Court: Louisiana Court of Appeal; May 23, 2019; Louisiana; State Appellate Court
In a medical malpractice case involving alleged fraudulent concealment of a metal foreign object left in a patient during surgery, Gerard Lindquist appeals a May 8, 2018 trial court judgment that upheld an exception of prescription filed by Ochsner Clinic Foundation and Dr. Joseph M. Zavatsky. The case details the events surrounding Lindquist's spinal surgery on August 22, 2013, performed by Dr. Zavatsky. Following the surgery, Lindquist experienced severe symptoms, leading to multiple hospital visits where diagnostic imaging revealed a metal artifact in his spine, but he was not informed of its existence until May 25, 2017. Lindquist filed a malpractice claim on September 14, 2017, after finally being informed about the artifact.
Ochsner and Dr. Zavatsky argued that Lindquist's claims were barred by the three-year prescriptive period for medical malpractice actions under Louisiana law, as the claim was filed four years after the surgery. Lindquist countered that the defendants' failure to disclose the artifact constituted fraudulent concealment, thus delaying the commencement of the prescriptive period until he was informed of its presence. The trial court ruled in favor of the defendants, dismissing Lindquist's case with prejudice. Lindquist's motion for a new trial was denied, prompting his appeal regarding the prescription ruling. The appellate court reversed the trial court's decision.
The case addresses whether a health care provider's failure to disclose the retention of a metal object in a patient's back after surgery constitutes concealment or fraud that could suspend the prescriptive period for medical malpractice claims under La. R.S. 9:5628. The discussion will first outline the standard of review for such cases, noting that the burden of proof typically lies with the exceptor, but shifts to the plaintiff if prescription is clear from the pleadings. At hearings on peremptory exceptions, evidence can be introduced, but absent evidence, the court must rely on the petition's factual allegations. The trial court's decision is reviewed de novo when only legal issues are in dispute, as was the case here since no evidence was presented before the ruling.
La. R.S. 9:5628 establishes a one-year prescriptive period for filing medical malpractice actions from the date of the alleged act or its discovery, with a maximum of three years allowed regardless of the discovery date. This prescriptive framework applies to various licensed health care providers.
In Borel v. Young, the Louisiana Supreme Court analyzed whether the one and three-year limitation periods established in La. R.S. 9:5628 are peremptive or prescriptive. The Court reaffirmed its prior ruling in Hebert v. Doctors Mem'l Hosp. that these periods are prescriptive, meaning they prevent the enforcement of a right but do not extinguish the right itself. Unlike peremption, which cannot be interrupted or suspended, prescription allows for suspension or interruption under certain conditions, specifically through the doctrine of contra non valentem, which prevents prescription from running against a party unable to act.
The contra non valentem doctrine serves as an exception to the general rule that prescription runs against all persons unless specified otherwise. It is grounded in the principle that one should not exploit their own wrongful conduct. The Louisiana Supreme Court identified four scenarios where contra non valentem applies: (1) when a legal cause prevents the court from acting on the plaintiff's actions; (2) when a condition prevents the plaintiff from suing; (3) when the defendant’s actions effectively prevent the plaintiff from pursuing their cause of action; and (4) when the cause of action is unknown or not reasonably knowable to the plaintiff. The applicability of contra non valentem is determined by the equitable nature of each case's circumstances.
The discovery rule, a subset of contra non valentem, is applicable in medical malpractice cases involving foreign objects left inside patients post-surgery, such as sponges or surgical gauze. The Louisiana Supreme Court, referencing La. R.S. 9:5628, has limited this rule, emphasizing that it examines what the plaintiff knew or should have known regarding the foreign object. Generally, the presence of a foreign object is prima facie evidence of negligence, allowing a layperson to infer negligence without expert testimony.
In the case of In re Med. Review Panel for Claim of Moses, a patient sued for failing to remove metal stitches, claiming the three-year limitation did not apply due to ongoing injury from the stitches. However, the Court ruled that the defendant's breach was singular and that the discovery rule could not indefinitely extend the prescriptive period, as neither party knew of the foreign object.
Additionally, the fraud exception under contra non valentem can suspend the prescriptive periods when a plaintiff is prevented from pursuing a claim due to the defendant's fraud. Louisiana courts maintain that no law should allow a party to benefit from their wrongdoing. The Supreme Court in Fontenot v. ABC Ins. Co. clarified that the fraud exception applies only when the healthcare provider has actively prevented the patient from pursuing a medical malpractice claim.
To apply the third category of contra non valentem, a physician's actions must constitute concealment, misrepresentation, fraud, or ill practices. In Fontenot v. ABC Ins. Co., the patient claimed that a doctor fraudulently concealed a drill bit slipping during surgery, resulting in severe nerve damage. However, the Supreme Court ruled that since the doctor informed the patient and her husband of the incident on the same day, the conduct did not meet the threshold for concealment or fraud, and thus the running of prescription on the malpractice claim was not suspended. The case emphasizes that while the healthcare provider's conduct is central to assessing this category, the patient's knowledge of the malpractice is also significant. If a patient has actual knowledge of the malpractice, courts are less likely to find fraudulent conduct that would delay filing a claim. In contrast, when a plaintiff lacks knowledge of the wrongdoing and can demonstrate fraudulent conduct by the tortfeasor, prescription can be suspended until the plaintiff is informed of the facts, as evidenced in Lennie.
In the current case, the trial court incorrectly applied the 'continuous treatment rule' from Carter v. Haygood rather than following the Fontenot standard. In Carter, a patient alleged malpractice after dental procedures led to complications. Although initially finding in favor of the patient, the Third Circuit later ruled that the patient's claim had prescribed since the tooth extraction was immediately apparent and the claim was not filed within one year. The Supreme Court reversed this decision, stating that the dentist's repeated reassurances had effectively lulled the patient into inaction, justifying the application of contra non valentem to suspend the running of prescription. The Court noted that this category addresses situations where a plaintiff is misled or kept ignorant of their rights due to the defendant's actions or failures.
The Court established a 'continuing treatment rule' for medical malpractice cases, paralleling the 'continuing representation rule' in legal malpractice, which necessitates that a plaintiff who is aware of potential malpractice must show (1) a substantial continuing treatment relationship with the physician, and (2) that the physician's actions prevented the plaintiff from pursuing a claim (e.g., by attempting to fix the alleged malpractice). In this case, the trial court found Mr. Lindquist's claim prescribed due to a lack of continuous treatment after February 17, 2014. However, the court erred by not examining whether the defendant's conduct constituted concealment or fraud, as required under the doctrine of contra non valentem. Unlike Carter, where the patient was aware of the issues and relied on the dentist's assurances, Mr. Lindquist claimed ignorance of a foreign metal object left in his body post-surgery, asserting that the medical providers had knowledge of this but failed to disclose it. This situation creates a reasonable expectation that the physician would inform the patient of significant medical errors. The Court in Carter indicated that prescription could be tolled if the physician misleads the patient during ongoing treatment. Therefore, the continuous treatment rule does not apply to Mr. Lindquist's claims, necessitating a return to the standard set in Fontenot to evaluate whether the defendants' actions amounted to concealment or fraud that impeded timely filing of his malpractice claim.
The trial court accepted the defendants' arguments that silence, without additional acts of concealment, does not amount to fraud, and that Mr. Lindquist could not claim fraud since medical records were accessible to him. Under Louisiana Civil Code art. 1953, fraud involves misrepresentation or suppression of truth intended to gain an unjust advantage or cause a loss to another. Fraud can arise from silence if there is a duty to speak, particularly in doctor-patient relationships, as established in prior cases. At this preliminary stage, the court does not determine if the defendants breached any duties, but finds that failing to disclose significant medical findings constitutes fraud, which hindered Mr. Lindquist from filing a malpractice claim. Consequently, the prescription period was suspended until he learned about a foreign object left in his back, starting the one-year period on May 25, 2017. Mr. Lindquist filed his claim on September 14, 2017, making it timely. The defendants contended that the availability of diagnostic images provided constructive knowledge of negligence, but the court ruled that mere availability does not equate to constructive knowledge sufficient to trigger the prescription period. The court emphasized that a plaintiff's knowledge must be evaluated based on what they actually knew, not what they could have discovered. Mr. Lindquist was unaware of the foreign object until May 25, 2017.
The argument that the patient should have been aware of a metal foreign object left in his back during surgery and sought medical records is deemed unreasonable, as individuals typically do not recognize such negligence. The defendants assert that a layperson, like Mr. Lindquist, would have identified the negligence from x-rays and sought legal counsel immediately; however, this assumption suggests intentional concealment of the error by the defendants. The court concludes that the healthcare provider's failure to disclose the foreign object effectively barred Mr. Lindquist from filing his claim. Under the doctrine of contra non valentem, the statute of limitations was suspended until Mr. Lindquist became aware of the object. Consequently, the trial court's decision to uphold the defendants' exception of prescription is reversed. The complaint details procedures Mr. Lindquist underwent, but the defendants provided no evidence supporting their claims, relying solely on Mr. Lindquist's medical review panel request. The court highlights the harsh outcomes for uninformed plaintiffs, referencing a similar case where a patient's claim was barred due to delayed discovery of a foreign object. Although some states have enacted discovery rules for such cases, Louisiana has not. The ruling also notes exceptions for fraud in professional liability statutes.
In Kirby v. Field and subsequent cases, Louisiana courts have addressed various aspects of medical malpractice law, including the start of prescription periods and the continuous representation rule. The prescription period for a foreign object case begins when a patient is informed about the object by a medical professional, as seen in Davidson v. Glenwood Resolution Authority, Inc. The continuous representation rule allows patients to rely on their healthcare providers' expertise without needing to question their methods. While fraud allegations typically require particularity, exceptions apply during medical panel reviews, as established in Perritt v. Dona. Liability can arise from acts of omission, provided there is a duty created by the relationship between the parties, as discussed in Plaquemines Parish Commission Council v. Delta Development Co. Inc. Furthermore, the Louisiana Legislature has instituted an "apology law" (La. R.S. 13:3715.5) permitting healthcare providers to express regret for adverse outcomes without admitting liability, promoting open communication while protecting providers from legal repercussions.
