Medical Malpractice Subject to Prescription Limits

Doctors at the Women and Children’s Hospital in Lake Charles, Louisiana, botched Beverly Lebouef’s surgery in 2003. Eventually Lebouef sought legal advice and brought action against her surgeon. Much later in the pre-trial phase, arguably over a year later, she added a new doctor to his lawsuit who had helped perform one of the surgeries. The question is not about prescribed medication, but “prescription periods” and the accompanying rules.

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription begins when a plaintiff becomes aware of facts that would suggest to a reasonable person that he or she suffered injury that could be remedied by law. Prescription starts even if the plaintiff does not have actual knowledge, but constructive knowledge, which is the minimum amount of notice required to make the injured plaintiff aware and allow for the injured plaintiff to inquire further. If the notice is enough to make reasonable victim aware, then prescription has begun.

A plaintiff’s apprehension that something is wrong does not start prescription except when the plaintiff knew or should have known through reasonable diligence that the plaintiff’s issues may have resulted from medical malpractice. The crucial issue is the plaintiff’s reasonableness in taking action or not acting, which considers the plaintiff’s education, intelligence, symptom severity and the defendant’s conduct.

However, courts may find that the doctrine of contra non valentem applies. This doctrine is an exception to the general rules of prescription, which means that prescription does not run against a person who is unable to bring an action or a person who for some reason is unable to act. There are four situations in which the doctrine may apply, but let’s focus on the fourth one: (4) where the cause of action was not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. This last situation is the one applicable to most medical malpractice cases.

LeBouef’s botched surgery occurred in July 2003. On July 2, 2004, she filed a complaint against Dr. Chua, who had performed one of the surgeries. On November 14, 2005, LeBouef amended her complaint to add Dr. O’Donnell. By the plain reading of the medical malpractice statute, this would be outside the one year prescription period. However, the court held that the doctrine of contra non valentem applied, more specifically, situation number four.

The court found that LeBouef did not know of the cause of action until much later than July 2003. To court pointed to the fact that the surgery report makes no reference to the degree of Dr. O’Donnell’s assistance, even though he was much more than an assistant to the procedure. LeBouef claimed that given her multiple surgeries and following long recovery period, she did not know that she could claim medical malpractice until early 2004, almost a full year later. She finally contacted an attorney in June of 2004 and by July 2, LeBouef’s attorney requested a review panel with Dr. Chua as the defendant. On November 9, 2005, when Dr. Chua’s deposition occurred, LeBouef became aware of how involved Dr. O’Donnell was in her second surgery to fix the issues arising in the first surgery. Five days later, Lebouf amended the complaint to include Dr. O’Donnell as a defendant.

Dr. O’Donnell argued that the one year prescription period had run based on the fact that LeBouef knew or should have known he was a participant in the surgery, especially since she hired an medical expert to review her files. Unfortunately, in Dr. Chua’s response to the claim filed against her, Dr. Chua did not point out Dr. O’Donnell’s participation in LeBouef’s 2003 surgery. Since there was no information pointing to Dr. O’Donnell, LeBouef’s medical expert found nothing in his evaluation of the claim to suggest that anyone other than Dr. Chua has any potential liability. As a result, the prescription period did not start until later, arguably November 9th, for Dr. O’Donnell. Therefore, the appellate court upheld the jury verdict against Dr. O’Donnell and all of his appeals were dismissed.

This “time window” is a crucial aspect of medical malpractice claims and serves many purposes. If the prescription period rules were different, it would force malpractice victims to name every doctor on the medical record in order to satisfy the prescription requirement. This would create problematic public policy in that it would require a plaintiff to name any and every doctor not only on her medical record, but even doctors peripherally associated with the procedures. To deny a plaintiff the right to rely on the content of a medical record and require a blanket filing would be burdensome as well. Understanding your rights under the medical malpractice statute is half the battle, but financial hardship as a result of medical malpractice prescription technicalities can be prevented.