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Date: 01-27-2020
Case Style:
EILEEN GRANIER AND BRETT GRANIER Vs. LEXINGTON INSURANCE COMPANY, HEALTH CARE INDEMNITY, INC., VERNON J. CARRIERE, M.D. AND STEVEN D. JONES, M.D.
Case Number: 2019-CA-0657
Judge: Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins
Court: COURT OF APPEAL
FOURTH CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney:
Defendant's Attorney:
Description:
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On September 28, 2010, plaintiff, Eileen Granier, and her husband, Brett
Granier, filed a claim with the Division of Administration seeking a medical
review panel to investigate her treatment with defendant, Dr. Vernon Carriere. She
asserted that, on September 29, 2009, Dr. Carriere “performed a laparoscopy which
was converted to a laparotomy, with left salpingo-oophorectomy” and that during
the procedure, “the left sigmoid colon was denuded and Dr. Carriere attempted a
repair.”
On October 3, 2009, Ms. Granier was readmitted to East Jefferson General
Hospital for an emergency “laproscopic [sic] exploration, colostomy, and
abdominal washout.” She then suffered other conditions, including ARDS, was
placed on a ventilator, and remained in the ICU for eight days, during which time
“a percutaneous drain was placed.” Ms. Granier was transferred to St. Theresa’s
2
Long Term Acute Care Center on October 26, 2009, where she remained until
November 29, 2009. Since that time, Ms. Granier has suffered complications,
requiring additional treatment.
In their medical review panel claim, plaintiffs alleged that Dr. Carriere
breached the standard of care when he “failed to consult with a general surgeon or
colo-rectal [sic] surgeon intraoperatively, to evaluate and repair the injury to [her]
bowel.” They further maintained that he “failed to give the appropriate post
operative instructions or provide proper post-operative management to Ms.
Granier” and that his failures “nearly resulted in the death of Ms. Granier, and have
caused long term and irreversible complications.”
On December 20, 2011, more than a year after invoking the medical review
panel, and more than two years after Ms. Granier was treated by Dr. Steven Jones,
plaintiffs amended their original request for a medical review panel to name Dr.
Steven Jones as a defendant. In their supplemental claim, plaintiffs alleged that
Dr. Jones examined Ms. Granier on October 2, 2009, “diagnosed a post-operative
illus [sic] and recommended GI rest.” Plaintiffs alleged that Dr. Jones had the
benefit of prior multiple diagnostic tests (chest and abdominal x-rays and an
abdominal CT scan) “which were highly suggestive of a bowel perforation.”
Likewise, Ms. Granier exhibited symptoms of a bowel perforation. Plaintiffs
claimed that “Dr. Jones failed to diagnose a perforated bowel until October 3,
2009,” resulting in Ms. Granier’s developing “acute respiratory distress syndrome
and a worsening clinical picture.” Because of Dr. Jones’ alleged delay in
diagnosing her and subsequent surgery, plaintiffs alleged, Ms. Granier “suffered a
decreased chance of a better outcome.”
3
The medical review panel rendered its opinion on April 4, 2014, finding that
“[t]he evidence does not support the conclusion that . . . [Drs. Carriere and Jones]
failed to meet the applicable standard of care as charged in the complaint.”
Plaintiffs then instituted this action in the Civil District Court on July 7,
2014 against Drs. Carriere and Jones, and their respective professional liability
insurers, Lexington Insurance Company and Health Care Indemnity, Inc.
On May 21, 2015, Dr. Carriere and Lexington filed a Motion for Summary
Judgment seeking to be dismissed from the lawsuit on the basis that the plaintiffs
would be unable to sustain their burden of proof that Dr. Carriere breached the
standard of care required of him in his treatment of Ms. Granier, or that any action
on his part resulted in injury to Ms. Granier. The record does not reflect that a
response was filed in opposition to the motion for summary judgment or that
counsel for plaintiffs participated in the hearing on the motion. By judgment dated
August 14, 2015, the trial court granted the summary judgment motion, dismissing
the action against Dr. Carriere with prejudice.
On January 17, 2019, Dr. Jones and Health Care Indemnity, Inc.
(collectively referred to as “Dr. Jones”) filed a peremptory exception of
prescription. After a hearing on the matter, the trial court granted the exception of
prescription by judgment dated May 20, 2019.
This appeal followed.
Standard of Review, Generally
Ordinarily, a judgment sustaining a peremptory exception of prescription is
reviewed de novo by an appellate court. Kirt v. Metzinger, 19-0180, p. 4 (La. App.
4 Cir. 6/19/19), 274 So.3d 1271, 1273 (“Appellate courts assess the legal
correctness of an exception of prescription under a de novo standard review.”).
4
However, “‘[w]hen prescription is raised by peremptory exception, with evidence
being introduced at the hearing on the exception, the trial court’s findings of fact
on the issue of prescription are subject to the manifest error-clearly wrong standard
of review.’” In re Med. Review Panel of Hurst, 16-0934, p. 4 (La. App. 4 Cir.
5/3/17), 220 So.3d 121, 125-26, writ denied, 17-0803 (La. 9/22/17), 228 So.3d
744, (quoting Specialized Loan Servicing, L.L.C. v. January, 12-2668, pp. 3-4 (La.
6/28/13), 119 So.3d 582, 584). See also, Ferrara v. Starmed Staffing, LP, 10
0589, p. 4 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, 865 (“[w]hen evidence is
introduced and evaluated at the trial of a peremptory exception, an appellate court
must review the entire record to determine whether the trial court manifestly erred
with its factual conclusions.”).
DISCUSSION
The sole issue presented in this appeal is whether the trial court properly
granted Dr. Jones’ exception of prescription.
In the context of a medical malpractice case, an action must be “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 A. Such an action is
commenced by invoking a medical review panel pursuant to La. R.S. 40:1231.8.
As a general rule, the burden of proving that a cause of action has prescribed
rests with the party pleading prescription; however, when “prescription is evident
on the face of the pleadings, the burden shifts to the plaintiff to show the action has
not prescribed.” Jones v. State, 04-0717, p. 3 (La. App. 4 Cir. 9/29/04), 891 So.2d
5
698, 701. As this Court recently recognized, where a complaint “sets forth no
‘facts alleged with particularity . . . to show that [a plaintiff] was unaware of the
malpractice prior to the alleged date of discovery’ . . . [and the] complaint was
filed more than one year after the date of the alleged malpractice, [a] complaint, on
its face, is prescribed [and] the burden shift[s] to [the plaintiff] to show that [the]
action is not prescribed.” Hurst, 16-0934, pp. 5-6, 220 So.3d at 126.
Here, the request for a review of Dr. Jones’ treatment of Ms. Granier was
made more than two years after Dr. Jones treated her. The request sets forth no
“particularized” facts which demonstrate the date of the plaintiffs’ discovery of the
alleged malpractice or any explanation as to why Dr. Jones was being added as a
defendant at such a late date. Accordingly, on its face, the claim against Dr. Jones
was untimely filed and the burden shifted to plaintiffs to show that it had not
prescribed. To meet this burden, the plaintiffs necessarily were required to show
“the suspension, interruption or renunciation of prescription.” See Jones, 04-0717,
p. 3, 891 So.2d at 701. In other words, for the claim against Dr. Jones to have been
timely, it must either fall within the purview of La. R.S. 40:1231.8 A(2)(a), which
provides for the suspension of prescription against all joint and solidary obligors,1
or have an independent basis for timeliness.
1 La. R.S. 40:1231.8 A(2)(a) provides, in pertinent part, that “[t]he filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.” See also, Ferrara v. Starmed Staffing, LP, 10-0589, p. 3 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, 864, (“the filing of a medical malpractice claim with a medical review panel triggers the suspension of prescription specially provided by the [Medical Malpractice Ace], rather than the interruption of the liberative prescriptive period generally provided in the Civil Code.”); Graham v. St. Charles Gen. Hosp., 590 So.2d 818, 821 (La. App. 4 Cir. 1991)(“the filing of a claim with the medical review panel suspends prescription with regard to non-named solidary obligors to the same extent that it is suspended for those named in the request for review by the panel.”).
6
Plaintiffs cannot rely on the suspension of prescription against solidary
obligors provisions if La. R.S. 40:1231.8 in this case. Although the medical
review panel proceeding was timely commenced against Dr. Carriere, those claims
were dismissed from this case on a motion for summary judgment, the basis of
which was plaintiffs’ inability to meet their burden of proving “that there was a
deviation from the standard of care and a causal connection between the
allegations of Dr. Carriere’s malpractice and the damages sustained by Ms.
Granier.” Our jurisprudence reflects that “where no liability is found on the part of
a timely sued alleged tortfeasor, prescription will not be interrupted or suspended
as to another tortfeasor, who is not timely sued, since no joint or solidary
obligation exists.” Ferrara v. Starmed Staffing, LP, 10-0589, p. 5 (La. App. 4 Cir.
10/6/10), 50 So.3d 861, 866. See also, Sims v. Am. Ins. Co., 12-0204, pp. 6-7 (La.
10/16/12), 101 So.3d 1, 6 (“while prescription is interrupted by suit against one
solidary obligor or joint tortfeasor as to the other solidary obligors and joint
tortfeasors not timely sued, . . . where the timely sued defendant is ultimately
found not liable to plaintiffs, the suit against the untimely sued defendants will
then be dismissed, because no joint or solidary obligation would exist.”).
Accordingly, because Dr. Carriere was dismissed with prejudice from this action,
prescription was not suspended as to Dr. Jones as there is no joint or solidary
obligation.
Plaintiffs’ position in this matter is that the suit against Dr. Jones was
instituted “within one year from the date of [the] discovery” of his “alleged act,
omission, or neglect” as contemplated by La. R.S. 9:5628 A. They contend that,
during the course of the medical review panel proceeding, Dr. Carriere’s
deposition was taken and plaintiffs learned for the first time that Dr. Carriere had
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spoken with Dr. Jones on October 2, 2009, the day that she first saw Dr. Jones. In
that conversation, plaintiffs argue, Dr. Carriere provided Dr. Jones with sufficient
information for Dr. Jones to have known that Ms. Granier was suffering from a
bowel perforation. Thus, plaintiffs maintain that Dr. Jones was well aware that
Ms. Granier was not suffering from an ileus, as he initially diagnosed, and should
have immediately transferred her for emergency surgery. The one-day delay in her
surgery, plaintiffs argue, led to further complications and a worsening of Ms.
Granier’s condition.
Plaintiffs maintain that they were unaware of the October 2, 2009
conversation between Drs. Carriere and Jones until Dr. Carriere’s deposition had
been taken. They likewise were unaware until then that Dr. Carriere had notified
Dr. Jones that he had injured Ms. Granier’s bowel for two reasons. First, Dr.
Carriere went out of town on the day of her surgery and did not complete his
operative report for ten days.2 Second, nothing in the medical records reflected
that Dr. Carriere had spoken with Dr. Jones on October 2. Therefore, plaintiffs
argue, they could not have known that Dr. Jones negligently delayed Ms. Granier’s
surgery until Dr. Carriere’s deposition had been taken.
Our jurisprudence is well-settled that the “discovery” rule provided by La.
R.S. 9:5628 A is an exception to the general rule that medical malpractice actions
must be commenced within one year of the date of the alleged malpractice. In re
Med. Review Panel for Claim of Moses, 00-2643, p. 8 (La. 5/25/01), 788 So.2d
1173, 1178. As the Louisiana Supreme Court explained:
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. A
2 None of Ms. Granier’s medical records are contained in the record before us.
8
prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. 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 running of prescription.
Campo v. Correa, 01-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502, 510-11
(internal citations omitted). The Campo Court further indicated that, “[e]ven if a
malpractice victim is aware that an undesirable condition has developed after the
medical treatment, prescription will not run as long as it was reasonable for the
plaintiff not to recognize that the condition might be treatment related.” Id., p. 12,
828 So.2d at 511 (citing Griffin v. Kinberger, 507 So.2d 821 (La.1987))(emphasis
supplied). “When a plaintiff has knowledge of facts strongly suggestive that the
untoward condition or result may be the result of improper treatment ... then the
facts and cause of action are reasonably knowable to plaintiff.” Champagne v.
Brint, 04-1128, p. 4 (La. App. 4 Cir. 1/19/05), 893 So.2d 119, 122 (quoting Harlan
v. Roberts, 565 So.2d 482, 486 (La. App. 2 Cir.1990)).
Thus, “[t]he ultimate issue is the reasonableness of the patient’s action or
inaction, in light of his education, intelligence, the severity of the symptoms, and
the nature of the defendant’s conduct.” Campo, p. 12, 828 So.2d at 511. As we
noted in Hurst, findings of fact, such as the “discovery date” in a medical
malpractice case, are subject to an manifest-error review, and “[t]he relevant issue
in a manifest error inquiry is not whether the finder of fact was right or wrong, but
whether its decision was a reasonable one.’” Hurst, 16-0934, p. 4, 220 So.3d at
9
126 (quoting Marino v. Tenet Healthsystem Med. Ctr., 09-0915, p. 4 (La. App. 4
Cir. 11/24/09), 26 So.3d 297, 300).
Plaintiffs do not dispute that Ms. Granier was aware early on that she had
suffered a bowel perforation; in her deposition testimony, she confirmed that she
and her husband were aware of the bowl perforation as early as October 27 when
she was transferred to another facility. They do, however, dispute their knowledge
of Dr. Jones’ alleged malpractice in failing to timely diagnose a bowel perforation
and rely on the following excerpts from Dr. Carriere’s September 28, 2011
deposition in support of their contention that Dr. Carriere advised Dr. Jones on
October 2 that he had injured Ms. Granier’s bowel:3
Q: When you initially spoke to Dr. Hogan on Friday, October 2nd, you did not believe that she had a bowel perforation [?]4
A: I think what we did was we considered it. But, then again, Doctor Jones, which was the general surgeon that they consulted, indicated that he thought it was an ileus. And at that time they elected just to observe her.
***
A: . . . He [Dr. Jones] just asked me - - I basically told him what we did - - what I did intraoperatively.
Q: On September 29th?
A: That’s correct. And me not being there, I’m certainly not going to override a physician who’s - - who has more expertise with the gut than I do.
3 The record does not contain complete copies of depositions; it contains only portions which were attached to the various pleadings.
4 Dr. Hogan was the physician covering for Dr. Carriere at that time who called Dr. Jones in for a consultation.
10
Q: Did you have any conversation with Doctor Jones specifically about the denuded area that you had oversewn on September 29th?
A: I told him we had adhesions. And - - and that - - and that we had some adhesions. I don’t know if I expressed it as denuded. But we had some adhesions that we had to take down on the sigmoid colon.
Q: Did you tell him that you had oversewn the area?
A: I may have.
Plaintiffs also rely on the following excerpts from Dr. Carriere’s December
7, 2011 deposition in support of their position:
Q: Did you discuss with them specifically the denuded area of the bowel?
A: I specifically discussed with them the fact that they had some adhesions. And that we had to take down some adhesions. And I had oversewn some area, yes.
Q: Okay. Because at this point based on the patient’s symptoms - - and when I say at this point, I’m talking about at the point where you’re having the conversations with Doctor Jones and Doctor Hogan. The potential diagnoses that they were discussing would be ileus or bowel perforation, correct? Those would be the options?
A: Correct.
Q: And so I assume that the discussion was geared towards trying to determine which of those things was more likely, whether it was ileus or bowel perforation.
A: I think the purpose was for me just to tell them the facts of what - - what occurred in this case. Now, for - - for them to determine whether it’s an ileus or a perforated viscous, you know, sort of - - sort of up to them to determine. I wasn’t present for that.
11
Q: I understand. But my question is a little broader. Was the general nature of the discussion about what the potential diagnoses were, or was it more limited while you were present on the phone with just what happened when you did your laparotomy and - -
A: It was more limited to what I did.
Q: And was there any discussion with you and them about what her potential diagnosis was at the time?
A: I think Doctor Jones had indicated because he had examined the patient that he felt it was an ileus. I think that was the extent of the discussion on that. I mean, like I said, I wasn’t there. I certainly couldn’t make the diagnosis over the phone.
Q: Did Doctor Jones specifically say in that conversation , I believe it’s an ileus?
A. I mean, his notes reflect what he told me.
Q: Well, his notes reflect that he initially made the diagnosis of an ileus.
A: Right.
Q: And subsequently - -
A: Right.
Q: - - diagnosed a perforation.
A: Right.
Q: But they don’t - - there are no notes that reflect a conversation with you.
Contrary to plaintiffs’ position, this testimony does not establish that Dr.
Carriere admitted to Dr. Jones that he had injured Ms. Granier’s bowel during her
initial surgery which would have caused a perforation. To the contrary, he advised
Dr. Jones that he found adhesions that he had “to take down” and had “oversewn”
12
the area (curiously, Dr. Carriere was asked during his deposition what he meant by
“oversewn” but his response to this question was not contained in the deposition
excerpts in the record).
It is clear that Dr. Carriere discussed with Dr. Jones the potential diagnoses
and whether she was suffering from an ileus or a bowel perforation, but Dr.
Carriere deferred to Drs. Jones and Hogan as it was “up to them to determine.”
Even Dr. Carriere did not believe Ms. Granier had a bowel perforation until
October 3 (i.e., after the October 2 conversation upon which plaintiffs rely). When
asked “when did [he] first suspect relative to September 29th that [Ms.] Granier
had a bowel perforation,” he indicated that it was “[w]hen [he] spoke with Doctor
Hogan on the 3rd.” He “wasn’t too sure” about this on October 2, although it was
a consideration. In a one-page excerpt of Dr. Jones’ deposition included in the
record, Dr. Jones testified that, while Dr. Carriere indicated that “there was a very,
very minor denution of the serosa of the bowel . . . that . . . was repaired,” “there
were no other -- there were no other bowel manipulation that would create a bowel
injury.”5 Dr. Jones confirmed “that he didn't do anything that should have resulted
in a bowel injury,” further corroborating that Dr. Jones did not definitively know
on October 2nd that Ms. Granier was suffering from a bowel perforation and
justifying his decision to initially treat her conservatively.6
5 The one-page excerpt does not indicate when this conversation took place, and in fact, does not even identify Dr. Carriere as the person to whom Dr. Jones was referring. We assume that this pertains to the October 2nd conversation with Dr. Carriere.
6 Indeed, the medical review panel found that “Dr. Jones did not initially feel that the patient exhibited compelling evidence of a surgical abdomen. Abdominal distention following an open procedure with hypokalemia could reasonably explain the patient’s clinical presentation and justify Dr. Jones’ initial decision to treat the patient conservatively. It was reasonable to delay surgical exploration for an adequate trial of conservative therapy.”
13
Moreover, as the Supreme Court noted in Campo indicated, when the
“discovery” of a malpractice claim is at issue, a patient has constructive knowledge
of a claim when there is enough notice “to excite attention” and “call for inquiry,”
particularly in light of a patient’s education and intelligence.
In this instance, in 2009, Ms. Granier had been a nurse for seventeen years;
thus, as a medical professional, she possessed training and experience in the
medical field that a lay person might not have had. She testified in her deposition
that that she was aware that she had a bowel perforation no later than October 27,
indicating that she spoke with Dr. Carriere during her two-month stay at St.
Theresa’s about her perforated bowel.7 He explained to her “what he thought
happened” – that she “might have had an ileus, where the bowel doesn’t, actually,
move for a while after surgery; and that once the ileus resolved, the thinned area
perforated.”
Ms. Granier’s next statements are a key to the resolution of the issue
presented in this case. When asked if she could recall anything else about her
conversation with Dr. Carriere, Ms. Granier testified that “he couldn’t understand
why it got to that point;” that is, “why didn’t they do something immediately.”
When asked who should have done something immediately, Ms. Granier replied,
“the ER; and the doctors that were taking care of me . . . the Tulane’s ER; the
Tulane doctors.”8 This exchange signifies that Ms. Granier was put on notice, no
later than November 29, 2009, sufficient to “excite attention” that there had been
an allegedly unreasonable delay in the treatment of her perforated bowel. At the
7 Ms. Granier testified that she was at St. Theresa’s from October 27, 2009 through November 29, 2009.
8 Dr. Jones treated Ms. Granier at Tulane-Lakeside Hospital, where she had been transferred.
14
least, the acknowledgement that they “didn’t . . . do something immediately”
indicates constructive knowledge of the facts allegedly giving rise to her claim
against Dr. Jones, and sufficient “information or knowledge as ought to reasonably
put [plaintiffs] on inquiry” and “to start the running of prescription.” Campo, p.
12, 828 So.2d at 512.
We do not find the Third Circuit decision of Andrus v. Patton, 394 So.2d
714 (La. App. 3rd Cir. 1981), a case on which plaintiffs rely, to be persuasive. In
that case, the plaintiff underwent what he was ultimately advised was an
unnecessary surgery leading to various complications. After that surgery, he
repeatedly returned to the physicians for follow-up care until he was told that there
was nothing further that could be done and, when questioned as to “why he was
experiencing so many post-operative difficulties and they informed him his
problems were caused by a throat infection.” Id., at 17. When he sought treatment
with several other physicians, all advised that his surgery had been unnecessary.
The Andrus Court found that “the plaintiff [could not] be held to have
knowledge of his entitlement to bring a malpractice suit against the defendants
until such time as he was informed nothing further could be done for him and he
consulted with other medical practitioners who allegedly informed him that the
second operation was unnecessary.” Id. at 717. Its holding was based, in part, on
the fact that the plaintiff was “neither well-educated nor knowledgeable in the
procedures and techniques of modern medicine” and as such, the Court could not
say that he “failed to exercise reasonable diligence in ascertaining the cause of his
continued problems nor that he possessed more than a ‘mere apprehension’ that
‘something was wrong.’” Id. at 717-18.
15
The Andrus case is not analogous to the instant matter. Unlike the Andrus
plaintiff, Ms. Granier had medical training, and unlike Andrus, Ms. Granier had
sufficient information to incite further inquiry as to whether her injuries resulted
from Dr. Jones’ failure to “do something immediately.”
Based upon our review of the record before us, we cannot say that the trial
court’s decision was not reasonable and thus, we find no manifest error in the trial
court’s finding that the plaintiffs’ action against Dr. Jones is prescribed.
Outcome: For the reasons set forth more fully herein, we affirm the trial court’s
judgment granting the Exception of Prescription of Dr. Jones and Health Care
Indemnity, Inc.
Plaintiff's Experts:
Defendant's Experts:
Comments: