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Williams v. Tri-State Physical Therapy Inc.6/25/2003
The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, and severity of the symptoms and the nature of the defendant's conduct. Campo, supra at 511, citing, Griffin, supra at 821.
In the instant proceeding, the trial court heard the peremptory exception of prescription filed by Tri-State and Barnes, at which time the trial court heard the arguments of the parties and accepted into evidence upon stipulation of the parties, all notes and reports of Gleason and Tri-State relating to Billy's medical care and physical therapy, respectively, as listed supra. Without written reasons, the trial court ruled that Billy's claims had prescribed.
On the record before us, we find, based on Gleason's reports as discussed supra, and the jurisprudence set forth regarding reasonable notice in Griffin and Campo, supra, and by this court in 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, reasonable notice of the instant tort occurred on July 1, 1999 when he learned the results of his repeat MRI. Billy's mere knowledge that he experienced an exaggeration of his original back injury during the FCE and that an undesirable condition developed during his physical therapy treatment and prior to his knowledge of the repeat MRI, fails to equate to knowledge sufficient to place Billy on inquiry that a non-work related or non-treatment related subsequent tort may have arisen against Tri-State and Barnes sufficient to commence prescription. See, Campo, supra at 512, 513. Moreover, before, during and after the FCE, Billy was under the strict medical care of Gleason, who engaged Tri-State for Billy's conservative treatment. As reflected in Gleason's reports of February, March, April, May, and June, 1998 discussed supra, even Gleason was unsure about the effects of the FCE 100 pound lift on Billy, by his noting that the FCE incident was a temporary setback and temporary exacerbation of Billy's underlying work-related back injury to his L5-S1 disk. Not until physical therapy appeared to fail in June, 1998, did Gleason order a repeat MRI on July 1, 1999 which led Gleason to the knowledge that the FCE lift test caused additional degenerative damage and Billy's bulging disk at L5-S1 was in a worse condition than shown by Billy's last post-injury MRI of August 1997. There is no evidence in the record or produced by Tri-State or Barnes which suggests that Billy was ever "pain-free" from his underlying work-related back injury prior to the employer-required FCE on February 13, 1998. In fact, Gleason's reports indicate that Billy's maximum lift ability during work hardening with Tri-State never exceeded 40 pounds and that Billy's pain level fluctuated during his physical therapy treatments pre and post FCE. In light of the weekly medical treatment regimen between Gleason and Billy, especially following the FCE, we do not find Billy acted unreasonably in failing to recognize that his degenerative disk condition at L5-S1 may have been in a worse condition than before the FCE. Not until the results of the repeat MRI were disclosed to Gleason and Billy was Billy able to acquire the requisite knowledge beyond a mere apprehension that his ongoing back problems were significant and directly related to the FCE, as opposed to being related to his underlying back injury or the physical therapy thereof. To find otherwise would place an undue burden on Billy to have self-diagnosed the cause of his ongoing lower back pain and problems prior to Gleason ordering a repeat MRI on July 1, 1998, which definitively connected Billy's ongoing back pain to the FCE. See, Campo at 512, 513. Furthermore,we find that since Billy was
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