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Poullard v. Venable2/8/2005
In this medical malpractice case, the plaintiff, John Poullard, appeals a judgment in favor of the defendants, Louisiana State University Health Sciences Center and Drs. Dennis Venable, Brett Carver, Chad Brekelbaum and Keith Waguespack. The district court sustained the defendants' peremptory exception of prescription. For the following reasons, we reverse and remand.
FACTS
On April 25, 2003, John Poullard, an inmate at the David Wade Correctional Center, filed a tort action against the defendants in connection with the treatment he received for chronic prostatitis at the Louisiana State University Health Sciences Center Urology Clinic in Shreveport, Louisiana. The following chronology of alleged events is taken from Poullard's petition:
1. On May 25, 2001, Poullard tested positive for chronic prostatitis at LSU Health Science Center; he returned for a follow-up appointment on June 22, 2001.
2. On April 5, 2002, he returned to LSU Health Science Center and was advised that continuing antibiotics from a previous appointment would not be appropriate because the antibiotics had been unsuccessful.
3. On July 19, 2002, he again returned to LSU Health Science Center and again was advised that his condition was unresponsive to antibiotics; he was given a one-year follow-up appointment to return to the clinic.
Based on these events, Poullard contends the defendants had full knowledge that antibiotics were unsuccessful in treating his condition, but failed to provide other treatment for him. Poullard alleges both negligence and intentional tort in this regard, and asserts that as a result he has suffered continuous pain. In July 2003, Poullard filed a supplemental petition adding Dr. Keith Waguespack as a defendant and alleging that "from April-5-2002 July-19-2002 until present date" antibiotics were unsuccessful in treating Poullard's prostatitis. He also alleged that Dr. Waguespack did not provide further appropriate treatment, but talked to Poullard with a "bad attitude" and scheduled a one-year follow-up appointment.
In September 2003, the defendants filed a peremptory exception of prescription asserting that the suit arose from care received by Poullard on April 5, 2002. According to the defendants, at some point after being diagnosed with chronic prostatitis, Poullard was prescribed antibiotics to treat his condition. Defendants noted Poullard's assertions that on April 5, 2002, he was advised that continuing the antibiotics would not be appropriate, that he continued to suffer with chronic prostatitis because of the alleged lack of proper treatment, and that he filed suit against the defendants on April 25, 2003.
In the peremptory exception of prescription, the defendants took the position that Poullard's claim against them had prescribed because his suit was filed more than one year after April 5, 2002, when he became aware of the alleged ineffectiveness of the antibiotic treatment. The exception also refers to another lawsuit with very similar factual allegations; however, no evidence about the other suit was ever placed before the court.
Neither the defendants' exception of prescription nor their memorandum in support mention the claims in Poullard's petition concerning the July 19, 2002 visit to the LSU Health Sciences Center where Poullard allegedly was again informed that his prostatitis was unresponsive to antibiotics, and where he allegedly was given a follow-up appointment to return to the clinic in one year. However, in opposition to the exception of prescription, Poullard asserted that he was alleging a continuing tort for breach of care from April 5, 2002 until April 26, 2003 and cont
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