Interrupted by Silence: Medical Malpractice Prescription

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).

The Louisiana Supreme Court in Petit- Blanc vs. Charles and State Farm, 2021-CC-00094 (La. 4/20/21), ____ So. 3d ______ reaffirmed a strict reading of La. R.S. 13:850. This statute allows the filing of pleadings with a Clerk of Court by facsimile transmission. As currently drafted, the statute provides that the parties shall “deliver” the original document to the clerk within 7 days of the facsimile transmission. In Petit-Blanc, the Supreme Court considered what happens when the original pleading is sent through the mail but not received by the clerk within the 7-day period. Under the facts of the case, the plaintiff’s suit would be prescribed if the act of mailing was insufficient delivery.

Citing Black’s Law Dictionary, the Court found that “delivery” is defined as “the act by which the res or substance thereof is placed within the actual or constructive possession or control of another.” The Court concluded that “merely transmitting an original document within the deadline is insufficient; rather, a litigant must establish the document was delivered to the clerk within the deadline.”

The Court noted that, while the plaintiff established she sent her original petition to the clerk’s office well within the 7-day deadline, “she cannot establish the petition was placed in the actual or constructive possession of the clerk’s office” in a timely manner. As such, the Court found that the “facsimile filing is without force and effect and could not serve to interrupt the prescriptive period.” Accordingly, the Supreme Court granted the writ filed by the defendants, maintained their peremptory exception of prescription, and dismissed the plaintiff’s lawsuit with prejudice.

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.