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Kirby v. Field9/23/2005
BEFORE: CARTER, C.J., DOWNING AND GAIDRY, JJ.
Carter, J of Concurr with reason. Downing, J. Concurr with reasons.
The plaintiff-appellant, Troy Kirby, appeals a judgment sustaining peremptory exceptions of no cause of action and prescription and a dilatory exception of prematurity, and dismissing his medical malpractice action. We affirm the judgment, but amend it in certain procedural respects.
FACTS AND PROCEDURAL HISTORY
Mr. Kirby was a patient of the defendant-appellee, Samuel E. Field, Jr., M.D. Dr. Field had surgically implanted a Mediport catheter in Mr. Kirby's chest to allow the administration of chemotherapy medication. In the fall of 1997, Dr. Field performed an outpatient procedure to remove the catheter.
In December 2003, a chest x-ray film revealed the presence of a 5 to 6 centimeter remnant of the catheter in Mr. Kirby's right pulmonary artery. By letter dated December 12, 2003, Mr. Kirby, through counsel, filed a request for a medical review panel, asserting a medical malpractice claim against Dr. Field. Mr. Kirby subsequently instituted the present civil action against Dr. Field on January 22, 2004, by filing a petition for damages. In that petition, Mr. Kirby alleged that " n the fall of 1998," Dr. Field failed to remove the Mediport catheter in a proper manner.
On February 10, 2004, Dr. Field filed combined dilatory and peremptory exceptions, raising the objections of prescription, prematurity, and no cause of action. Copies of Mr. Kirby's patient records were attached as exhibits to the exceptions. An affidavit executed by Dr. Field was also attached as an exhibit. In his peremptory exception of prescription, Dr. Field asserted that Mr. Kirby's claim was prescribed on its face, being filed more than five years after the actual date of the alleged negligent procedure, which was performed on September 25, 1997. The exceptions were originally assigned for hearing on March 29, 2004, but the hearing was reassigned for May 17, 2004.
On April 30, 2004, Mr. Kirby filed a supplemental and amended petition, amending the date of the alleged malpractice to "the fall of 1997." He also added supplemental allegations that Dr. Field misrepresented the outpatient procedure as successful and concealed from him the fact that the catheter had not been entirely removed, and that such conduct constituted "fraud and/or ill practice."
Dr. Field did not answer the allegations of the petition, as amended, prior to the hearing on his exceptions. At the hearing, counsel for Dr. Field represented to the court that the dilatory exception of prematurity and the peremptory exception's objection of no cause of action were "behind us" (apparently resolved between the parties), leaving only the prescription issue to be determined, a statement uncontested by Mr. Kirby's counsel. No testimony or evidence was offered by either party. After reviewing the memoranda and hearing the argument of counsel, the trial court ruled in open court that the peremptory exception of no cause of action was moot by virtue of the allegations of the supplemental and amended petition and that the peremptory exception of prescription was sustained.
On May 27, 2004, the trial court signed a judgment sustaining both the dilatory exception of prematurity and the peremptory exceptions, and dismissing Mr. Kirby's cause of action with prejudice. Mr. Kirby now appeals.
ASSIGNMENTS OF ERROR
Mr. Kirby sets forth the following assignments of error on the part of the trial court:
1. The trial court erred in finding that La. R.S. 9:5628 is a statute of peremption rather than prescription.
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