Time is of the Essence in Medical Malpractice Lawsuits

time_take_time_cosmetics-1024x652When it comes to medical malpractice, time can be both a friend and a foe. Trusting doctors to safeguard the well-being of our loved ones makes the process of bringing a lawsuit challenging and emotionally charged. Yet, within the legal field, there exist specific time frames and procedural intricacies that can make or break a case. Once the clock runs out on a particular timeframe, a lawsuit is deemed barred, leaving individuals without recourse. In the midst of this intricate dance between justice and time, the story of Rita Foster and her family shines a light on the importance of understanding legal procedures and seeking qualified legal representation.

In August of 2012, Rita Foster was hospitalized, during which time Dr. Olisa, a physician at Ochsner Health System, ordered that Foster have a CT scan of her chest. When a 2-centimeter speculated appeared on her lung, Olisa recommended that Foster have a follow-up CT scan in three to six months. Foster’s children (plaintiffs) claimed there was no documentation of this recommendation in any medical records and thus contributed to Foster not obtaining the recommended follow-up for the CT scan of her chest. 

In the following days and years, Foster was treated for other issues by multiple physicians and healthcare providers working within and outside the Ochsner Health System, with no other communication to order a repeat CT scan.

In 2016, Foster was evaluated by a pulmonologist and underwent a CT scan of her chest, which revealed a mass and multiple nodules in both of her lungs, revealing metastatic lung cancer and other medical issues. The oncologist opined the primary source of the lung cancer was found in the original CT scan.

Three (3) months after this diagnosis, Foster died. Her children claim that if Foster had undergone a CT scan recommended by the radiologist in August of 2012, cancer would have been found and possibly would have given Foster a better opportunity in life. 

In February 2017, plaintiffs filed a complaint to the medical review panel alleging  Ochsner Health System and other personnel breached their standard duty of care. Drs. Olisa and Pechitty (Defendants) relied on La. R.S. 9:5628 and the three-year limitation period on bringing the claim, filing an exception of prescription. 

An exception of prescription is a motion that asks the court to dismiss the lawsuit due to not bringing the lawsuit timely or failing to abide by procedural rules…in other words, your time to bring the lawsuit ran up. The trial court ruled in favor of Defendants and allowed the exception of prescription, dismissing the plaintiff’s claims for any survival damages for the death of Foster.

At the appellate level in front of the Fifth Circuit Court of Appeal in the State of Louisiana, the court reviewed the trial court’s grant of the motion to dismiss under La. R.S. 9:5628 in favor of defendants. The appeals court reasoned the problem with the ruling is that there are remaining claims by the parties. Per Article 1915(B) of the Louisiana Code of Civil Procedure, the trial court’s judgment didn’t address all the claims between the parties. If they are not all addressed, the judgment is not appealable. 

In this case, the judgment on the exception of prescription was in favor of Drs. Olisa and Pechitty did not deal with all the issues and claims between the plaintiff and the other defendants. In addition, Article 1915(B) states that a partial judgment will not be appealable unless the trial judge designates it. Here, the record at the trial court level showed no designation. Therefore, the appellate court held they had no authority to consider this case on appeal and dismissed it. 

However, just because the appellate court could not review the case under their jurisdiction, parties can still file an application for a supervisory writ. This is similar to an appeal where there is a demand from a higher court that orders a lower court to take a certain action. In this case, plaintiffs timely filed a notice of intent to apply for this supervisory writ and therefore were allowed thirty (30) days to file a proper writ that complies with Rule 4, Uniform Rules – Courts of Appeal, to try and appeal the ruling in favor of defendants for allowing the exception of prescription. 

This case in front of the appellate court shows how even though your time may have run out to bring a lawsuit, there can still be ways to navigate the nuances of the legal world. Because of the specifics of the law, it’s always the best idea to hire an attorney who is aware of all procedures and requirements to obtain the best outcome for your case. The bottom line for these situations is don’t wait because no one wants to be barred from recovery.


Written by Berniard Law Firm Writer Brianna Saroli

Other Berniard Law Firm Articles on Medical Malpractice and Prescription Issues: Delay in Filing Results In Dismissal Of Medical Malpractice Lawsuit Louisiana Court Discusses Prescriptive Periods for Medical Malpractice Claims, Discovery Rule; Medical Malpractice Lawsuit Discusses Exceptions of Prescription and Prematurity

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