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Benoit v. Archer6/26/2002
REVERSED.
Amy, J., dissents
Plaintiffs appeal the judgment of the trial court holding their claim for medical malpractice had prescribed. For the following reasons, we reverse.
FACTS
Pamela Benoit was first seen by Dr. D. Dale Archer, Jr., in October of 1988. She related to him a history of experiencing anxiety and depression. Mrs. Benoit also told Dr. Archer she was then taking Tranzene, but complained it made her sleepy. Dr. Archer diagnosed her as having "generalized anxiety," prescribed her Xanax, and scheduled a follow up appointment a month later. For a six year period, Dr. Archer continued prescribing Xanax to treat Mrs. Benoit's anxiety condition.
According to Mrs. Benoit, on November 11, 1994 she sought a second opinion from Dr. John Bambenek and was informed that the prolonged use of Xanax prescribed by Dr. Archer was inappropriate. She was prescribed Prozac instead. Multiple attempts were made to wean Mrs. Benoit off Xanax with unsuccessful results. She eventually required inpatient treatment for Benzodiazepine dependence, and was successfully weaned off Xanax.
A medical malpractice action was filed with the Patient's Compensation Fund on November 13, 1995. Mrs. Benoit alleged, as a result of the prolonged use of Xanax, she sustained brain damage which she described as cognitive deficits which are permanent and disabling. Her husband and son joined in her suit claiming loss of consortium.
A medical review panel rendered an opinion in favor of Mrs. Benoit. A lawsuit was subsequently filed in district court. Dr. Archer filed a Peremptory Exception of Prescription, contending more than one year prior to filing her medical malpractice action, Pam Benoit and her husband knew or should have known the acts they complain he committed may have constituted malpractice. Specifically, Dr. Archer points to Pam Benoit's visit to Dr. Aretta Rathmell "in late 1993 or early 1994," and sessions she had in September and October of 1994 with Ruth Singletary, a social worker. The comments made during these visits, defendants urge were sufficient to inform plaintiffs that the treatment by Dr. Archer may have been improper. The trial court eventually maintained the exception of prescription, dismissing the plaintiffs' claim as untimely filed with the Patient's Compensation Fund.
Plaintiffs appealed contending the trial court erred in maintaining the exception of prescription "given that Appellant was first advised of the inappropriateness of Appellee's medical treatment on November 11, 1994 (the date she first consulted with Dr. Bombenek) and filed her complaint with the Louisiana Patient's Compensation Fund on November 13, 1995." Plaintiffs noted November 11, 1995 fell on a Saturday.
ANALYSIS
The prescriptive period applicable to medical malpractice actions is governed by La.R.S. 9:5628 which provides that such actions must be 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. In any event, even as to claims filed within one year from the date of such discovery, such claims must be filed, at the latest, within a period of three years from the date of the alleged act, omission or neglect. La.R.S. 9:5628.
The prescription issue presented, thus, requires a determination of when plaintiffs knew or should have known that the continued prescribing of Xanax to her by Dr. Archer was medically negligent. This court in Parker v. Dr. X, 97-841, p. 4 (La.App. 3 Cir. 12/10/97), 704 So.2d 373, 375, quoted the following language from Harlan v. Roberts, 565 So.2d 482, 486 (La.App
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