Medical Malpractice Claims Rely Heavily Upon Prescriptive Period

In Louisiana, a civil law doctrine known as “prescription” limits the amount of time that may pass before someone files a lawsuit. Prescription is the extinction of a right of recovery and occurs due to a failure to exercise that right over a period of time. In other states, this doctrine may be referred to as a statute of limitations or a statute of repose. Louisiana’s prescription period for filing a lawsuit based upon personal injury is one year. Often this doctrine is not an issue in litigation, but in a recent case in St. Tammany Parish, one doctor’s objection of prescription has fundamentally altered the life of a woman, alleging to have suffered from medical malpractice.

On November 21, 2008, Glenda DeBram was hospitalized by her attending physician, Dr. Keshelava, after complaining of painful urination, fever, and cough. On October 15, 2009, pursuant to LSA-R.S. 40:1299.47(A)(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund. According to her request, Ms. DeBram alleged that St. Tammany Parish Hospital and Dr. Keshelava fell below the standard of care owed to her between November 21, 2008 and October 20, 2009. Subsequently, Dr. Keshelava filed a peremptory exception raising the objection of prescription, arguing that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, which was more than one year following her discharge from the hospital stay during which she claims Dr. Keshelava and the hospital breached the standard of care. As such, on September 16, 2010, the trial court sustained the exception and dismissed Ms. DeBram’s medical malpractice claims.

The prescriptive period for a medical malpractice claim is contained in LSA-R.S. 9:5628A. Any action seeking damages, regardless of whether for a fatality or the severity of injuries, and whether against a doctor, nurse, or the hospital within which they work, may be brought unless the action is brought within 365 days (1 year) from when the incident or injury occurred or was found to have occurred, regardless of whether the act was that of unintentional or intentional neglect, omission or some other form of injury. Even with claims filed within the time limit, the law suit must be filed within three years of the incident’s occurrence, regardless of discovery

The statute above sets forth two prescriptive limits within which to bring a medical malpractice action namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act. According to the Louisiana Supreme Court, “if prescription is evidence on the face of the pleadings, the burden shifts to the plaintiff to show that the act has not prescribed.” Moreover, “[t]he plaintiff’s petition cannot be considered prescribed on its face if the plaintiff’s pleadings make a prima facie showing that it was filed within one year from the date of discovery and within a period of three years from the date of the alleged act, omission, or neglect.”

In the instant case, Ms. DeBram’s complaints or presented facts did not contain any allegations regarding an inability to discover the alleged malpractice acts against Dr. Keshelava. Therefore, contrary to the precedent set forth in the Campo case, Ms. DeBram failed to “allege any facts with particularity that indicated that the injury and its causal relationship to the alleged misconduct against Dr. Keshelava were not apparent or discoverable until within the year the suit was filed.” After reviewing Ms. DeBram’s supplemental and amending complaints, the Louisiana First Circuit Court of Appeals agreed with the trial court that the prescription was evidence on the face of the pleadings and that the burden shifted to Ms. DeBram to show that the action against Dr. Keshelava and the hospital was not prescribed.

According to the Court of Appeals, the Ms. DeBram’s initial complaint referred only to her initial admission to the hospital and the amending complaint contains no allegations regarding any additional treatment by Dr. Keshelava. Thus, the First Circuit found that the amended complaint did not allege facts sufficient to constitute a continuing tort against Dr. Keshelava. Further, the Court of Appeals found Ms. DeBram’s argument that she received incomplete records from the hospital, and it was not until she received said records on October 5, 2009, that there was any indication that something was wrong to be unconvincing. Thus, the First Circuit affirmed the judgment of the trial court and upheld the dismissal of Ms. DeBram’s claims against the hospital and Dr. Keshelava.

As you can see, in order to be viable, any legal malpractice action must be commenced within the time limits set forth in LSA-R.S. 9:5628A. If you do not file a legal malpractice lawsuit before the expiration of the prescription, your lawsuit will be forever barred. Thus, it is essential that you talk to a lawyer and make sure you understand how prescription applies to your case.