hearing. Plaintiffs presented Mrs. Bush's affidavit and the supplemental and amended request for an MRP. However, these documents were not offered, filed, or introduced into evidence at the hearing, and no testimony was presented by plaintiffs. The trial court granted SBPHF's exception of prescription as to the wrongful death claim.³

Mrs. Bush filed a motion for new trial, asserting that the trial court erred in dismissing the wrongful death claim, which the trial court denied. The trial court also designated its judgment granting SBPHF's exception of prescription as to the wrongful death action as final. Mrs. Bush devolutively appealed from the denial of her motion for new trial. The court of appeal converted the devolutive appeal from the motion for new trial to an appeal on the merits. See 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) ("We consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well when, as here, it is clear from the appellant's brief that he intended to appeal the merits of the case.") The court of appeal ultimately reversed the trial court's judgment regarding the exception of prescription for plaintiffs’ wrongful death claims.⁴ Med. Rev. Panel for Bush , 20-0468 (La. App. 4 Cir. 6/2/21), ––– So.3d ––––.⁵ The court of appeal found, in pertinent part, that plaintiffs met their burden in asserting contra non valentem :

Unlike Hotard [v.Banuchi, 00-1364 (La. App. 5 Cir. 1/30/01), 784 So.2d 654 ], and In re Guidry [, 17-0105, (La. App. 5 Cir. 8/30/17), 225 So.3d 1169 ], 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 [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 ], 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 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.

Bush, 20-0468, at pp. 20–21 (La.App. 4 Cir. 6/2/21), ––– So.3d at ––––. The court of appeal noted that it rendered judgment in favor of plaintiffs without reviewing the transcript from the original October 18, 2019 hearing on the exceptions of prescription.⁶ In its opinion, the court of appeal further stated that Mrs. Bush's affidavit and the amended medical malpractice complaint were offered, filed, and introduced into evidence. However, a review of the trial transcript reveals that this did not occur. Following the issuance of the court of appeal ruling, defendants filed writ applications in this Court.

SBPHF argues that contra non valentem should only apply in exceptional circumstances. Specialized Loan Servicing, L.L.C. v. January , 12-2668 (La. 6/28/13), 119 So.3d 582, 585. In Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, this Court determined that in order for contra non valentem to apply to a medical malpractice case, the plaintiff must present facts alleged with particularity to show the plaintiff was unaware of the malpractice prior to the alleged date of the discovery, and delay in filing suit was not due to willful, negligent, or unreasonable action/inaction. 01-2707 (La. 6/21/02), 828 So.2d at 509. Defendants note that plaintiffs alleged that a letter was submitted to the PCF supplementing the request for an MRP. However, defendants aver that this letter, never stamped "received" by the Division of Administration and never entered into evidence, is insufficient proof that the doctrine of contra non valentem would preserve plaintiffs’ claims and defeat the exceptions of prescription.

Plaintiffs argue that contra non valentem applies to wrongful death actions, and, specifically, that it applies here because the discovery of the malpractice did not occur until Mrs. Bush learned of the hospital's required-admittance policy in October 2018. Mrs. Bush counters that any argument as to insufficient evidence and/or evidence not properly submitted was not raised by SBPHF in either the trial court or court of appeal; therefore, it has been waived. See Johnson v. State , 02-2382, p. 4 (La. 5/20/03), 851 So.2d 918, 921 ("[w]e cannot consider contentions raised for the first time in this court which were not pleaded in the court below and which the district court has not addressed").

DISCUSSION

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. 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, jurisprudence provides that if...