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Lagrange v. Schumpert Medical Center6/21/2000
t.
Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiff's petition shows on its face that the prescriptive period has expired, the burden shifts to the plaintiff to demonstrate suspension or interruption of the prescriptive period. Wilkes v. Carroll, 30,066 (La. App. 2d Cir. 12/10/97), 704 So. 2d 938.
When it appears on the face of the petition that prescription has accrued, the plaintiff must allege and prove facts indicating that the injury and its causal relationship to the alleged misconduct were not apparent or discoverable until within one year before the suit was filed. White v. Willis-Knighton Medical Center, 25,575 (La. App. 2d Cir. 2/23/94), 632 So. 2d 1198, writ denied, 94-1024 (La. 6/17/94), 638 So. 2d 1098.
The one year prescriptive period commences on the date that an injured
party discovers or should have discovered the facts on which to base a cause of action. When a party has sufficient information to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry, he or she has the constructive knowledge necessary to start the running of prescription. Herold v. Martinez, supra. The law of prescription does not require that the patient be informed by a medical practitioner or an attorney of possible malpractice before the commencement of the running of prescription. Dixon v. Louisiana State University Medical Center, 33,036 (La. App. 2d Cir. 1/26/00), 750 So. 2d 408.
Constructive knowledge sufficient to begin the running of prescription requires more than a mere apprehension that something might be wrong, but a "reasonable basis for filing suit against a defendant" is sufficient. Kavanaugh v. Long, 29,380 (La. App. 2d Cir. 8/20/97), 698 So. 2d 730, writ denied, 97-2554 (La. 5/15/98), 719 So. 2d 67. In other words, the simple knowledge that "an undesirable condition has developed at some time after the medical treatment" does not equate to knowledge of everything to which inquiry might lead. The issue is the reasonableness of the patient's action or inaction, in light of his education and intelligence, severity of symptoms, and the nature of the defendant's conduct. Kavanaugh v. Long, supra.
Prescription does not run as long as it is reasonable for the plaintiff not to recognize that the condition may be related to treatment. 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 the plaintiff through inquiry or professional medical or legal advice, then the facts and the cause of action are reasonably knowable to the plaintiff. Inaction by the plaintiff for more than one year under these circumstances is not reasonable. Herold v. Martinez, supra; White v. Willis-Knighton Medical Center, supra; Bossier v. Ramos, 29,766 (La. App. 2d Cir. 8/20/97), 698 So. 2d 711, writ denied, 97-2583 (La. 12/19/97), 706 So. 2d 463; Chandler v. Highland Clinic, 28,204 (La. App. 2d Cir. 4/3/96), 671 So. 2d 1271. Ignorance of the probable extent of the injuries materially differs from ignorance of actual harm, which delays the commencement of prescription. Dufriend v. Tumminello, 590 So. 2d 1354 (La. App. 5th Cir. 1991), writ denied, 592 So. 2d 1335 (La. 1992).
DISCUSSION
On appeal, the plaintiff argues that the petition to convene a medical review panel was timely and the trial court erred in granting the exception of prescription in favor of Schumpert. He contends that during his hospital stay, he was confused
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