Medical Review Panel of Howard, In re, No. 89-C-2928

• Court: Supreme Court of Louisiana
• Writing for the Court: LEMMON; WATSON
• Citation: 573 So.2d 472
• Parties: In re MEDICAL REVIEW PANEL OF Lucinda A. HOWARD. 573 So.2d 472
• Decision Date: 22 January 1991
• Docket Number: No. 89-C-2928

Page 472

573 So.2d 472 In re MEDICAL REVIEW PANEL OF Lucinda A. HOWARD. No. 89-C-2928. 573 So.2d 472 Supreme Court of Louisiana. Jan. 22, 1991.

Israel M. Augustine, Augustine & Bagert, New Orleans, for applicant.

Robert D. Ford and Franklin D. Beahm, Thomas Hayes & Beahm, New Orleans, for respondent.

LEMMON, Justice ^*.

The issue in this case is whether plaintiff's medical malpractice claim against certain

Page 473

defendants for causing the wrongful death of her husband is barred by prescription.

Dr. R. Cailouette was the emergency room physician on duty at Jo Ellen Smith Hospital on September 26, 1985 when plaintiff's husband was admitted to the hospital after sustaining multiple stab wounds. Dr. Cailouette provided initial treatment of the wounds for about two hours. Another physician subsequently performed emergency surgery, but the patient died the next day.

On April 9, 1986, plaintiff filed a claim against the hospital with the Commissioner of Insurance pursuant to La.Rev.Stat. 40:1299.47. She alleged that her husband's death was caused by the negligence of employees of the hospital or of other persons for whom the hospital was responsible.

Inasmuch as the Medical Malpractice Act does not require responsive pleadings by a qualified health care provider against whom a claim is filed with the Commissioner, the hospital did not admit or deny any of the allegations of plaintiff's pleading, but did initiate discovery by filing interrogatories and requests for production and by taking plaintiff's deposition. The medical review panel required by the Act was eventually constituted, the last member being selected on June 29, 1987.

On November 4, 1987, the hospital submitted a memorandum to the panel. Service of the memorandum on plaintiff notified her for the first time that the doctor who undertook her husband's treatment when he presented himself to the hospital in the emergency room was not the hospital's employee, but rather was an employee of Keith Van Meter & Associates, a medical group which had contracted with the hospital to provide professional services in the hospital's emergency department. ¹ The hospital, asserting that the only hospital employees involved in the case were the nurses in the emergency room and in the surgical and intensive care units, contended that there was no evidence of negligence by any of these employees.

The medical review panel ruled on January 12, 1988 that the evidence did not establish any deviation by employees of the hospital from the appropriate standard of care.

On January 25, 1988, plaintiff filed a supplemental claim with the Commissioner, requesting that the medical review panel conduct a further review of the responsibility of Keith Van Meter & Associates and a named physician in connection with the death of her husband. The claim asserted that both Van Meter and the doctor were qualified health care providers and that the doctor was the emergency doctor assigned to the hospital by Van Meter on the night of the alleged malpractice described in the original claim. ²

Van Meter filed an exception of prescription, which was maintained by the trial court.

On appeal the intermediate court affirmed the dismissal of the claim. 554 So.2d 87. The court rejected the applicability of the doctrine of contra non valentem agere nulla currit praescriptio, noting that plaintiff made no effort to discover the indentity of the employer of the emergency room doctor and that the hospital had no obligation to disclose its contractual relationship with Van Meter. ³

Page 474

We granted certiorari to review the correctness of the decisions of the lower courts. 558 So.2d 1136.

The periods of limitation for filing medical malpractice claims are provided in La.Rev.Stat. 9:5628, which requires an action for damages against doctors and hospitals arising out of patient care to be brought (1) within one year of the date of the act or omission, (2) within one year of the date of discovery of the act or omission, or (3) at the latest, in all events, within three years of the date of the act or omission. ⁴ Crier v. Whitecloud, 496 So.2d 305 (La.1986). Thus, the statute itself recognizes the discovery rule embodied in the contra non valentem doctrine, at least when the action is filed within one year of the discovery and within three years of the act or omission.

In the present case the claim against Van Meter was filed within one year of...