Milbert v. Answering Bureau, Inc.

Decision Date28 June 2013
Docket NumberNo. 2013–C–0022.,2013–C–0022.
PartiesDaniel MILBERT, et al. v. ANSWERING BUREAU, INC.
CourtLouisiana Supreme Court

OPINION TEXT STARTS HERE

CLARK, Justice.

We granted a writ of certiorari to determine whether a non-health care provider could be a joint tortfeasor with health care providers against whom a medical malpractice complaint had been filed, such that the suspension of prescription provisions of La. R.S. 40:1299.47(A)(2)(a) would apply to the filing of suit against the non-health care provider. Finding the clear language of the statute encompasses this circumstance, we reverse the lower courts' rulings which granted and affirmed summary judgment on the issue of prescription in favor of the defendant. Accordingly, we reverse the decisions of both lower courts and remand this matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

This matter is before us for review of a motion for summary judgment. Consequently, the facts have not been fully developed. However, for the purpose of this review, the following facts are essentially undisputed. Thirty-four year old Daniel Milbert, a roofer, fell off a roof on September 2, 2008 and broke his right ankle. He sought treatment at Lafayette General Medical Center (“the hospital”), where, on September 4, 2008, Dr. Thomas Montgomery performed surgery to repair the ankle fracture. That same day, Dr. Todd Ackal placed in Mr. Milbert a pain pump.1 On September 5, 2008, a Friday, Mr. Milbert was discharged from the hospital to his home. He was instructed to call his doctor if he had any problems, difficulties or pain.

On Saturday, September 6, 2008, Mr. Milbert's wife telephoned Dr. Montgomery to report her husband's complaints of pain, impaired mobility and numbness. The call was automatically routed to a physician answering service, Answering Bureau, Inc. d/b/a Dexcomm (hereinafter “Dexcomm”). Dexcomm contacted the on-call surgeon, orthopedist Dr. Edward Scott Yerger, and gave him the message. According to the Milberts, Dr. Yerger reassured them Mr. Milbert's reaction was to be expected, but instructed them to call back if Mr. Milbert's pain worsened.

On Sunday, September 7, 2008, Mr. Milbert's pain increased. At 3:21 p.m., Mrs. Milbert called Dexcomm, asking that Dr. Yerger be notified Mr. Milbert's pain had become excruciating. When they failed to receive a return call from the on-call physician within a few minutes, the Milberts went to the hospital's emergency room for treatment. The Milberts arrived at the emergency room at 4:16 p.m. in the afternoon. Although Mr. Milbert continued to suffer from severe pain in his right leg, no physician examined him for hours.

Dexcomm's call log, attached as an exhibit to the motion and opposition and introduced at the hearing, indicates Dexcomm employees initially paged the wrong doctor. Dr. Yerger was finally reached on his mobile phone at approximately 4:14 p.m., about the time the Milberts arrived at the emergency room, and given the Milberts' message. When Dr. Yerger asked Dexcomm to connect him to the Milberts, the call went to their voicemail. Dr. Yerger then informed Dexcomm's employee to call him on his mobile phone if the Milberts called again.

While awaiting examination in the emergency room, the Milberts continued to call Dexcomm, leaving messages for Dr. Yerger. During one of those calls, a Dexcomm employee allegedly informed the Milberts nothing could be done for them according to office policy because they were already in the emergency room. The Milberts did not receive a return telephone call from the on-call physician. In spite of Dr. Yerger's directive to a Dexcomm employee, he was not informed of the Milberts' subsequent phone calls.

Several hours after their arrival at the hospital, an emergency room physician examined Mr. Milbert. Dr. Yerger was immediately called by the emergency room physician to come to the hospital. Within twenty-three minutes, Dr. Yerger arrived at the hospital, examined Mr. Milbert, diagnosed his complaint as compartment syndrome of his right leg, alerted the surgical team to prepare for emergency surgery, and recorded his findings.2 After arriving at the hospital at 4:16 p.m., Mr. Milbert underwent emergency surgery at 10:22 p.m. In addition to undergoing this emergency surgery, Mr. Milbert was required to undergo numerous surgical debridement procedures of his entire lower right leg because of extensive tissue damage. His wounds remained open for several months and he was subsequently required to undergo numerous skin grafting procedures.

Consistent with the provisions of the Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41 et seq., the Milberts filed a timely request for a medical review panel on August 28, 2009, to consider their medical malpractice complaint against Dr. Ackal,Dr. Yerger, the hospital and the two hospital emergency room physicians. Among other specific allegations of medical malpractice, the Milberts averred the damage suffered by Mr. Milbert could have been prevented had the health care providers “performed an appropriate work-up and diagnostic tests, had they properly monitored and had they promptly and appropriately managed, treated and cared for” him.3

The request for a medical review panel was amended on November 20, 2009 to add Dexcomm. During discovery of their claim against the health care providers, the Milberts learned Dr. Yerger gave specific instructions to the answering service that he be contacted if the Milberts called back on September 7, 2008. The Milberts also learned the personnel for the medical answering service failed to convey their subsequent messages to Dr. Yerger. The Milberts discovered there was no policy at Dexcomm for personnel to cease trying to contact the treating or on-call physician for a recent surgical patient who was on his way to the emergency room. This information formed the basis of the amendment to the medical review complaint which added Dexcomm. On December 7, 2009, the Louisiana Patient's Compensation Fund notified the Milberts through their attorney that Dexcomm was not a qualified health care provider under the MMA. Thereafter, on December 23, 2009, the Milberts filed suit against Dexcomm in the district court.

On September 14, 2011, the medical review panel rendered a decision in favor of the health care providers.4 On December 14, 2011, the Milberts filed a timely medical malpractice lawsuit against the hospital, the two emergency room physicians, and Louisiana Emergency Physicians. Thereafter, the Milberts filed a motion to consolidate the two lawsuits.

Dexcomm filed a motion for summary judgment, asserting the Milberts' claims against it were based on general negligence which occurred on September 7, 2008. Dexcomm argued the lawsuit filed on December 23, 2009 was prescribed on its face, as the petition was filed after expiration of the one year prescriptive period applicable to a negligence action. The Milberts opposed the motion, claiming Dexcomm was a joint tortfeasor with the health care providers against whom the Milberts had filed a medical malpractice complaint. The Milberts argued their suit against Dexcomm was filed during the time prescription was suspended against all joint tortfeasors under La. R.S. 40:1299.47(A)(2)(a), particularly the section emphasized below:

(2)(a) The filing of the request for a review of a [medical malpractice] claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board 5 that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review. Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription. All requests for review of a malpractice claim identifying additional health care providers shall also be filed with the division of administration.

In addition, the Milberts asserted their negligence claim was timely filed within one year of discovery of an alleged action against Dexcomm, relying upon the doctrine of contra non valentem which prevents the running of liberative prescription under certain circumstances.6 The Milberts claimed they were unaware of their cause of action against Dexcomm until sometime in November 2009.

After a hearing on February 22, 2012, the district judge granted Dexcomm's motion for summary judgment and certified the ruling as a final judgment. In oral reasons for judgment, the district judge found the Milberts' claim against Dexcomm had prescribed, “whether they are joint and several or not.” The district judge did not find the general negligence allegedly committed by Dexcomm to be similar to medical malpractice such that provisions of the MMA should apply. In finding no merit to the Milberts' argument based on contra non valentem, the judge found the Milberts were aware of Dexcomm's failure to forward the phone messages on the day that failure occurred, September 7, 2008. Thereafter, the Milberts appealed.

The appellate court affirmed the...

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