NO. 17-CA-201

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

IN RE: MEDICAL REVIEW PANEL

PROCEEDINGS OF ETHEL MAE GLOVER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

NO. 764-120, DIVISION "G"

HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

October 25, 2017

HANS J. LILJEBERG

Panel composed of Judges Susan M. Chehardy,

Fredericka Homberg Wicker, and Hans J. Liljeberg

JUDGE

REVERSED AND REMANDED

HJL

SMC

WICKER, J., CONCURS WITH REASONS

FHW

COUNSEL FOR PLAINTIFF/APPELLANT,

BRENDA LINDSEY, SYLVIA DAVIS, JOYCELYN JOSEPH AND SHELIA

GLOVER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF

ETHEL MAE GLOVER

Sidney D. Torres, III

Roberta L. Burns

Beau F. Camel

COUNSEL FOR DEFENDANT/APPELLEE,

OCHSNER CLINIC FOUNDATION, DR. ERICA DIGGS, DR. SHAHRZAD

TALEBI-NEJAD, DR. IFEANYI IWUKCHUKWU AND

DR. JOSHUA GOLDBERG

Shelly S. Howat

William K. Wright, IV

17-CA-201 1

LILJEBERG, J.

In this medical malpractice case, plaintiffs, Brenda Lindsey, Sylvia Davis,

Jocelyn Joseph, and Shelia Glover, individually and on behalf of the Estate of

Ethel Mae Glover, appeal the trial court judgments granting the exceptions of

prescription filed by defendants and dismissing plaintiffs’ claims against them.

For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 9, 2015, Ethel Mae Glover was admitted to Tulane Medical

Center, where she was diagnosed with having suffered a stroke. On March 17,

2015, at the request of Ms. Glover’s family, she was transferred to Ochsner

Foundation Hospital (“Ochsner”) for “ongoing stroke management” and treatment.

While at Ochsner, Dr. Iwuchukwu, who was known to the Glover family as “Dr.

Obie” and/or “Dr. Arden,” was Ms. Glover’s attending physician and oversaw her

treatment.

Plaintiffs contend that Ms. Glover had several issues during her treatment at

Ochsner. According to plaintiffs, although Ms. Glover’s chart indicated that she

was allergic to iodine and iodide-containing products, she underwent a CT scan

with iodine contrast of the abdomen and pelvis and suffered an allergic reaction.

They also contend that there were problems with the proper placement of an NGT

(nasogastric tube), and she also suffered a pseudomonas urinary tract infection

(“UTI”) ultimately causing septic shock. Ms. Glover underwent surgery for

placement of a PEG (percutaneous endoscopic gastronomy) tube on April 1, 2015.

According to plaintiffs, they expressed concerns with their mother’s treatment to

Dr. Iwuchukwu and he assured them that the problems were “under control.”

Ms. Glover passed away on April 12, 2015. Her death certificate listed the

causes of death as follows: a) septic shock, b) UTI, c) acute respiratory failure, and

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d) CVA.1 Due to their concerns about Ms. Glover’s treatment while at Ochsner,

the Glover family arranged for a private autopsy, which was performed on April

14, 2015. The autopsy report, which was provided to the Glover family on or

about June 17, 2015, revealed that the primary cause of death was chemical

peritonitis. The report further indicated that the “cerebral infarct contributed to her

death secondary to the decedent requiring a gastric tube which subsequently

became dislodged and contributed to” the chemical peritonitis.

On behalf of the Glover family, Brenda Lindsey, one of Ms. Glover’s

daughters, filed a pro se request for a medical review panel, alleging malpractice

by Ochsner and “Dr. Obie” or “Dr. Arden.” This request was dated April 8, 2016

and was sent via facsimile to the Louisiana Division of Administration (“DOA”)

on April 11, 2016, which was one day before the year anniversary of Ms. Glover’s

death. On April 15, 2016, the Patient’s Compensation Fund (“PCF”) sent a letter

to Ms. Lindsey acknowledging receipt of the complaint requesting a medical

review panel, advising that Ochsner was a qualified health care provider, indicating

that she would have to provide the complete name of Dr. Obie and/or Dr. Arden

within 45 days of the postmark of the notice, and advising that a filing fee of $100

per qualified defendant must be received by the PCF within 45 days of the

postmark, “in accordance with R.S. 40:1231.8(A)(1)(c).” The letter further

provided that if the PCF did not receive the filing fee within 45 days of the

postmark of the letter, the request for a medical review panel would be rendered

“invalid and without effect.” Because the PCF’s letter was postmarked April 15,

2016, the 45-day period ended on May 31, 2016.

The Glover family subsequently retained counsel, and on May 27, 2016,

they filed via facsimile a “First Supplemental and Amending Complaint and

Request for Medical Review,” identifying “Dr. Obie” as Dr. Ifeanyi Iwuchukwu

1 A “CVA” is commonly referred to as a stroke.

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and naming additional health care providers as defendants, namely Dr. Erica

Diggs, Dr. Joshua Goldberg, and Dr. Shahrzad Talebi-Nejad. A copy of a check

for $500 was included with the facsimile.2 In addition, the original of the First

Supplemental and Amending Complaint and the check for $500 were mailed via

certified mail on May 27, 2016. The Division of Administration received the

check and the original of the “First Supplemental and Amending Complaint” on

June 2, 2016.

Also on June 2, 2016, the PCF sent Ms. Lindsey a letter stating that her

April of 2016 request for a medical review panel was “invalid and without effect,”

because the PCF did not receive the filing fees within the time allowed by law and

plaintiffs failed to timely identify the complete name of Dr. Obie and/or Dr. Arden.

Thereafter, on June 8, the PCF sent a letter to counsel for the Glovers,

acknowledging that it received the May 27, 2016 request for a medical review

panel and $500 in filing fees on June 3, 2016, confirming that all five defendants

were qualified health care providers, and assigning a new file number to the

amended complaint.

On August 24, 2016, all of the defendants, except Dr. Goldberg, filed a

peremptory exception of prescription in the 24th Judicial District Court, requesting

that the medical review panel proceedings based on the May 27, 2016 amended

complaint and all medical malpractice claims against these defendants be

dismissed as untimely. They argued that the initial request for a medical review

panel filed on April 11, 2016, was rendered invalid for failure to timely pay the

required filing fees and thus, it did not suspend the time within which plaintiffs had

to file their complaint. They assert that without suspension of the time limitations,

plaintiffs’ “supplemental” request for a medical review panel filed on March 27,

2 The check was in the amount of $500 to include the $100 filing fee due for Ochsner and a $100 filing fee for each

of the other four health care providers named as defendants, though they had not yet been confirmed by the PCF as

qualified health care providers.

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2016 was untimely. After a hearing, the trial court rendered a judgment on

November 22, 2016, granting defendants’ exception of prescription.3

On December 13, 2016, Dr. Goldberg filed an exception of prescription,

alleging that the claims against him were untimely for the same reasons alleged by

the other defendants. After a hearing, the trial court rendered a judgment on

January 9, 2017, granting the exception of prescription and dismissing the claims

against Dr. Goldberg with prejudice. Plaintiffs now appeal the trial court

judgments granting the exceptions of prescription and dismissing the claims

against all defendants.

LAW AND DISCUSSION

On appeal, plaintiffs argue that the trial court erred by granting defendants’

exceptions of prescription, and they set forth several arguments in support of their

position. First, plaintiffs contend that their original request for a medical review

panel filed on April 11, 2016 should not have been rendered invalid and without

effect, because the filing fee was timely paid by sending a check via certified mail

within 45 days of the postmark of the PCF’s April 15, 2016 letter. Thus, since the

April 11, 2016 request was valid, it suspended the running of prescription against

all joint and solidary obligors, and the supplemental request for a medical review

panel filed via facsimile and certified mail on May 27, 2016 was timely.

Defendants respond that pursuant to the PCF’s April 15, 2016 letter and La.

R.S. 40:1231.8(A)(1)(c), the filing fee of $100 per qualified defendant must be

received by the PCF within 45 days of the postmark of the PCF notice. Defendants

assert that plaintiffs’ payment of the filing fees was untimely, where the check for

3 On May 2, 2017, this Court noted that the November 22, 2016 judgment did not contain the appropriate and

necessary decretal language required to invoke this Court’s appellate jurisdiction. Accordingly, this Court ordered

the trial court to amend its judgment. On May 2, 2017, the trial court rendered an amended judgment, granting the

exception of prescription and dismissing plaintiffs’ claims against Ochsner, Dr. Diggs, Dr. Talebi-Nejad, and Dr.

Iwuchukwu. On May 18, 2017, after finding that the name of plaintiff was incorrect in the amended judgment, this

Court ordered the trial court to amend the May 2, 2017 judgment to properly reflect the name of the parties against

whom the judgment was rendered. The trial court issued an amended judgment on May 23, 2017.

17-CA-201 5

the fees was mailed within 45 days of date of the PCF letter, but not received until

after this 45-day period.

At the time plaintiffs’ requests for a medical review panel were filed, La.

R.S. 40:1231.8(A)(1)(c) provided: 4

A claimant shall have forty-five days from the mailing date

of the confirmation of receipt of the request for review…

to pay to the board a filing fee in the amount of one

hundred dollars per named defendant qualified under this

Part. (Emphasis added.)

La. R.S. 40:1231.8(e) provided that failure to timely pay the required filing

fee of $100 per qualified defendants “shall render the request for review of a

malpractice claim invalid and without effect,” and the invalid request shall not

suspend the time within which the malpractice suit must be instituted.

La. R.S. 40:1231.8(A)(1)(c) did not specify whether a payment mailed by

certified mail within the time limitations was sufficient to comply with the

requirement “to pay,” or whether the payment had to be received within the 45-day

period. Interpretation of the term “to pay” is crucial to a determination of whether

the filing fee was timely paid.

The interpretation of any statutory provision starts with the language of the

statute itself. Dejoie v. Medley, 08-2223 (La. 5/5/09), 9 So.3d 826, 829; Faget v.

Faget, 10-188 (La. 11/30/10), 53 So.3d 414, 420. When the wording of a revised

statute is clear and unambiguous and its application does not lead to absurd

consequences, its language must be given effect, and its provisions must be

construed so as to give effect to the purpose indicated by a fair interpretation of the

language used. La. C.C. art. 9; La. R.S. 1:4; Cleco Evangeline, L.L.C. v. Louisiana

Tax Commission, 01-2162 (La. 4/3/02), 813 So.2d 351, 354. Words and phrases

4 Subsequently, La. R.S. 40:1231.8(A)(1)(c) was amended by Acts 2016, No. 275, §1, effective August 1, 2016, to

provide that a claimant shall have 45 days from the date of receipt by the claimant of the confirmation of receipt of

the request for review to pay the board filing fee of one hundred dollars per named defendant.

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shall be construed according to the common and approved usage of the language.

La. R.S. 1:3.

Laws of limitation, which are in derogation of the general rights of tort

victims, are to be strictly construed if there are any ambiguities in the law. David

v. Our Lady of the Lake Hosp. Inc., 02-2675 (La. 7/2/03), 849 So.2d 38, 47.

However, the rule of strict construction applies only when the plain language of the

statute and the rules of interpretation fail to definitively illuminate the legislature’s

intent. David, 849 So.2d at 47. Statutes providing for prescriptive periods are to

be strictly construed in favor of maintaining a cause of action. Id. Absent clear,

contrary legislative intent, prescriptive statutes, which can be given more than one

reasonable interpretation, should be construed against the party claiming

prescription. Williams v. Jackson Parish Hosp., 00-3170 (La. 10/16/01), 798

So.2d 921, 930.

Defendants, in support of their exceptions of prescription, rely on this

Court’s opinion in In re Benjamin, 14-192 (La. App. 5 Cir. 11/25/94), 165 So.3d

161. In that case, Mr. Benjamin filed a complaint requesting a medical review

panel, and the PCF sent him a letter confirming receipt of his request and

indicating that filing fees of $100 per named defendant were due no later than 45

days from the date of that letter. Mr. Benjamin mailed payment of the filing fees

by certified letter prior to the expiration of the 45-day period, but the letter was

returned because it did not have sufficient postage. Benjamin, 165 So.3d at 163.

Mr. Benjamin resent the fees to the PCF, but the check was returned for

insufficient funds. Mr. Benjamin sent the letter with the filing fees a third time,

and it was received by the PCF well after the 45-day period. Id. The defendant

filed an exception of prescription asserting that the filing fees were not timely paid,

and the trial court granted the exception. On appeal, this Court affirmed, finding

that the filing fees were not timely paid and that the request for a medical review

17-CA-201 7

panel was therefore invalid and without effect.5 This Court stated that in order to

be paid timely, the filing fees must be received within the 45-day period.

Benjamin, 165 So.3d at 164.

Plaintiffs, in support of their contention that the filing fees were timely paid,

rely on the Second Circuit’s decision in Davis v. State Health Scis. Ctr.-Shreveport

(In re Medical Review Panel of Davis), 41,273 (La. App. 2 Cir. 8/25/06), 939

So.2d 539, writ denied, 06-2343 (La. 12/8/06), 943 So.2d 1092. In Davis, Mrs.

Davis, the decedent’s wife, filed a timely request for a medical review panel. She

received a letter from the PCF indicating that she was required to pay the filing

fees within 45 days or her complaint would be rendered invalid and without effect.

Mrs. Davis mailed the filing fees via United State Express Mail6 before expiration

of the 45-day time period. However, it was received by the PCF after the 45-day

period, and the PCF notified her that her claim was invalid and without effect.

Davis, 939 So.2d at 541. Defendant filed an exception of prescription which was

granted by the trial court. On appeal, the Second Circuit reversed, finding that the

“mailbox rule” should apply. Id. at 543. The Court reasoned that although La. R.S.

40:1299 does not specifically state that the date of mailing is deemed to be the date

of payment, the filing of the complaint and the payment of the filing fees are

“inexorably joined” and the statute provides that the mailbox rule applies when

filing a complaint. The Court stated that it “is logical that the same mailbox rule

would apply to the 45-day period for paying the filing fees.” Davis, 939 So.2d at

543.

The facts of the present case are distinguishable from Benjamin because,

unlike Mr. Benjamin who failed to pay sufficient postage when the fees were

5 At the pertinent time in Benjamin, the statutory provision at issue was set forth in La. R.S. 40:1299.47(A)(1)(c).

La. R.S. 40:1299.47 was redesignated as La. R.S. 40:1231.8 by H.C.R. No. 84 of the 2015 Regular Session. At the

pertinent time in the present case, the provision at issue was contained in La. R.S. 40:1231.8(A)(1)(c). 6 The Court noted that while the mailbox rule requires that the complaint be sent by certified or registered mail, in

order to confirm the date of mailing and receipt, express mail also provides signed statements of the date mailed and

the fact of next day delivery. Davis, 939 So.2d at 543.

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mailed within the 45-day period, the Glovers mailed the filing fees to the PCF with

valid postage via certified mail. Mr. Benjamin’s second attempt to pay the filing

fees was unsuccessful, where the check was returned for insufficient funds. This

case is similar and more analogous to Davis, where the plaintiffs mailed the filing

fees with proper postage during the 45-day period, but the fees were received after

the 45-day period. Although we acknowledge that this Court stated in dicta in

Benjamin that payment occurs when the filing fees are received by the PCF, that

statement was not germane to the decision in that case, where the payment was not

properly mailed prior to the expiration of the 45-day period due to insufficient

postage. We find that the mailbox rule applies under the circumstances herein.

At the time of plaintiffs’ request for a medical review panel, La. R.S.

40:1231.8(A)(1)(c) did not specify whether the term “to pay” required receipt of

the payment or simply mailing the payment within the 45-day time period in order

to be timely.7 Because there are two possible interpretations, we must adopt the

one which favors maintaining the action as opposed to barring it.

Laws on the same subject matter must be interpreted in reference to each

other. La. C.C. art. 13; Tillman ex rel. Tillman v. State, 15-1114 (La. 3/15/16), 187

So.3d 445, 451. We agree with the Second Circuit’s reasoning in Davis that the

mailbox rule should apply for the payment of fees, just as it applies to the filing of

a medical malpractice complaint. Thus, applying the mailbox rule herein, we find

that plaintiffs timely paid the filing fees within 45 days of the April 11, 2016

request for a medical review panel.

Having found that the filing fees were paid within 45 days of the PCF’s

April 15, 2016 notice, we now must address whether plaintiffs’ April 11, 2016

7 Although the PCF’s April 15, 2016 letter indicated that the PCF had to receive the filing fees within 45 days of the

postmark of the letter, we note that administrative agencies, such as the PCF, cannot adopt rules that shorten a

prescriptive period. See Correro v. Ferrer, 16-861 (La. 10/28/16), 216 So.3d 794.

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request for a medical review panel was timely filed to preserve their wrongful

death and survival actions against defendants.

Although both actions arise from a common tort, wrongful death and

survival actions are separate and distinct. Taylor v. Giddens, 92-3054 (La.

5/24/93), 618 So.2d 834, 840. La. C.C. art. 3492 governs the prescriptive period

for wrongful death actions. Id.at 836. This article states that prescription begins

on the date of injury or damage. Thus, a cause of action for wrongful death does

not rise until the victim dies. Taylor, 618 So.2d at 841.

In the present case, Ms. Glover died on April 12, 2015. The request for a

medical review panel was filed within one year, on April 11, 2016. Thus we find

that plaintiffs’ complaint was timely filed within the prescriptive period for filing a

wrongful death action. Accordingly, the trial court erred by granting defendants’

exceptions of prescription as to plaintiffs’ wrongful death claims, and we reverse

this ruling.

A survival action comes into existence simultaneously with the existence of

the tort and is transmitted to the beneficiaries upon the victim’s death. Taylor, 618

So.2d at 840. La. R.S. 9:5628 sets forth the applicable prescriptive period for

survival actions as follows:

A. No action for damages for injury or death against any

physician…, whether based upon tort, or breach of

contract, or otherwise, arising out of patient care shall be

brought unless filed within one year from the date of the

alleged act, omission, or neglect, or within one year from

the date of discovery of the alleged act, omission, or

neglect; however, even as to claims filed within one year

from the date of such discovery, in all events such claims

shall be filed at the latest within a period of three years

from the date of the alleged act, omission, or neglect.

La. R.S. 9:5628 has been referred to as a “tripartite prescriptive provision,”

meaning that the statute has three parts. In re: Medical Review Panel for Claim of

Moses, 00-2643 (La. 5/25/01), 788 So.2d 1173. First, a one-year prescriptive

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period, which follows the same time frame as a traditional tort, is the general rule.

Id. at 1178. Second, when an injury is not immediate and apparent, there is a

discovery exception to the general rule, known as contra non valentum, providing

that such actions prescribe one year from the date of discovery of the alleged act,

omission, or neglect. Id. Third, a peremptive period of three years has been placed

on all claims, regardless of discovery. Moses, 788 So.2d at 1179.

Contra non valentum is a Louisiana jurisprudential doctrine under which

prescription may be suspended. Carter v. Haygood, 04-646 (La. 1/19/05), 892

So.2d 1261, 1268. There are four instances where contra non valentum is applied

to prevent the running of prescription: 1) where there was some legal cause which

prevented the courts or their officers from taking cognizance of or acting on the

plaintiff’s action; 2) where there is some condition coupled with the contract or

connected with the proceedings which prevented the creditor from suing or acting;

3) where the debtor himself has done some act effectually to prevent the creditor

from availing himself of his cause of action; and 4) where the cause of action is not

known or reasonably knowable by the plaintiff, even though this ignorance is not

induced by the defendant. Id. These categories thus allow the courts to weigh the

equitable nature of the circumstances in each individual case to determine whether

prescription will be tolled. Id.

In certain circumstances, a doctor’s continuing professional relationship with

his patient may give rise to the suspension or interruption of prescription. Carter,

892 So.2d at 1269; Nichols v. Patwardhan, 48,170 (La. App. 2 Cir. 6/26/13), 120

So.3d 322, 324. This interruption or suspension of prescription by the continued

existence of a professional relationship is based on the premise that the

professional relationship is likely to hinder the patient’s inclination to sue. Carter,

892 So.2d at 1269.

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The tolling of prescription that possibly arises out of the continuation of

such a special relationship is based on the third category of contra non valentum,

where the defendant himself has done some act effectively preventing the plaintiff

from availing himself of his cause of action. Id.; Moses, 788 So.2d at 1180-81. It

is the continuation of the special relationship that offers the possibility of

correction of the injury and thus, may postpone the running of prescription.

Carter, 892 So.2d at 1269. Therefore, as long as the patient remains in the

physician’s care, she could reasonably expect a correction of the tortious treatment.

Id. This theory, as a form of contra non valentum, is known as the “continuing

treatment” rule. Carter, 892 So.2d at 1270.

The continuing treatment rule requires a plaintiff to establish the existence of

a continuing relationship with the physician, which is more than perfunctory,

during which the physician engaged in conduct which served to prevent the patient

from availing herself of her cause of action, such as attempting to rectify an alleged

act of malpractice. Carter, 892 So.2d at 1271. Prescription runs against a plaintiff

who has knowledge of facts that a condition may be the result of improper

treatment only if there is no effort made by the physician to mislead or cover up

information available to the plaintiff through inquiry or professional medical

advice during the continuing treatment. Id. at 1273.

In the present case, applying the continuing treatment rule, the earliest date

prescription could have started to run against the Glovers’ survival action was the

date of Ms. Glover’s death. After being transferred to Ochsner on March 17, 2015,

Ms. Glover allegedly had several problems. According to the Glover family, they

had a meeting with Dr. Iwuchukwu near the end of March 2015 to discuss several

concerns they had with Ms. Glover’s treatment. According to plaintiffs, Dr.

Iwuchukwu explained away their concerns and reassured them that everything was

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under control.8 After the March 2015 meeting, on April 1, 2015, Ms. Glover had

surgery to place a PEG tube, which was used to supply nourishment. It is the PEG

tube that plaintiffs contend was improperly placed and was lying within the

peritoneal cavity, rather than stomach, resulting in the chemical peritonitis that

caused Ms. Glover’s death.

Because we find that the earliest date prescription could have started to run

was the date of Ms. Glover’s death, April 12, 2015,9 plaintiffs’ April 11, 2016

complaint requesting a medical review panel was timely filed for purposes of

preserving their survival action. Thus, the trial court erred by granting defendants’

exception of prescription as to plaintiffs’ survival action.

Based on our findings that the exceptions of prescription should not have

been granted and must be reversed, we pretermit discussion of the remaining

arguments set forth in plaintiffs’ appeal.

DECREE

For the foregoing reasons, we reverse the trial court judgment granting the

exceptions of prescription filed by defendants, and we remand for further

proceedings.

REVERSED AND REMANDED

8 The Glover family contends that in response to their concerns about the original feeding tube being improperly

placed, Dr. Iwuchukwu assured them that an x-ray was taken and “everything was in place.” Also, according to

plaintiffs, in response to their concerns that blood a coming out of Ms. Glover’s mouth during feeding after

problems with the placement of the feeding tube, Dr. Iwuchukwu informed them that the bleeding in her stomach

was caused by the stroke, not the tube. 9 Plaintiffs also maintain that the fourth category of contra non valentum applies, because a reasonable person would

not have been put on notice that malpractice had occurred until the autopsy results were received on June 17, 2016.

However, we need not make a determination as to the applicability of this fourth category of contra non valentum

because our application of the continuing treatment rule indicates that the date of death is the earliest date

prescription could have begun, thereby preserving plaintiffs’ survival action claims.

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IN RE: MEDICAL REVIEW PANEL

PROCEEDINGS OF ETHEL MAE

GLOVER

NO. 17-CA-201

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

WICKER, J., CONCURS WITH REASONS

I agree with both the writer’s well-written analysis and the outcome in this

case but respectfully concur to express my opinion that, pursuant to the La. R.S.

9:5628 discovery rule, the date on which prescription began to run in this case is

June 17, 2015, the date on which Ms. Glover’s family received the autopsy

report. As the writer succinctly explained, Ms. Glover, a stroke victim, was

transported at the request of her family to Ochsner Foundation Hospital on

March 17, 2015. Thereafter, she was treated until her death by Dr. Iwuchukwu,

known to the Glover family as “Dr. Obie and/or “Dr. Arden,” and other Ochsner

physicians. Throughout Ms. Glover’s Ochsner hospitalization, she suffered

multiple setbacks, including a reaction to CT scan with contrast, issues resulting

from a clumsy nasogastric tube placement, and complications from a urinary

tract infection. While Ms. Glover remained hospitalized, her family met with

Dr. Obie to discuss their treatment-related concerns. Dr. Obie repeatedly

reassured the family that everything was alright but that their mother had

suffered a significant stroke. On April 1, 2015, Ms. Glover underwent surgery

for placement of a PEG (percutaneous endoscopic gastronomy) tube. Her

condition continued to deteriorate thereafter and she died on April 12, 2015.

Soon after her death, Ms. Glover’s family received her death certificate

which listed the causes of her death as: a.) septic shock; b.) UTI (urinary tract

infection); c.) acute respiratory failure; d.) CAV (stroke). On June 17, 2015,

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approximately two months after Ms. Glover’s death, the Glover family received

the autopsy report they had privately requested and learned that the first cause of

Ms. Glover’s ddeath was:

1.0 Chemical peritonitis

1.1 Post percutaneous endoscopic gastrostomy (PEG) tub placement

with distal end within peritoneal cavity

1.2 Red, dull intestinal serosal surfaces with exudate

1.3 Peritoneal effusion, 3500 ml milky lipid-rich fluid

In my opinion, since, based upon the death certificate, the Ochsner

physicians themselves did not know that improper placement or dislocation of

the PEG tube into her peritoneal cavity contributed to Ms. Glover’s death, it was

impossible for the Glover family members to discover that the improper

placement of the PEG tube contributed to Ms. Glover’s death before they

received the June 17, 2015 autopsy report. Thus, in my opinion, prescription did

not begin to run on either the survival or wrongful death claim until that date.

The Louisiana Supreme Court, in two opinions authored by Justice

Jeanette Knoll, has opined that La. R.S. 9:5628, the Medical Malpractice

prescriptive statute, sets forth a tripartite prescription provision. In Campo v.

Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, and Carter v. Haygood, 04-0646

(La. 1/19/05), 892 So.2d 1261, the Louisiana Supreme Court explained that La.

R.S. 9:5628 first sets forth the one year prescriptive period which parallels the

general tort prescriptive period set forth in La. Civ. Code Art. 3492. Second, in

cases involving damages that are not immediately apparent, Section 5628

codifies the contra non valentum discovery exception originally created in

Louisiana Jurisprudence. See Frank L. Maraist and Thomas C. Galligan,

Louisiana Tort Law § 10-4(b) 222 (1996). Finally, the statute sets forth a

preemptive date three years from the date of the alleged act, omission or neglect.

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Campo v. Correa, 01-2707 (La. 06/21/02, 828 So. 2d 502; Carter v. Haygood,

2004-0646 (La. 01/19/05), 892 So. 2d 126.

The discovery extension of the general tort prescriptive period addresses

itself to prongs three and four of the jurisprudential contra non valentem

doctrine: (3) where the debtor himself has done some act effectually to prevent

the creditor from availing himself of his cause of action; and (4) where the cause

of action is not known or reasonably knowable by the plaintiff, even though this

ignorance is not induced by the defendant. Campo, supra. and Carter, supra.

In 2002, in Campo v Correa, supra, the Court held that in cases involving

damages that are not immediately apparent or immediately knowable, the action

prescribes one year from the date of discovery of the alleged act, omission or

neglect if the patient was not unreasonable in failing to discover that the

treatment was the alleged cause of the condition. The discovery rule applies in

this instance even if the defendant health care provider did nothing to induce the

patient’s ignorance of the alleged act, failure to act, or omission. See also In re

Med. Review Panel Claim of Hume, 14-0844 c/w 14-0845 (La 4 Cir. 4/1/15), 165

So.3d 233; Fanguy v. Lexington Ins. Co., 12-136 c/w 11-1102 (La App. 5 Cir.

11/13/12), 105 So.3d 848, affirmed in part, reversed in part on other grounds,

13-0114 (La. 4/1/13), 110 So.3d 127; Ferrare v. Starmed Staffing, LP, 10-0589

(La. App. 4 Cir. 10/6/10), 50 So.3d 861. Thereafter, in 2005, in Carter v.

Haygood, supra, the Louisiana Supreme Court opined that the discovery prong

of Section 9:5628 also applies in instances in which the patient alleges that

defendant health care providers provided continuing treatment coupled with the

defendant(s) alleged assurances to the patient that the health care provider(s)

could remedy the problem, if the patient was not unreasonable in relying upon

the treating health care provider’s assurances.

17-CA-201 16

Importantly, the Court opined that a petition should not be found

prescribed on its face if brought within one year of the date of discovery and the

plaintiff alleges facts in the petition with particularity which show that the

patient was unaware of the malpractice prior to the alleged date of discovery,

and the delay in filing was not due to willful, negligent or unreasonable action of

the patient. The Court further held that a petition is not prescribed on its face if

filed within one year of the conclusion of treatment provided by the defendant

health care provider(s) and the defendant(s) continued to assure the patient that

the problem could be remedied and the patient was not unreasonable in relying

upon the treating health care provider’s assurances. Campo, 828 So.2d at 509.

Therefore, if the plaintiff has made a prima facie showing that the action was

filed within one year of the date of discovery and within three years from the

date of the alleged act, omission or neglect and the patient was not unreasonable

in his or her failure to discover the alleged malpractice, the burden of proof at

the trial of the peremptory exception rests upon the defendant health care

provider and does not shift to the plaintiff, as it would if the action was

prescribed on its face. Id.10

In this case, the majority found that the Glover family made a prima facie

case that the defendant health care providers continued to render treatment and

assure Ms. Glover and family members that their concerns were under control and,

further, that the Glover family was reasonable in this reliance, thus making April

12, 2015, the date Ms. Glover died, the first date upon which prescription could

have begun to run. I am of the opinion, however, that the Glover family was

reasonable in failing to discover that Ms. Glover’s death was related to

10There seems to be confusion in the courts of appeal following the Campo and Correa decisions in that the courts continue to analyze cases by subjecting the plaintiff to the burden of proof even in the face of a prima facie showing that the discovery prong of the prescriptive statute applies. See for instance Lebouef v. O’Donnell, 12-514 (La. App. 3 Cir. 12/12/12) 106 So.3d 1160.

17-CA-201 17

complications resulting from an improper placement or dislocation of the PEG tube

into the peritoneal cavity until receipt of the autopsy report. Therefore, it is my

opinion that prescription did not begin to run in this case until June 17, 2015, the

date on which the Glover family received the private autopsy report, rendering the

majority’s discussion of the assignment of error concerning the Division of

Administration’s receipt of the “First Supplemental and Amending Complaint” and

the accompanying June 2, 2016 check payment moot.

SUSAN M. CHEHARDY

CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON

ROBERT M. MURPHY

STEPHEN J. WINDHORST

HANS J. LILJEBERG

JUDGES

CHERYL Q. LANDRIEU

CLERK OF COURT

MARY E. LEGNON

CHIEF DEPUTY CLERK

SUSAN BUCHHOLZ

FIRST DEPUTY CLERK

MELISSA C. LEDET

DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

FIFTH CIRCUIT

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POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

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17-CA-201

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN

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OCTOBER 25, 2017 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES

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E-NOTIFIED24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)

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