Whitnell v. Menville
| Decision Date | 13 March 1989 |
| Docket Number | No. 88-C-1285,88-C-1285 |
| Citation | 540 So.2d 304 |
| Parties | Lorraine S. Whitnell, Wife of/and James WHITNELL v. Dr. John G. MENVILLE, et al. |
| Court | Louisiana Supreme Court |
Russ M. Herman, Tonia D. Aiken, Herman, Herman, Katz & Cotlar, New Orleans, for applicants.
Chester A. Fleming, III, Boggs, Loehn & Rodrigue, Darryl J. Foster, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, for respondents.
Plaintiff Lorraine Whitnell and her husband filed this medical malpractice lawsuit against Dr. John G. Menville in 1986. It appears from the allegations of the petition that Dr. Menville last treated Mrs. Whitnell in 1980. Relying on La.R.S. 9:5628's provision that a medical malpractice action "shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect," the district court sustained Dr. Menville's peremptory exception of prescription and dismissed plaintiffs' claim against that defendant. The court of appeal affirmed. 525 So.2d 361 (La.App. 4th Cir.1988). We granted a writ of review, 530 So.2d 553 (La.1988), to consider plaintiffs' argument that prescription was interrupted because Dr. Menville learned in 1980 that Mrs. Whitnell was in danger of developing cancer of the bladder, but failed to disclose this information to her, either at the time of his treatment or at any time thereafter.
For reasons hereafter set forth, we agree with the lower courts that plaintiff's claim against Dr. Menville is prescribed on the face of the petition. We also find, however, that prescription could have been interrupted, if, as plaintiffs argue, Dr. Menville learned of vital information regarding the patient's health but failed to disclose that information to her. Thus, we conclude that the claim against Dr. Menville should not be dismissed without plaintiffs' first having an opportunity, as provided by La.Code of Civ.Proc. art. 934, to amend their petition to allege facts which would remove the grounds for granting the exception of prescription. Therefore we reverse the judgments of the lower courts insofar as they dismissed plaintiffs' claim against Dr. Menville, and remand the case to the district court with instructions to allow the plaintiffs 30 days to amend their petition in accordance with the procedure provided by article 934.
The district court decided the peremptory exception based on its review of the pleadings and memoranda submitted by counsel. It does not appear that any testimony or written evidence was offered by any of the litigants at the hearing on the exception. Thus, in reviewing the prescription question, we are limited to the allegations of the petition.
The petition alleges that in October, 1984, Mrs. Whitnell was diagnosed as having cancer of the bladder. As a result of that condition, she received radiation treatments and underwent surgery which required the removal of her reproductive organs, appendix and bladder.
This action is brought against three physicians who treated plaintiff for bladder and urinary tract problems prior to her discovery in 1984 that she had cancer of the bladder. Those physicians are: Dr. Arthur Silverman, who treated plaintiff in 1983 and 1984; Dr. Ronald Swartz, who treated plaintiff in 1984; and Dr. Menville, who, as far as can be ascertained from the petition, last treated plaintiff in 1980.
This action was preceded by a 1985 lawsuit which plaintiffs brought against Dr. Silverman, alleging malpractice in connection with his treatment of Mrs. Whitnell's bladder condition. Dr. Menville was not named as a defendant in that suit. The 1985 suit was dismissed on an exception of prematurity, as the claim against Dr. Silverman had not been submitted to a medical review panel prior to institution of suit. After the dismissal of that suit, the claim against Dr. Silverman was submitted to a medical review panel, which in due course issued an opinion. Plaintiffs then instituted this suit (filed September 22, 1986) against Drs. Silverman, Swartz and Menville.
As regards Dr. Menville, the only defendant with whom we are concerned at this time, the petition alleges the following facts:
II.
The foregoing are the only factual allegations in the petition pertaining to Dr. Menville's treatment of Mrs. Whitnell. The following assertions are made in the petition regarding the legal basis of plaintiffs' claim against this physician:
XIII.
Dr. John G. Menville was negligent and or/at fault and breached a contractual duty to petitioners which caused the injuries sustained in the following non-exclusive particulars:
(A) Failure to provide adequate and reasonable health care;
(B) Failure to timely and properly diagnose and/or determine that Lorraine Whitnell had carcinoma of the bladder;
(C) Failure to timely and properly perform the proper diagnostic tests and procedures to determine the cause of severe pain and recurrent tract infections;
(D) Failure to timely and properly perform x-rays;
(E) Failure to timely and properly perform visual examinations of petitioner;
(F) Failure to timely and properly perform a cystoscopy;
(G) Failure to timely and properly prescribe appropriate diagnostic tests, studies and medication for the serious medical condition of the plaintiff;
(H) Failure to properly examine and treat plaintiff with diagnostic tests and comparisons at a point in time at which she could have been cured or at a time where the probability of cure would have been greatly enhanced;
(I) Failure to monitor patient's condition;
(J) Failure to timely consult the necessary specialist to properly treat and diagnose the petitioner's underlying medical problem;
(K) Failure to timely and properly treat the condition which resulted in a loss of life expectancy and change [sic] for survival;
(L) Failure to perform complete history and physical examinations of the patient;
(M) Failure to timely diagnose a life threatening condition, namely, cancer; and
(N) Failure to recognize or communicate the information that there was evidence of a precancerous lesion present in May of 1980.
(emphasis added)
The gist of plaintiffs' factual and legal allegations against Dr. Menville, as particularly shown by the allegations italicized above, is that when Dr. Menville treated Mrs. Whitnell in 1980, he negligently failed to discover that she had a precancerous lesion "which had a high likelihood of developing into clear cut cancer of the bladder." While plaintiffs argue in brief that Dr. Menville correctly diagnosed Mrs. Whitnell's condition but failed to disclose that diagnosis to her, no such allegation is made, directly or indirectly, in the petition. This is, at least insofar as the present allegations of the petition pertaining to Dr. Menville are concerned, a negligent misdiagnosis case. We treat it as such for the purpose of determining whether the claim is prescribed on the face of the petition. 1
La.R.S. 9:5628(A) provides in pertinent part that:
A. No action for damages for injury or death against a physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year of the alleged act, omission or neglect, or within one year of the date of discovery of the alleged act, omission or neglect; however even as to claims filed within one year of 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.
As regards Dr. Menville, the "alleged act, omission or neglect" identified in the petition is his failure to correctly diagnose the patient's bladder condition in 1980. Under La.R.S. 9:5628(A), the allowable period for filing suit on such a claim is one year from the date of the negligent act or one year from the date plaintiff discovered the negligent act, but, "in all events ... at the latest" three years from the negligent act. As the negligent act occurred in 1980, and this suit was not brought until 1986, the claim against Dr. Menville is prescribed on the face of the petition.
Nor do we find any basis for concluding, at least from the allegations of the petition, that prescription was interrupted. Plaintiffs argue that the predecessor action in 1985 against Dr. Silverman interrupted prescription against Dr. Menville, for the reason that Drs. Menville and Silverman are joint tortfeasors and suit against one joint tortfeasor interrupts prescription under La.R.S. 9:5628(A) as to any other joint tortfeasors. It is true, as we held in Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986), that the prescriptive period provided by La.R.S. 9:5628 can be interrupted in this fashion, but only for conduct for which both tortfeasors are responsible, and which, as regards the defendant in the first filed suit, was not prescribed when that suit was filed. The 1985 suit against Dr. Silverman could only have been timely concerning conduct of Silverman's occurring within three years preceding institution of suit or no sooner than 1982, and there is no allegation that Dr. Menville committed a tort in 1982 or later. The claim against Dr. Menville for negligently misdiagnosing the patient in 1980 precribed, at the latest, in 1983, and...
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