Summary Judgment Obstacle for Delayed Suit in Medical Malpractice Case

Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

The Louisiana Third Circuit Court of Appeal addressed two legal issues in this case: the trial court finding (1) that the running of prescription was not suspended pursuant to the Medical Malpractice Act (La.R.S. 40:1299.47(A)(2)(a)) and (2) that Mr. Milbert and his wife were not prevented from timely bringing suit due to circumstances beyond their knowledge or control.

When a party is unsatisfied with a trial court’s finding on a motion for summary judgment, he may file an appeal. Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. According to the La.Code Civ.P. art. 966(B), “[s]ummary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.”

According to the Louisiana Third Circuit Court of Appeal, “[f]acts are material if they determine the outcome of the legal dispute.” The Court of Appeal found the Milberts contention that the trial court erred in finding that the running of prescription was not suspended pursuant to the Medical Malpractice Act to be without merit. The Court of Appeal found, like the trial court, that the Act did not suspend prescription in this particular case because Dexcomm is not considered a healthcare provider covered by the Act.

Further on appeal, the Milberts argued that they were not aware until November 2009 that Dexcomm failed to forward their messages to the doctors and as such the period of prescription was interrupted. In affirming the judgment of the trial court, the Court of Appeal found that the Milberts were not prevented from timely bringing suit due to circumstances beyond their knowledge or control because they acknowledged in their original complaint that they were told, on the date of Mr. Milbert’s second surgery, that Dexcomm failed to their forward calls.

In the end, this case illustrates the importance of prescription and preemption periods in relation to summary judgment and the Medical Malpractice Act. It is worth noting that Louisiana law contains many complicated prescription and preemption statutes, so it is essential to find experienced lawyers who can advise on such matters which can make or break a case.