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Adams v. Ochsner Clinic of Baton Rouge11/3/2000
In this appeal, Hannah Jo and Sam Adams, Jr. challenge a trial court judgment dismissing their medical malpractice claim against Dr. Mark D. Hannis and Ochsner Clinic of Baton Rouge (Ochsner Clinic) based on an exception of prescription.
FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 1989, Mrs. Adams underwent a routine physical examination by Dr. Hannis at Ochsner Clinic. Dr. Hannis ordered several tests, including x-rays of Mrs. Adams' chest, which were taken on November 29, 1989. The resulting radiology report indicated Mrs. Adams' right hilum was "prominent and denser than the left." Follow-up was suggested by either a comparison to any available pre-existing x-rays or by a chest CT or further x-rays in four to six weeks. Mrs. Adams returned to see Dr. Hannis on December 8, 1989, to discuss her test results, but no mention was made of or further action taken regarding her chest x-ray results.
Almost one year later, Mrs. Adams returned to Dr. Hannis' office for another physical examination. X-rays were again ordered and a mass was discovered in the right center of Mrs. Adams' chest. Further testing revealed Mrs. Adams had adenocarcinoma of the right lung. In January of 1991, Mrs. Adams' entire right lung was removed.
In September of 1997, Mrs. Adams attended a hearing related to her claim for social security disability benefits. According to Mrs. Adams, she was first informed of the existence of the "abnormal" November 29, 1989 x-ray results by the administrative law judge conducting the disability benefits hearing. In July or August of 1998, she and Mr. Adams filed a "Petition for Damages Resulting from Medical Malpractice and Request for Review of Claim" with the State of Louisiana, Commissioner of Administration.
On February 9, 1999, Dr. Hannis and Ochsner Clinic filed an exception of prescription in the district court. After two hearings, the trial court granted the exception and dismissed the Adamses' petition with prejudice. Mr. and Mrs. Adams appeal from this adverse judgment, contending the trial court erred in concluding prescription was not suspended under the doctrine of contra non valentem by Dr. Hannis' failure to tell Mrs. Adams of the "abnormal" November 29, 1989 x-ray.
PRESCRIPTION
Generally, a medical malpractice action must be filed within one year of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect, but in all cases, no later than three years from the date of the alleged act, omission or neglect. La. R.S. 9:5628(A); Wang v. Broussard, 96-2719 (La. App. 1 Cir. 2/20/98), 708 So.2d 487, 490, writ denied, 98-1166 (La. 6/19/98), 720 So.2d 1213. Ordinarily, the burden of proof is on the party pleading prescription; however, if on the face of the petition it appears prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Reno v. Perkins Engines, Inc. 98-1686 (La. App. 1 Cir. 9/24/99), 754 So.2d 1032, 1034, writ denied, 99-3058 (La. 1/7/00), 752 So.2d 863.
In the present case, the "alleged act , omission , or neglect" identified by the Adamses, as they relate to Dr. Hannis are:
1. Failure to review abnormal radiology report of [November 29, 1989].
2. Misdiagnosis or failure to diagnose carcinoma of the right lung immediately following the x-ray of [November 29, 1989].
3. Failure to ever inform Mrs. Adams of the abnormal chest x-ray taken November 29, 1989.
4. Failure to refer Mrs. Adams for oncological consult or other consult following the abnormal x-ray of November 29, 1989[,] as sugge
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