Knippers v. Lambard

• Decision Date: 23 June 1993
• Docket Number: No. 24872-CA,24872-CA
• Citation: 620 So.2d 1368
• Parties: Connie KNIPPERS, Plaintiff-Appellant, v. Dr. W.W. LAMBARD, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1368

620 So.2d 1368

Connie KNIPPERS, Plaintiff-Appellant, v. Dr. W.W. LAMBARD, et al., Defendants-Appellees.

No. 24872-CA.

Court of Appeal of Louisiana Second Circuit.

June 23, 1993.

Rehearing Denied Aug. 12, 1993.

Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.

Cook, Yancey, King & Galloway by Samuel Caverlee, Cynthia C. Anderson, Shreveport, for defendants-appellees.

Before LINDSAY, VICTORY and WILLIAMS, JJ.

LINDSAY, Judge.

In this medical malpractice action, the plaintiff, Connie Knippers, appeals from a trial court judgment sustaining an exception of prescription. For the following reasons, we affirm the judgment of the trial court.

FACTS

In April, 1988, the plaintiff discovered that she had a mass in her abdomen. She was referred to a gynecologist, Dr. W.W. Lambard, of the Women's Clinic in Minden. On April 11, 1988, Dr. Lambard performed exploratory surgery, assisted by Dr. J.R. Kemmerly. It was determined that the plaintiff had a large pelvic mass, which was removed along with her ovaries.

Shortly after surgery, the plaintiff began experiencing severe abdominal pain. She was referred to a urologist, Dr. F.J. Blell. Dr. Blell discovered that, as a result of the surgery done by Dr. Lambard, the plaintiff's left ureter had become blocked. The plaintiff's bladder became dry, she experienced leakage of urine into her abdomen and she suffered severe pain, nausea, vomiting and inability to urinate.

On April 19, 1988, Dr. Blell performed surgery to remove the blockage of the left ureter. A tube was inserted between the bladder and kidney and out the plaintiff's side to drain fluid. Eight to ten days later, Dr. Blell performed a surgical procedure to reposition the tube to allow better drainage. The plaintiff was discharged from the hospital on or about April 30, 1988.

Subsequently, the tube was removed by Dr. Blell at his office. The plaintiff continued to see Dr. Blell for check ups.

The plaintiff contends that on March 21, 1989, her counsel mailed a complaint to the Commissioner of Insurance in Baton Rouge requesting the appointment of a medical review panel. In this complaint, the plaintiff named as defendants Drs. Lambard and Kemmerly and the Women's Clinic, along with their liability insurer, Louisiana Medical Mutual Insurance Company (LAMMICO). The plaintiff also named Dr. Blell and the Minden Medical Center. ¹

On March 30, 1989, plaintiff's original complaint, signed by the plaintiff's attorney, was received in LAMMICO's office. LAMMICO also received an original letter addressed to the Commissioner of Insurance, requesting that the complaint be filed and that a medical review panel be appointed. The plaintiff contends that the original complaint, which was received by LAMMICO, was the complaint which she intended to send to the Commissioner of Insurance. At about the same time, and although the record is not clear on this point, it appears that counsel for the defendants received "courtesy copies" of this complaint.

The Commissioner of Insurance has no record of ever receiving the complaint allegedly mailed by plaintiff's counsel in March, 1989. The plaintiff concedes that the complaint was not sent by registered or certified mail. There is no proof that the complaint was in fact filed with the Commissioner of Insurance.

Plaintiff's counsel eventually learned that the Commissioner of Insurance never received the complaint allegedly mailed in March, 1989. Therefore, on June 6, 1989, counsel mailed a copy of the complaint to the Commissioner's office. On June 8, 1989, the copy of plaintiff's complaint requesting that a medical review panel be appointed, was stamped and filed with the Commissioner of Insurance. ²

On June 25, 1990, the defendants filed an exception of prescription. In their exception, the defendants asserted that the plaintiff's surgery, which allegedly caused her harm, occurred on April 11, 1988 and the complaint requesting a medical review panel was not filed until June 6, 1989, more than one year after the commission of the alleged malpractice.

Argument on the exception was held on November 26, 1991. The plaintiff contended that it was not until several months after the surgery by Dr. Blell that he informed her that she should have her kidney checked regularly, because any infection neglected for more that four or five days could result in loss of the kidney. She argued that because she was not aware that she had received permanent injury until sometime in August, 1988, prescription on her claim did not begin to run until August, 1988. Therefore, even if the complaint was not filed until June 6, 1989, it was filed within one year of discovery of the damage. Further, the plaintiff argued that the defendants are estopped from asserting the exception of prescription because they received copies of the complaint sometime in March, 1989.

Following the argument on the exception of prescription, the case was taken under advisement. On September 16, 1992, the trial court filed its reasons for judgment. The trial court found that because the plaintiff's complaint was not filed with the Commissioner of Insurance nor mailed to that office by certified or registered mail before June 6, 1989, the action had prescribed. The trial court found that the defendants engaged in correspondence with the plaintiff's attorney on the basis of copies of a complaint the parties believed had been filed with the Commissioner. The trial court found that the defendants did not attempt to deceive the plaintiff, nor did they engage in any fraudulent conduct which would invoke the doctrine of equitable estoppel. Therefore, the exception of prescription was sustained and the plaintiff's case was dismissed. The plaintiff appealed.

PRESCRIPTION--KNOWLEDGE OF DAMAGE

The prescriptive period for medical malpractice claims is set forth in LSA-R.S. 9:5628 which provides in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, dentist, psychologist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined by R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising 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.

Under this statute, plaintiff must bring a medical malpractice action within one year from the date of the alleged malpractice or within one year from the date the plaintiff discovers or should have discovered the facts upon which his cause of action is based. Chandarlis v. Shah, 535 So.2d 895 (La.App. 2d Cir.1988).

Prescription does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable. Chandarlis v. Shah, supra; Maung-U v. May, 556 So.2d 221 (La.App. 2d Cir.1990), writ denied 559 So.2d 1385 (La.1990).

Prescription commences and continues 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. Percy v. State, E.A. Conway Memorial Hospital, 478 So.2d 570 (La.App. 2d Cir.1985).

Constructive knowledge sufficient to commence the running of prescription requires more than a mere apprehension that something might be wrong. Chandarlis v. Shah, supra; Maung-U v. May, supra; In re Medical Review Panel of Howard, 573 So.2d 472 (La.1991).

Thus, even if a malpractice victim is aware that an undesirable condition developed at some point in time after the medical treatment, prescription does not run as long as it is reasonable for the victim not to recognize that the condition may be related to the treatment. The proper focus is on the reasonableness of the tort victim's action or inaction. Chandarlis v. Shah, supra; Maung-U v. May, supra.

The jurisprudence is clear that this "discovery" does not require certain knowledge but merely sufficient information to incite curiosity as to the cause of the discomfort. Speights v. Caldwell Memorial Hospital, 463 So.2d 881 (La.App. 2d Cir.1985).

An injury need not be permanent to spawn a cause of action for damages. Percy v. State, E.A. Conway Memorial Hospital, supra. Whether caused by the false assurances or representations of doctors or by neglect of a patient, ignorance or misunderstanding of the probable extent or duration of injuries materially differs from ignorance of actionable harm which delays commencement of prescription. A satisfactory showing of the former does not excuse or justify ignorance of those facts that would alert a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hospital, supra.

In the present case, the record shows that immediately following the second surgery, Dr. Blell informed the plaintiff's husband that the corrective surgery had been necessitated by a problem with the surgery performed earlier by Dr. Lambard, which resulted in a blockage of the ureter. In the plaintiff's deposition testimony, she stated that she knew that the reason for the second surgery was to correct the problem created by the first surgery. However, she also stated that following the second surgery to correct the problem with her ureter, she thought she would recover completely and would not require future care. She testified that two or three months after she left the hospital following the corrective surgery, Dr. Blell informed her of the continuing risk of additional problems with the ureter which, if left unchecked, could result in the loss of the kidney. She was advised to have regular kidney checkups and was...