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Poullard v. Venable2/8/2005
f the duty to right a wrong and make the plaintiff whole cannot be a continuing wrong which suspends the running of prescription. In re Medical Review Panel for Claim of Moses, 2000-2643 (La. 5/25/01), 788 So.2d 1173.
Thus, in the instant case, because Poullard has not asserted a continuing course of harmful treatment, he has failed to demonstrate a continuing tort.
In their brief, the defendants focus on Poullard's April 5, 2002 visit in arguing that Poullard's complaints of malpractice are "all the same cause of action," and that Poullard simply reworded his assertions in an attempt "to extend the prescriptive period." We disagree. Although Poullard's petition shows that he was aware on April 5, 2002 that the previous antibiotic therapy was unsuccessful and that other treatment for his chronic prostatitis was not provided at that time, the record also shows that medication was prescribed for Pollard's symptoms and a follow-up appointment was scheduled for three months later. Thus, when Pollard returned for his follow-up visit in July 2002, he reasonably could have expected that defendants would offer some alternative treatment, different medication or further testing in an attempt to address his symptoms.
However, Poullard alleges in his petition that when he returned to the LSU urology clinic on July 19, 2002, Dr. Waguespack breached the standard of care by his failure to provide any alternative treatment, to prescribe additional medication or to schedule a more prompt follow-up appointment, despite the diagnosis of perineal pain, testalgia and chronic prostatitis. Consequently, Poullard's malpractice claim, filed within one year from the date of defendants' alleged omissions during the July 19, 2002 examination, was not prescribed on the face of the petition. Based upon this record, we must conclude that the district court erred in granting the defendants' exception of prescription.
CONCLUSION
For the foregoing reasons, the district court's judgment granting the exception of prescription is hereby reversed and the case is remanded for further proceedings. Costs of this appeal are assessed to the appellees, Louisiana State University Health Sciences Center and Drs. Dennis Venable, Brett Carver, Chad Brekelbaum and Keith Waguespack.
REVERSED AND REMANDED.
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