Author: Andrew "Drew" Blanchfield

Court Finds Medical Malpractice Claim Prescribed, Rejecting Argument Based Upon “Discovery Rule”

03.11.2024

For medical malpractice claims in Louisiana, the general rule is that a plaintiff has one year from the date of the alleged malpractice to bring his claim for damages. However, La. R.S. 9:5628 also recognizes an exception to this one-year prescription period, when the plaintiff claims he was unaware of the malpractice and there was a delay in the discovery of the alleged malpractice. This is known as the “discovery rule.”

Under the discovery rule, the prescriptive period begins to run on the date the injured party obtains actual or constructive knowledge of facts “indicating to a reasonable person that he or she is the victim of a tort.”^ Constructive knowledge is “whatever notice is enough to excite attention and put the injured person on guard and call for inquiry.”^ When a plaintiff has knowledge of facts strongly suggesting that the complaint may be the result of improper treatment, and the medical provider has not misled the patient, then “the cause of action is reasonably knowable to plaintiff.”*

The court recently examined these principles in In re Singleton, where the plaintiff relied upon the discovery rule to assert a malpractice claim against his medical provider. The plaintiff alleged his physician negligently performed a lumbar procedure in May 2017. The plaintiff initiated proceedings against the medical provider on February 6, 2019, alleging he did not discover the alleged malpractice until February 10, 2018, when he experienced a “sudden onset of excruciating pain.”

In response to the plaintiff’s claim, the medical provider produced evidence to show the plaintiff went to the emergency room on November 21, 2017, with complaints of severe lower back pain that radiated into his hips and legs. Based upon this evidence, the defendant doctor argued the actual date of delayed discovery was November 21, 2017, and that the plaintiff’s claims prescribed because they were filed more than one year after that date.

The court agreed. It held the medical provider met his burden of proof when he presented evidence that “severe” or “excruciating” pain, which allegedly advised plaintiff of his claim, was first experienced in November 2017, not February 2018 as alleged in plaintiffs’ complaint. The plaintiff was unable to produce any evidence to support the allegations in his complaint about the timing of his episode of pain or to refute the medical provider’s arguments. Therefore, the plaintiff could not show his claim of delayed discovery until February 2018 was “reasonable.” The court affirmed that the date of discovery was in November 2017, and therefore the plaintiff’s claims prescribed before suit was filed in February 2019.

References:

In re Singleton, 23-190 (La. App. 5 Cir. 2/28/24), 2024 WL 826169.

^Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502.

*Carter v. Haygood, 892 So.2d 1261, 1273 (La. 2005).

Court Finds Legal Malpractice Claim Perempted Because the Client Knew It Received “Bad Advice” More than One Year Before Suit Was Filed

02.28.2023

Legal malpractice claims in Louisiana are governed by a peremption period that cannot be interrupted or suspended. La. R.S. 9:5605(A) provides that a legal malpractice claim must be brought one year from the date of the alleged malpractice, or within one year from the date the alleged malpractice should have been discovered. However, even when a claim is filed within one year of discovery, it must be filed within three years of the date of the alleged malpractice. If a party fails to assert a legal malpractice claim before the peremption period expires, the right to bring the claim is lost.

The Louisiana Supreme Court holds that “peremption commences to run in a legal malpractice case when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice.” In Crosby v. Waits, Emmett, Popp & Teich, LLC, the court recently examined the types of circumstances that should inform a plaintiff that an act of alleged malpractice occurred, which would trigger the peremptive period in which the plaintiff’s claim must be filed.

The plaintiff in Crosby owned 75% of a company and was in the process of buying out the minority stakeholder. The company was involved in litigation at the time. Initially, the minority stakeholder maintained all of the recovery and risk related to the suit. In April 2016, an attorney advised the plaintiff to accept an offer to split the recovery and risk in the suit 50/50 as part of the sale. The plaintiff then accepted the 50/50 offer. The litigation concluded after the sale, in February 2018, and resulted in an adverse judgment for which the plaintiff was responsible pursuant to the 50/50 agreement.

The plaintiff filed suit on February 12, 2019, within one year of the verdict in the underlying litigation, and claimed that its attorney committed malpractice when he advised that plaintiff accept the offer to split the recovery and risk in the suit. Specifically, it was alleged the attorney failed to examine the nature of the litigation or discover that the seller’s employees were aware the suit bore serious risk. The plaintiff’s representative testified that he did not keep track of the litigation and therefore could not have known the attorney engaged in the alleged malpractice until the jury rendered its verdict in the underlying suit.

However, the minority stakeholder testified that he knew the 50/50 offer was a bad deal for the plaintiff. Another employee testified he thought the risk of loss in the underlying suit was apparent to everyone involved. The court agreed. Based upon the evidence presented, “it should have been obvious to all concerned that the 50/50 option was favorable” to the minority stakeholder, who was adverse to the plaintiff’s interest.

The court held that the plaintiff should have known its attorney may have committed an act of malpractice when he advised it to accept the 50/50 split before the underlying litigation concluded. Accordingly, suit was not filed within one year of when the plaintiff should have known the alleged act of malpractice occurred. The plaintiff’s claims that it lacked such knowledge could not stand up to conflicting evidence. Thus, the claim was peremepted, and the plaintiff’s suit was dismissed.

Case References:

Crosby v. Waits, Emmett, Popp & Teich, LLC, 2022-0395 (La. App. 4 Cir. 11/21/22), 352 So. 3d 145.

Jenkins v. Starns, 2011-1170, p. 15 (La. 1/24/12), 85 So.3d 612, 621.

Keogh Cox Partner Secures Defense Verdict in Fatal Shooting Case

11.16.2017

Andrew Blanchfield, Managing Partner at Keogh Cox, represented the Louisiana Office of State Police and a State Trooper in a recent wrongful death jury trial in the 19^th Judicial District Court in Baton Rouge. In the case, Andrew Arway was fatally shot during a traffic stop in Avoyelles Parish on May 24, 2004 by a Louisiana State Trooper.

The Trooper’s dash cam video established that the traffic stop was initiated at 4:30 a.m. However, Arway did not initially stop his vehicle and instead drove forward slowly for several hundred feet. Once Arway’s vehicle came to a stop, he exited, placed his hands in his pockets, and began to move to the front of his truck, ignoring the Trooper’s commands. Arway then made the motion of searching for a weapon. At one point, he formed his hands as if he held a gun and yelled “freeze.” In response, the Trooper loudly commanded Arway to place his hands where they could be seen. Arway again ignored the Trooper’s commands and moved towards a ditch, outside of camera view.

The Trooper testified that Arway continued to make gestures as if he was looking for a weapon around his ankle. According to the Trooper, he fired two shots when he lost sight of Arway’s hands. No weapon was found on Arway and his blood alcohol level was twice the legal limit.

Arway’s wife and children brought a wrongful death action alleging excessive force. At trial, Blanchfield argued that the Trooper’s force was reasonable and that the Trooper justifiably feared for his life in view of Arway’s bizarre and threatening behavior. Evidence was also presented that Arway’s behavior was consistent with a “suicide by cop” theory.

The Baton Rouge jury deliberated for 90 minutes and concluded that the Trooper’s use of force was reasonable under the circumstances.

Andrew “Drew” Blanchfield is a litigator with over 30 years of courtroom experience. Litigating dozens of complex jury trials in state and federal courts, Drew has offered representation to various sectors to include industrial accidents, business litigation, oil and gas, healthcare, and professional liability defense. When he is not advising his corporate clients or in a court room (or on the tennis court), Drew spends time with his wife and four children.