Opinion
2022 CW 0935
11-07-2022
RICHARD SHANLEY, TUTOR FOR KAITLYN SHANLEY'S MINOR CHILD, A.K.M. v. DEBORAH N. BRYANT, DR. THOMAS TRAHAN, COURTNEY POURCIAU, DR. DAN GODBEE, AND LANE REGIONAL MEDICAL CENTER
In Re: Lane Regional Medical Center, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 708111.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
WRIT GRANTED. Pursuant to La. R.S. 9:5628, no action for damages for injury or death against any physician, nurse, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year of 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. Moreover, La. Code Civ. P. art. 2315.2(B) provides that a wrongful death action prescribes one year from the death of the deceased. In the instant medical malpractice case, the deceased, Kaitlyn Brooke Shanley, died on January 5, 2020, and a request for a Medical Review Panel was not filed until January 27, 2021. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment, and there is no effort by the health care provider to mislead or cover up information which is available to plaintiff through inquiry or professional medical or legal advice, then the cause of action is reasonably knowable to plaintiff. Bailey v. Loewe, 2019-1201 (La.App. 1st Cir. 7/23/20), 309 So.3d 355, 360-61. We find that plaintiff had constructive knowledge of a missed diagnosis insofar as he had specifically inquired as to the possibility that his daughter had meningitis on January 1, 2020 and was later advised on January 2, 2020 that she had meningitis. Moreover, we reject plaintiff's argument that prescription could not run against A.K.M. See Traylor v. Reliance Ins. Co., 98-1379 (La.App. 4th Cir. 7/1/98), 715 So.2d 1253, 1257-58, writ denied, 98-2048 (La. 11/6/98), 728 So.2d 392. Finally, we find that prescription was not suspended because of the COVID-19 orders or i the Louisiana Supreme Court's Hurricane Laura order. See De La Rosa v. King, No. 21-164, 2021 WL 4845787, *4 (E.D. La. 10/18/21), and Simon v. Kansas City Southern Railway Co., No. 3:21-03800, 2022 WL 2421121, *4 (W.D. La. 3/10/22). We therefore reverse the trial court's judgment denying the exception of prescription filed by defendant, Lane Regional Medical Center, and grant its exception of prescription and dismiss the plaintiff's claims against it.
JEW
AHP
WIL