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Heard v. Morehouse Parish Health Unit12/14/2005
Before BROWN, STEWART and PEATROSS, JJ.
Veronica Heard and Rodney Williams, individually and on behalf of the minor child, Dishean Heard (collectively "plaintiffs") appeal the trial court's grant of prescription in favor of Morehouse Parish Health Unit, Louisiana State University Medical Center, and Louisiana Risk Management Insurance Company (collectively "defendants"). Finding no merit in the plaintiffs' claims, we affirm the judgment of the trial court.
FACTS
This medical malpractice case arose from the prenatal treatment of Veronica Heard at the Morehouse Parish Health Unit and the November 12, 2002, delivery of her son, Dishean Heard, at the E.A. Conway Hospital in Monroe. Veronica and Rodney Williams, Dishean's father, alleged that the staff of the aforementioned facilities failed to provide adequate prenatal care and information, failed to provide proper management of Heard's post term pregnancy of four and a half weeks, failed to ameliorate the risks of Heard's post term pregnancy in light of her family history of diabetes, failed to use appropriate delivery techniques, and applied excessive force during the delivery which resulted in birth complications and injuries to Veronica and Dishean.
Plaintiffs' attorneys received a claim analysis from Quality Care Litigation Support Services that identified alleged acts of malpractice on September 8, 2003. Plaintiffs filed suit on November 12, 2003, in the district court without seeking review of their complaint by a medical review panel. The State responded with an exception of prematurity on April 5, 2004. The plaintiffs filed a request for a medical review panel on June 2, 2004, that was later dismissed because of plaintiffs' failure to pay the requisite filing fee.
On June 17, 2004, the defendants filed an exception of prescription which was granted along with the exception of prematurity on December 28, 2004. This appeal ensued.
DISCUSSION
Exception of Prescription
Plaintiffs contend that a straightforward reading of La. R.S. 9:5628 clearly shows that the statute sets forth two prescriptive limits for bringing a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission, or neglect to bring such claims. In re Med. Review Panel of Lafayette, 03-457 (La. App. 3d Cir. 10/15/03), 860 So. 2d 86.
The plaintiffs incorrectly state that the running of prescription should not run from Dishean's birth on November 12, 2002, but instead should run from September 8, 2003, when plaintiffs' counsel received an unsigned "case work up" from Quality Care Litigation Support Services identifying alleged acts of malpractice by the health unit and hospital. If prescription is measured from this point, then plaintiffs' September 8, 2004, request for a medical review panel would be timely. However, the trial court correctly found that plaintiffs did not meet the burden of proof of showing that they did not have constructive knowledge of their claim before they received the report from Quality Care.
The trial court determined that "the complications associated with the delivery complained of by plaintiff in her petition are of a nature and kind sufficient to trigger notice and start the accrual of prescription." The court further found that in the absence of any evidence of a coverup, the defendants had met their burden of proof to demonstrate that the plaintiffs claim had prescribed. See Bailey v. Haynes, 37,038 (La. App. 2d Cir. 4/9/03), 843 So. 2d 584, writ denied, 2003-1209 (La. 10/10/03), 856 So. 2d 1207 and Cruse v. L
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