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Ainsworth v. Bulloch12/22/1999
As amended May 8, 2000.
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
Plaintiff, Bobby Ray Ainsworth, has appealed the trial court's dismissal of his medical malpractice action against defendants, Dr. Brian Bulloch and St. Francis Medical Center, as untimely. We affirm.
Factual and Procedural Background
Plaintiff, a 41-year-old-man, injured his back in a job -related accident in 1995. Previously, in 1990, he had a decompressive laminectomy and diskectomy at the L4-L5 level.
On the morning of May 15, 1996, Dr. Brian Bulloch, an orthopaedic surgeon, performed a diskectomy and fusion on plaintiff at the L4-L5 level. Immediately after the operation, plaintiff could not feel or move his feet or control his bowel, bladder and sexual functions. Dr. Bulloch diagnosed plaintiff with post-operative cauda equina syndrome and immediately conducted a second operation. After the second procedure, plaintiff regained feeling and control in his feet but remained without control of his bowel, bladder and sexual functions. Dr. Bulloch remained optimistic and informed plaintiff that his condition could improve over time.
On June 7, 1996, plaintiff underwent a third (second remedial) operation performed by Dr. Jose Bermudez, a neurosurgeon, who was assisted by Dr. Bulloch. After the third procedure, plaintiff noticed no improvement. However, plaintiff was again informed that his condition could improve over time.
On August 6, 1996, Dr. Bulloch informed plaintiff that he had reached maximum medical improvement ("MMI") and that he was 68% disabled. On September 5, 1996, Dr. Bermudez informed plaintiff that he was 100% disabled.
On June 19, 1997, plaintiff filed a Request for Medical Review Panel. On July 29, 1998, defendants filed an exception of prescription. The trial court initially denied the exception; however, after it was shown that counsel for Dr. Bulloch never received notice of the hearing date, the trial court considered the parties' arguments and granted the exception. Plaintiff appeals this ruling.
Discussion
Under La.R.S. 9:5628, a medical malpractice action shall be brought 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; however, in all events such claims shall be filed at least within a period of three years from the date of the alleged act, omission or neglect.
Plaintiff argues that prescription was suspended until he was told that he had reached maximum medical improvement. Under the specific circumstances of this case, we cannot agree.
Contra non valentem is a judicially-created exception to the general rule of prescription. Fontenot v. ABC Ins. Co., 95-1707 (La. 06/07/96), 974 So.2d 960; Taylor v. Giddens, 618 So.2d 834 (La.1993); Rajnowski v. St. Patrick's Hospital, 564 So.2d 671 (La.1990). Contra non valentem applies in four situations:
(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
(2) Where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
(4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Fontenot, supra; Rajnowski, supra.
The L
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