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Fay v. Conway Medical Center6/21/2000
Judgment rendered June 21, 2000. Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
In this medical malpractice action, the plaintiff, Linda Faye Collum, appeals from a district court judgment sustaining an exception of prescription in favor of the defendant, E.A. Conway Medical Center. For the reasons expressed herein, we affirm.
Factual Background
Mrs. Collum underwent a hysterectomy at E.A. Conway on January 29, 1986, and reported no serious complications or complaints afterward. Years later, due to complaints of urinary incontinence, she had surgery to repair her rectum and vagina, and also underwent a bladder suspension on August 19, 1993. In August 1997, she passed a great deal of blood due to bleeding in her bladder; a subsequent examination revealed that a stitch was left in her bladder during the 1993 operation. She underwent surgery to remove the stitch on February 12, 1998. She then filed a request for a Medical Review panel on May 11, 1998 alleging medical malpractice in that E.A. Conway personnel failed to reapproximate her peritoneum in the 1986 surgery and allowed a stitch to be placed through her bladder and pelvic bone in the 1993 surgery. In the subsequent lawsuit, E.A. Conway filed the instant exception of prescription. The district court, after a hearing, sustained E.A. Conway's exception and dismissed Mrs. Collum's claim. This appeal followed.
Discussion
Although the burden of proving that a suit has prescribed generally rests with the party pleading prescription, when a plaintiff's petition facially shows 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.
In brief, both sides agree that although Mrs. Collum filed her complaint within one year of discovery of the stitch in her bladder, facially, her claim is prescribed by La.R.S. 9:5628 A, which states, in pertinent part:
A. No action for damages for injury or death against any physician . . . 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 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.
This prescription statute for medical malpractice claims states the general one-year period for prescription of tort claims while specifically intending "to restrict the application of the `discovery rule,' or fourth category of contra non valentem, by providing that, regardless of the date of discovery, a claim must be filed at the latest within three years of the alleged act, omission or neglect." Rajnowski v. St. Patrick's Hospital, 89-2786 (La. 5/24/90), 671 So.2d 671, 674; Whitnell v. Menville, 540 So.2d 304, 309 (La. 1989).
At trial, Mrs. Collum did not contest the statute's applicability, but rather argued that her claim fell under the third category of contra non valentem because her ignorance of a potential cause of action was in some way "induced" by the defendants when they allegedly neglected to inform her of their actions. This third category suspends prescription when the defendant engages in conduct which prevents the plaintiff from availing himself of judicial remed
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