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Williams v. Tri-State Physical Therapy Inc.6/25/2003
under the ongoing medical care of Gleason and was relying on Gleason for the diagnosis of his continuing back problems, constructive knowledge of the cause of the instant injury by Billy was factually impossible, which falls under the fourth situation in which contra non valentem applies as set forth by this court in Stett v. Greve, 35,140 (La. App. 2d Cir. 2/27/02), 810 So. 2d 1203. Thus, we find the reasonable date of discovery of the actionable event to be July 1, 1998, which commenced the tolling of prescription under La. C.C. art. 3492.
Billy's Notice to the Division
Billy urges that the filing of the notice with the Division dated June 7, 1999, which the record indicates was received as certified mail by the Division on June 9, 1999, was within one year of Billy's July 1, 1998, notice of the repeat MRI results, which served to suspend the prescriptive period.
La. R.S. 40:1299.41, provides in relevant part:
A. As used in this part:
(1) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a ...physical therapist.......
D. A health care provider who fails to qualify under this Part is not covered by the provisions of the Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient's remedy will not be affected by the terms and provisions of this Part, except as hereinafter provided with respect to the suspension and the running of prescription of actions against a health care provider who has not qualified under this part when a claim has been filed against a health care provider for review under this Part.
(Our emphasis)
As was the case in Holmes, supra, when this court found that pharmacists were listed as health care providers under and subject to the Medical Malpractice Act, we likewise find that physical therapists are subject to the Medical Malpractice Act. Accordingly, Billy was required to follow the formalities of the Medical Malpractice Act before filing suit in the First Judicial District Court. See, Holmes, supra, at 1235, 1236, citing, LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So. 2d 1226.
La. R.S. 40:1299.47 provides in relevant part:
A. (1) All malpractice claims against health care providers covered under this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a Medical Review Panel established as hereinafter provided for in this Section.
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the Medical Review Panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who is not qualified under this Part, until sixty days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part.
(Our emphasis)
The record reflects that the PCF notified Billy by letter dated July 30, 1999 that Tri-State was not covered under the PCF; there exists no proof in the record as to Billy
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