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In re Evans6/8/2005
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and J. David Painter, Judges.
AFFIRMED.
COOKS J. DISSENTS AND ASSIGNS WRITTEN REASONS
Plaintiff, Ella Evans, filed a request for the formation of a Medical Review Panel with the Division of Administration, relative to her claims against Dr. Alberto Palmiano. Dr. Palmiano filed an exception of prescription in the Sixteenth Judicial District Court. The trial court granted said exception and Plaintiff appealed. Finding no manifest error in the factual determinations of the trial court, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts of this case are not in dispute. On September 16, 2002, Ella Evans was admitted to the Intensive Care Unit at Iberia General Hospital after being found unconscious by her boyfriend. Dr. Alberto Palmiano, a general practitioner, was consulted the same day. While hospitalized, Ms. Evans, who was diabetic, developed severe bed sores, which were described as stage II as early as September 20, 2002, due to the failure of hospital personnel to turn her properly while she was unconscious. On September 25, 2002, Ms. Evans was discharged by Dr. Palmiano. However, on October 9, 2002, Ms. Evans was admitted to University Medical Center in Lafayette, Louisiana with infected bed sores.
Plaintiff admits that her claim against Dr. Palmiano was erroneously filed with the Patient's Compensation Fund (PCF), rather than the Division of Administration, on September 25, 2003. Plaintiff's letter request for the formation of a Medical Review Panel was returned to her and ultimately filed with the Division of Administration on October 7, 2003.
In her request for a Medical Review Panel, Plaintiff alleged that Dr. Palmiano discharged her with bed sores that failed to heal and became infected. She further alleged that she should not have been discharged but, if discharge was necessary, she should have been given follow-up visits or some other care instructions.
Defendant filed a Petition for the Institution of Discovery in the district court and propounded interrogatories to Plaintiff. In response to an interrogatory asking when she became aware that the bed sores were infected, Plaintiff responded that she was aware that the bed sores were infected upon her discharge from the hospital on September 25, 2002. Based on this response, Defendant filed an Exception of Prescription. Plaintiff opposed this exception and filed her affidavit in which she averred that she attempted to care for her bed sores after her discharge by Dr. Palmiano but was unsuccessful in so doing and was admitted to a different hospital on October 9, 2002, at which time she was informed that she should have received specific aftercare instructions including a return appointment because of her diabetic condition. According to Plaintiff, her claim would not prescribe until October 9, 2003. The trial court disagreed and made a factual finding that she was aware that there was a problem with her discharge on September 25, 2002 and prescription began to run at that time. Accordingly, the trial court entered judgment granting the Defendant's Exception of Prescription and dismissing Plaintiff's PCF Complaint Number 2003-1729. Plaintiff now appeals asserting that she did not become aware of Dr. Palmiano's alleged substandard treatment of her until her re-admission to the hospital on October 9, 2002.
DISCUSSION
Louisiana Revised Statute 9:5628 governs prescription in a medical malpractice action. This statute provides, in pertinent part, as follows:
A. No action for damages for injury or death against any physician . . .,
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