Louisiana Personal Injury Lawyer Blog
Time is of the essence when filing a claim; a person can essentially lose the case before it even begins if the claim is not filed “in time”. But the question is when is a claim “on time?” In the recent case holding of Casborn v. Curran and Northshore Regional Medical Center, the court explained that under Louisiana Revised Statutes 9:5628, “no action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act.” What has become an issue for many to understand is from what point does the court consider a person to have “discovered” the injury or wrongful act? Exploring the cases’ analysis sheds some light on the issue and hopefully provides an answer to this dilemma.
Prescription is a legal term that is a powerful tool that many litigants utilize to dismiss a case. Specifically, prescription is defined as “the loss or forfeiture of a right, by the proprietor’s neglecting to exercise or prosecute it during the whole period, which the law hath declared to be sufficient to infer the loss of it.” The prescription clock starts ticking as soon as the person who feels they have been damaged discovers the alleged injury; if they wait too long, the time limit is up and the clock stops ticking, resulting in the loss of their claim.
In the case of Cosborn, prescription ultimately ended the case before it even began, causing the plaintiffs to be completely out of luck in obtaining any relief. Dates are extremely important when a court explores the issue of prescription, which is why the dates of the plaintiff’s alleged injury, eventual discovery, and final act of filing is vital in the analysis. The plaintiff, Mrs. Casborn, went to the Northshore Regional Medical Center on May 5, 2007, suffering from severe tongue swelling and difficulty breathing. The examining staff physician, Dr. Curran, administered the medication Benadryl —however, Mrs. Casborn continued to suffer and the symptoms actually began to grow worse. Eventually, she had to be taken into surgery and had a mechanical ventilator inserted, where it remained until May 18, 2007. In total, Mrs. Cosborn stayed in the hospital for almost an entire month, suffering from other complications including pneumonia, anemia, and acute renal problems.
On May 23, 2008, Mrs. Cosborn filed a medical malpractice complaint alleging that Dr. Curran’s failure to administer the proper medication in the face of an acute allergic reaction was a breach in the medical standard of care. However, this is where the plaintiff’s claim has a hiccup: Cosborn filed her complaint over one year after the date of the alleged negligence. The plaintiffs argued that the time did not start ticking until the ventilator was removed and she had regained her ability to speak, and that she did not discover the malpractice until a frame of between May 24, 2007 and June 1, 2007 when she was able to ask questions. The defendants immediately filed an exception of prescription claiming that the clock had stopped ticking and her time was up, alleging she had lost her right to complain since she waited for over one year past the allowed prescriptive time period.
The court held that Mrs. Casborn failed to specify certain facts that could have allowed her case to move forward. Thus, she had lost her ability to file a complaint against Dr. Curran and Northshore Regional Medical Center. Mrs. Cosborn never stated why she was unaware of the malpractice prior to the date of the alleged discovery and any evidence to emerge did not support the argument that she inquired into the issue as soon as she was able. What the court did focus on was the fact that Mrs. Cosborn remained on a ventilator until May 18, 2007 but she did not file her complaint until May 23, 2008. Therefore, her argument that she inquired into the situation as soon as she could speak does not explain or justify why she took over one year to file a claim.
Thus, prescription can be a sharp sword that can do away with a claim before it is even heard. While many individuals may be hesitant to bring a suit, the lesson of the day is if you feel that you have been injured, damaged, hurt, and seek legal guidance in order to ascertain if you have a claim, thus evading prescription. If you have questions or need legal representation feel free to contact our firm any time for a free consultation.