If you believe that you may have a personal injury claim against someone who caused your injuries, the first thing that you need to consider is the prescriptive period or prescription that may apply to your claim. Louisiana law applies time limits that require litigants to assert their claims within a specific period of time or waive their right to recovery forever. As seasoned Louisiana medical malpractice lawyers, we have guided numerous victims in determining the prescriptive period that applies to their claim, and we are ready to assist you. A recent appellate opinion illustrates the importance of keeping prescription in mind.
The plaintiff had been seen by a physician for gynecology and obstetrics treatment since 2005. At some point, she was diagnosed with endometriosis after a biopsy came back positive. The plaintiff was then sent to an infertility specialist to treat a number of conditions, including pelvic pain, desired contraception, endometriosis, and infrequent menstruation. The plaintiff had two cesarean births and then elected to have a bilateral tubal sterilization to prevent further pregnancies. After the procedure, the plaintiff continued to complain of pelvic pain.
The plaintiff presented to the emergency room in 2008, complaining of severe pelvic pain. The plaintiff alleged that she signed a consent form agreeing to a surgical procedure while she was in severe pain and while under the influence of pain medication. The following day, the obstetrics and gynecology physician performed a hysterectomy. Complications arose after the surgery, including bladder issues. She continued treatment with the surgeon and also saw a number of other physicians in an attempt to resolve her chronic pelvic pain. One of these physicians informed the plaintiff that it was his opinion that it was negligent for the surgeon to suggest and then perform a hysterectomy on a 24-year-old patient.
Two years after the hysterectomy, the plaintiff filed a complaint against the surgeon. The surgeon sought review from a civil court, but the court declined to review the surgeon’s challenge while the claim was pending before the medical review panel (MRP). Over the next several years, the plaintiff failed to file materials that the MRP requested and missed six separate deadlines. Ultimately, the MRP concluded that the surgeon obtained proper informed consent from the plaintiff and that his care and performance of the hysterectomy were not negligent. The plaintiff filed suit and was met with an exception of prescription. The trial court sustained the exception and dismissed the case as having been filed untimely because a reasonable person with the patient’s education (she was a nurse) and intelligence would have been put on notice under the circumstances long before the subsequent doctor told her she was the victim of medical negligence.
The court of appeal began by reviewing Louisiana’s prescriptive period for medical malpractice claims, which must be filed within one year from the date the allegedly negligent conduct occurred, or within one year from the date that the plaintiff knew or reasonably should have discovered that the alleged negligence occurred. In no case, however, shall an action be permitted to proceed that is filed more than three years from the date of the allegedly negligent conduct.
In asserting her claim, the plaintiff relied on the discovery rule, asserting that she did not learn about the negligent treatment until another physician informed her that it was his opinion that it was negligent to perform a hysterectomy on a 24-year-old. The court of appeal agreed that the plaintiff failed to bring her claim within the appropriate time frame. It rejected the plaintiff’s reliance on the continuous treatment doctrine, finding that no special relationship between the surgeon and the plaintiff persisted to warrant tolling of the prescriptive period. The appellate court also rejected the plaintiff’s additional assignments of error, finding that she should have discovered the potential cause of action at an earlier date. This was due in part to the plaintiff’s status as a nurse, which the court described as providing the plaintiff with a sophisticated level of medical knowledge.
If you have been injured as a result of a medical malpractice incident, or in any other personal injury action, you may be entitled to compensation. At Dué Guidry Piedrahita Andrews, our seasoned trial lawyers have counseled victims throughout Louisiana on a wide variety of claims, and we are standing by to assist you. To schedule your free consultation, call us now at (225) 929-7481 or contact us online.
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