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Williams v. Tri-State Physical Therapy Inc.6/25/2003
cription set forth in La. R.S. 9:5628, regulating actions for medical malpractice. Under the provisions of La. C.C. art. 3492, if prescription is evident on the face of the pleadings, the burden of proof shifts to the plaintiff to show that the action has not prescribed. See, Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So. 2d 502. Furthermore, when the plaintiff's petition shows on its face that the prescriptive period has run, and the plaintiff relies on a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Holmes v. Lee, 35,021 (La. App. 2d Cir. 9/28/01), 795 So. 2d 1232, 1235, citing, Burdeaux v. Cline, 626 So. 2d 1205 (La. App. 2d Cir. 1993), writ denied, 93-3132 (La. 2/11/94), 634 So. 2d 833.
Billy urges, in his third assignment of error, that by his filing a request for a Medical Review Panel within one year of Billy's discovery date of his back re-injury, his claim is timely pursuant to La. R.S. 40:1299.47(A)(2)(a), infra.
In response to this assignment of error, Tri-State and Barnes argue that Billy's filing of a claim with the Medical Review Panel on June 7, 1999 was not timely as Billy had actual notice of his back re-injury on February 13, 1998 during the FCE, while performing the 100 pound test required by Roadway. Tri-State and Barnes argue specifically that Billy's complaints for over three months to Gleason and Tri-State regarding back pain following the FCE demonstrates Billy's full awareness of his re-injury during the FCE. Lastly, Tri-State and Barnes argue that, notwithstanding Billy's knowledge for the three months following the FCE, Billy's June 2, 1998 comment to Barnes that "If I just hadn't lifted that 100 pounds, I'd be doing ok" reflects Billy's requisite knowledge to commence prescription and thus, Billy's June 7, 1999 claim filed with the Division had prescribed.
The Reasonable Date of Discovery
Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Campo, supra at 510, citing, Percy v. State, E.A. Conway Memorial Hosp., 478 So. 2d 570 (La. App. 2d Cir. 1985). A 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 the running of prescription. Campo, supra at 510, 511, citing, Ledet v. Miller, 459 So. 2d 202 (La. App. 3d Cir. 1984), writ denied, 463 So. 2d 603 (La. 1985); Bayonne v. Hartford Insurance Co., 353 So. 2d 1051 (La. App. 2d Cir. 1977); Opelousas General Hospital v. Guillory, 429 So. 2d 550 (La. App. 3d Cir. 1983). Nevertheless, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Campo, supra at 511, citing, Gunter v. Plauche, 439 So. 2d 437, 439 (La. 1983). Even 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. Campo, supra at 511, citing, Griffin v. Kinberger, 507 So. 2d 821 (La. 1987).
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