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Jeter v. Shamblin2/1/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
GASKINS, J., concurring in part and dissenting in part.
In this medical malpractice action, the trial court sustained defendant's exception of prescription. The trial court held that the doctrine of contra non valentem was inapplicable in this case, and that sustaining the exception of prescription based on La. R.S. 9:5628 did not violate plaintiffs' right to equal protection under the law. From this judgment the plaintiff has appealed. For the reasons set forth below, we affirm in part, vacate in part, and remand.
Facts
In her request for a medical review panel, Bobbie F. Jeter ("Jeter") made the following factual allegations. On or about August 13, 1980, she was admitted to Springhill Medical Center to undergo a gastric stapling procedure. The surgery was performed by Dr. James R. Shamblin ("Shamblin"). Following the procedure, Jeter was kept on a liquid diet; however, when she later attempted to eat solid foods, she began vomiting. Jeter experienced "constant nausea and vomiting" for several months after her operation, and returned to Shamblin for treatment. Shamblin prescribed various medications and maintained her on a pureed diet. After conservative measures failed to relieve Jeter of her nausea and vomiting, Shamblin decided to reverse the gastric stapling. Jeter consented to and underwent the procedure. Shamblin treated Jeter until December 10, 1985, more than twelve years before the filing of this complaint.
Although Jeter's symptoms improved to the point where she could hold food down, she continued to experience stomach problems. In 1995 she began seeing Dr. Wayne Sessions, who unsuccessfully treated her stomach problems for over two years. Eventually she was referred to a gastro-enterologist who performed an endoscopy on September 4, 1997. During this procedure, the gastro-enterologist discovered a staple or "silastic ring" that had "partially eroded into the wall of the stomach." The ring was removed during the endoscopy. The endoscopy was the first time Jeter learned that Shamblin had not removed all of the staples in her stomach.
Jeter's request for a medical review panel was filed on September 8, 1998, within one year of the discovery of the stomach staple. Her claims against Shamblin were alleged in terms of his negligent failure to remove the stomach staple. Her request was met with an exception of prescription filed by Shamblin on November 12, 1998.
In support of the exception of prescription, Shamblin showed that his treatment of Jeter terminated on December 10, 1985. Other than Jeter's petition commencing the medical review panel process and a letter confirming the final date of Shamblin's treatment, there was no other evidence presented to the trial court for its consideration of Shamblin's exception.
The trial court sustained Shamblin's exception of prescription, noting in its judgment that the doctrine of contra non valentem was inapplicable. The judgment also specifically ruled that sustaining the exception under La. R.S. 9:5628 did not violate Jeter's right to equal protection under the law. This appeal followed, and Jeter asserts the following issues for our review: (1) Whether the doctrine of contra non valentem is applicable in this case; (2) Whether Shamblin's actions constitute a "continuing tort," thereby suspending prescription; and (3) Whether La. R.S. 9:5628 is unconstitutional under the facts of this case.
Prescription of Medical Malpractice
The prescriptive period for claims of medical negligence is set forth in La. R.S. 9:5628 which provides, in pertinent
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