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Benoit v. Archer6/26/2002
f treatment, receives opinions from other physicians that the treatment being administered by the treating physician is inappropriate. To hold otherwise would impose a greater burden of medical knowledge on the patient than that possessed by the treating physician. Id., 618 So.2d at 41.
Defendants cite another third circuit case, Dufour v. Mayeux, 95-678 (La.App. 3 Cir. 11/2/95), 664 So.2d 577, writ denied, 95-2880 (La. 2/2/96), 666 So.2d 1101, as "clearly set[ting] forth the principals applicable here." In Dufour, the plaintiff alleged through the fault and negligence of her doctor she became wrongfully addicted to the prescription pain drugs Fiorinal and Fiorinal with codeine. The trial court maintained the doctor's exception of prescription. The trial court held the prescriptive period began to run on October 12, 1990, the date the doctor last saw plaintiff and last prescribed her Fiorinal. Plaintiff contended prescription should have commenced on the date upon which she first obtained the requisite knowledge of the doctor's alleged wrongdoing, November 7, 1990. We affirmed the trial court for the following reasons:
The plaintiffs are required to allege continuing action on the part of Dr. Mayeux and continuing damage resulting therefrom. The final act taken by Dr. Mayeux in his lengthy treatment history of Barbara was on October 12, 1990. Therefore, plaintiffs have failed to show that Dr. Mayeux's actions extended beyond October 12, 1990. We expressly decline to impose upon the physician an affirmative duty to inform his patient in writing that the physician-patient relationship has been terminated. Id., 664 So.2d at 584.
We note in the present case, Dr. Archer last saw Mrs. Benoit and prescribed her Xanax on November 14, 1994. Suit was filed on November 13, 1995. Therefore, under the reasoning of Dufour, the suit was timely filed. We are also satisfied the pleadings and deposition testimony in the record supports a finding that when Dr. Archer reissued Mrs. Benoit a prescription for Xanax on November 14, 1994, he owed her a continuing duty; and nothing in the record establishes in this instance that this duty ceased during the course of his treatment of her condition, or that his alleged negligent conduct ended prior to this date. The jurisprudence supports the legal conclusion that prescription did not begin to run against plaintiffs' claim until the date of her last visit, the date Dr. Archer issued the last Xanax prescription to treat her condition and the date his final act of malpractice occurred.
DECREE
For the foregoing reasons, the judgment of the trial court maintaining defendants' exception of prescription is reversed. All costs of this appeal are assessed against defendants.
REVERSED.
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