Williams v. TRI-STATE PHYSICAL THERAPY INC., 37,262-CA.

• Decision Date: 25 June 2003
• Docket Number: No. 37,262-CA.,37,262-CA.
• Citation: 850 So.2d 991
• Parties: Billy R. WILLIAMS, et al., Plaintiff-Appellant, v. TRI-STATE PHYSICAL THERAPY INC., et al., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

850 So.2d 991

Billy R. WILLIAMS, et al., Plaintiff-Appellant, v. TRI-STATE PHYSICAL THERAPY INC., et al., Defendant-Appellee.

No. 37,262-CA.

Court of Appeal of Louisiana, Second Circuit.

June 25, 2003.

Klotz, Simmons & Brainard, by Eron J. Brainard, for Appellant.

Lunn, Irion, Salley, Carlisle & Gardner, by Charles W. Salley, Gregory S. Barkley, Shreveport, for Appellee.

Before WILLIAMS, GASKINS and MOORE, JJ.

MOORE, J.

Billy R. Williams ("Billy") and his wife, Sharon A. Williams¹ ("Sharon"), appeal the trial court's granting of Tri-State Physical Therapy, Inc. ("Tri-State") and Amy Barnes' ("Amy") Exception of Liberative Prescription on November 4, 2002, which dismissed Billy's claims with prejudice. We find the trial court was manifestly in error and clearly wrong in sustaining the exception and thus, we reverse the judgment of the trial court and remand for further proceedings.

Factual Background

Billy was involved in a work-related accident on or about June 15, 1997, when he injured his lower back at the L5-S1 lumbar disk while moving the fifth wheel on his tractor-trailer rig. At the time of his injury, Billy was employed as a truck driver for Roadway Express ("Roadway"). He initially presented himself for medical care in Texas where he was working. On June 1, 1997, he sought the medical care of Lewis C. Jones, M.D. of the Orthopaedic Specialist Center ("the Center") in Shreveport, Louisiana, for his back injury. While receiving medical treatment at the Center, Billy began treatment under the care of Austin Gleason, M.D. ("Gleason"), a partner of Dr. Jones. Gleason prescribed a conservative treatment regimen for Billy including physical therapy and medication for his rehabilitation.

Billy was referred to Tri-State by Gleason for therapy which included a "work hardening" program to assist Billy in getting back to his job. The relationship between Gleason and Tri-State was such that Gleason would order certain physical therapy routines and tests for Billy, and Tri-State in turn would report to Gleason regarding Billy's therapy performance and test results. Tri-State made no decisions relative to Billy's therapy regimen and relied solely on the therapy procedure directives of Gleason. During Billy's therapy program, Roadway required Billy to undergo a Functional Capacity Evaluation ("FCE") with Tri-State, which was ordered by Gleason to ascertain Billy's medical standing for returning to work. Billy's therapy records indicate that as of January 20, 1998, he was successfully lifting 25 pounds, which was required of him to be able to return to work.

On or about January 28, 1998, Gleason noted in a Physical Therapy Team Conference Report ("Report") to Tri-State, that although Billy had achieved his lifting potential of 48 pounds through therapy and work hardening, Gleason was concerned that the FCE requirement of lifting 100 pounds would expose Billy to an undue risk of re-injuring his back. The FCE was scheduled for February 13, 1998 and was conducted by therapist, co-defendant and co-appellee, Barnes. During the FCE, Billy was required to lift 100 pounds of weight under the supervision of Barnes, and during the lift, Billy experienced severe pain in his lower back. Gleason's post-February 13, 1998 Progress Report ("report") notes reflect that Roadway required that Billy successfully lift 100 pounds during the FCE caused Gleason some concern.

Following the FCE, Billy continued treatment with Gleason for his back pain, as well as therapy with Tri-State, as ordered by Gleason. Gleason's report of June 8, 1998, shows that because Billy was still experiencing pain during therapy treatments he advised Billy that his injury sustained during the FCE on February 13, 1998 had "aggravated his situation and set him back significantly." Following the February 13, 1998 re-injury, Billy experienced the ebb and flow of progress and set-backs, as are reflected in Gleason's medical chart, records and reports. For example, Gleason noted on March 19, 1998 that Billy's February 13, 1998 injury was hopefully a "temporary exacerbation," while the April 3, 1998 progress report noted that Billy seemed to be recovering from the February 13, 1998 incident. Gleason's May 1998 report notes indicate that Billy was continuing to improve, although with continued back pain. Gleason's June reports indicated that while Billy was engaged in work hardening to return to work, the February 13, 1998 incident aggravated Billy's back condition and set him back significantly.

On June 17, 1998, in a Physical Therapy Team Memo, Gleason removed work hardening from Billy's regimen due to the back pain Billy was experiencing. Gleason then decided to treat Billy with medication only. On June 29, 1998, Gleason's report noted that although Billy continued with therapy, his back problem continued to worsen. As a result, Gleason ordered a repeat MRI to check for any lumbar spine changes in Billy's lower back at the L5-S1 disk level. On July 1, 1998, Gleason noted that the repeat MRI, administered that day, showed that Billy's degenerated and bulging disk at L5-S1 was "worse" than reflected on the previous, pre-February 1998, MRI. That same day, Gleason showed Billy the MRI results. Gleason then concluded that conservative treatment for Billy had failed and recommended surgical intervention. His report noted that Billy was obtaining a second opinion. Gleason's July 22, 1998 report reflected that a second opinion relative to Billy's back injury and treatment was provided by Carl Goodman, M.D., who recommended further physical therapy prior to surgery. In January 1999, Billy underwent a surgical fusion and fixation in his lumbar spine at L5-S1. Following thereafter, Billy continued therapy treatment with Tri-State until October 1998 and with Gleason until June 29, 1999.

By certified letter from their attorney dated June 7, 1999, Billy filed with the Louisiana Division of Administration ("Division"), a claim for medical malpractice against Tri-State, Gleason, Barnes, the Center, and Liberty Mutual Insurance Company. Billy was advised by certified mail dated July 30, 1999 from the Malpractice Insurance Director for the Patient's Compensation Fund ("PCF") that Tri-State was not qualified under the PCF. Later, by certified letter dated September 8, 1999, Billy was notified by the PCF that Barnes was likewise not qualified under the PCF.

On September 17, 1999, Billy instituted suit in the First Judicial District Court against Tri-State and Barnes for the injuries Billy received on February 13, 1998. Tri-State and Barnes filed an Exception of Prescription alleging Billy's claim was prescribed on its face. The trial court set the exception for hearing on September 30, 2002. At the hearing, the parties entered into the following stipulations:

1. All records and bills associated with the care provided to Billy by Gleason and Tri-State were deemed authentic and admissible into evidence;

2. Billy filed a request for a Medical Review Panel on June 7, 1999; and

3. Billy received notification from the PCF dated July 30, 1999 that Tri-State was not a qualified health care provider and Billy received notification from the PCF dated, September 8, 1999, that Barnes was not a qualified health care provider under the PCF.

The trial court took the matter under advisement and on October 21, 2002, rendered judgment, without reasons, sustaining the exception and dismissing Billy's claim with prejudice. This appeal followed.

Discussion

Initially, we note that Billy's claim is subject to the liberative prescription of one year from the day that injury or damage is sustained, as a delictual action pursuant to La. C.C. art. 3492, as physical therapists are not listed among those health care providers covered under the special periods for prescription set forth in La. R.S. 9:5628, regulating actions for medical malpractice. Under the provisions of La. C.C. art. 3492, if prescription is evident on the face of the pleadings, the burden of proof shifts to the plaintiff to show that the action has not prescribed. See, Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502

. Furthermore, when the plaintiff's petition shows on its face that the prescriptive period has run, and the plaintiff relies on a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Holmes v. Lee, 35,021 (La. App.2d Cir.9/28/01), 795 So.2d 1232, 1235,

citing, Burdeaux v. Cline, 626 So.2d 1205 (La.App. 2d Cir.1993),

writ denied,

93-3132 (La.2/11/94), 634 So.2d 833.

Billy urges, in his third assignment of error, that by his filing a request for a Medical Review Panel within one year of Billy's discovery date of his back re-injury, his claim is timely pursuant to La. R.S. 40:1299.47(A)(2)(a), infra.

In response to this assignment of error, Tri-State and Barnes argue that Billy's filing of a claim with the Medical Review Panel on June 7, 1999 was not timely as Billy had actual notice of his back re-injury on February 13, 1998 during the FCE, while performing the 100 pound test required by Roadway. Tri-State and Barnes argue specifically that Billy's complaints for over three months to Gleason and Tri-State regarding back pain following the FCE demonstrates Billy's full awareness of his re-injury during the FCE. Lastly, Tri-State and Barnes argue that, notwithstanding Billy's knowledge for the three months following the FCE, Billy's June 2, 1998 comment to Barnes that "If I just hadn't lifted that 100 pounds, I'd be doing ok" reflects Billy's requisite knowledge to commence prescription and thus, Billy's June 7, 1999 claim filed with the Division had prescribed.

The Reasonable Date of Discovery

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Campo, supra at 510, citing, Percy v. State, Through E.A. Conway Memorial Hosp., 478...