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In re Medical Review Panel Proceeding of Hickman

Court of Appeal of Louisiana, Third Circuit

February 4, 2015

IN RE: MEDICAL REVIEW PANEL PROCEEDING OF DONNA M. HICKMAN

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 247,430. HONORABLE HARRY F. RANDOW, DISTRICT JUDGE.

James L. Carroll, Mixon & Carroll, PLC, Columbia, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Donna M. Hickman.

Victor H. Sooter, Sooter & Associates, Alexandria, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: Angela H. Moreau, M.D.

Eugene J. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: Paul Smith, M.D.

Matthew J. Ungarino, Ungarino & Eckert L.L.C., Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: Christus St. Frances Cabrini Hospital.

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.

OPINION

Page 188

[14-779 La.App. 3 Cir. 1] CONERY, Judge.

Donna Hickman (Ms. Hickman) appeals the trial court's judgment which granted a peremptory exception of prescription and dismissed her medical malpractice action against Christus St. Francis Cabrini Hospital (Cabrini), Dr. Paul Smith, and Dr. Angela H. Moreau (hereafter sometimes referred to as Health Care Providers). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Hickman's was injured in a one-car rollover accident which occurred on January 21, 2012. She was taken to the Emergency Room of Cabrini, where she was examined by the Emergency Room physician, Dr. Moreau. Dr. Moreau ordered a CT[1] scan of her face, head, abdomen, and back to determine if she had any internal injuries or broken bones. The results of the CT scans were reviewed by Dr. Smith, the radiologist at Cabrini, who noted no evidence of degenerative disease or fracture. Ms. Hickman complained of pain in the lower mid-section of her back to Dr. Moreau and was released after approximately four hours with medication for pain and sutures in a head wound. Dr. Moreau recommended that she follow up with Dr. Amy Griffin, Ms. Hickman's primary care physician, for further evaluation. Ms. Hickman had no subsequent contact with Dr. Moreau or Dr. Smith after her treatment in the emergency room at Cabrini.

On January 31, 2012, ten days after the accident, Ms. Hickman, as instructed by Dr. Moreau, followed up with Nurse Practitioner Tracy Lyons at the Griffin Family Medicine Clinic (Griffin Clinic), the office of her primary care physician, Dr. Amy Griffin. Ms. Hickman had her sutures

Page 189

removed and discussed with Nurse [14-779 La.App. 3 Cir. 2] Practitioner Lyons " how bad her back was hurting." [2] Based on their discussion, Nurse Practitioner Lyons wrote a letter stating that Ms. Hickman " needed to have an MRI done." Ms. Hickman indicated when questioned in her deposition that her back pain was, " Severe. Very painful." Due to the severity of Ms. Hickman's pain, Nurse Practitioner Lyons prescribed additional pain medication.

At the January 31, 2012 visit, Nurse Practitioner Lyons and Ms. Hickman discussed the necessity for an MRI.[3] Ms. Hickman testified in her deposition that she understood that the purpose of the MRI was, " To check that area of my back to see if there was a problem." Additionally, when asked about the MRI in her deposition, " To see if something had been missed by --Dr. Moreau; is that correct[,]" Ms. Hickman responded, " Right, or -- right."

On February 27, 2012, Ms. Hickman had an orthopedic consult with Dr. David Bernard at the Huey P. Long Medical Center, and Dr. Bernard ordered an MRI for Ms. Hickman that same day. On February 27, 2012, the radiologist, Dr. Joe Rankin, called Ms. Hickman after he had read her MRI. He told her she had a compression fracture at L-1 and recommended that she see an orthopedist. Ms. Hickman testified that Dr. Rankin " first [asked what] I did. I told him. And he said, well, you've got a problem at this location and he said you need to - to get in to see a doctor. He said I don't know what they will -- what route they'll take, but you need to get in to see a doctor."

Ms. Hickman called Nurse Practitioner Lyons and told her the MRI revealed [14-779 La.App. 3 Cir. 3] a compression fracture at L-1. Ms. Hickman faxed a copy of the MRI to the Griffin Clinic, which was forwarded, on March 5, 2012, by fax and received by Mid-State Orthopedic and Sports Medicine Center (Mid-State). Ms. Hickman had a medical history with Mid-State, having received treatment from her college friend, Dr. Mark Dodson, for prior injuries.

After prevailing on Dr. Dodson for assistance, due to her lack of medical insurance and the possibility she could not be seen by an orthopedist until October, on April 12, 2012, Ms. Hickman was seen by Dr. Dodson at the Louisiana State University Health Sciences Center (LSU-HSC) in Shreveport, Louisiana. Dr. Dodson reviewed the MRI taken on February 27, 2012, and the January 21, 2012 CT scan from Cabrini. Dr. Dodson then confirmed Dr. Rankin's diagnosis of a compression fracture at L-1 and arranged for Ms. Hickman to be seen by Dr. Richard McCall, an orthopedist at LSU-HSC. On August 30, 2012, Dr. McCall performed the surgical procedure necessary to address Ms. Hickman's compression fracture at L-1.

On April 11, 2013, Ms. Hickman filed a petition for medical malpractice against Dr. Moreau, Dr. Smith, and Cabrini with the Patients Compensation Fund, (PCF). Her petition identified January 21, 2012 as the date of her negligent treatment at Cabrini by Drs. Moreau and Smith. The

Page 190

petition also stated that April 12, 2012, the date of her appointment with Dr. Dodson, was when " Ms. Hickman was informed for the first time that she had a significant compression fracture of her lumbar spine."

The Health Care Providers filed a peremptory exception urging the objection of prescription in the judicial district court, which was set for hearing on April 28, 2014. The trial court, for reasons stated on the record, granted the peremptory [14-779 La.App. 3 Cir. 4] exception of prescription filed on behalf of the Health Care Providers on the basis that prescription began to run on February 27, 2012 and not April 12, 2012. February 27, 2012 was the date Ms. Hickman allegedly first discovered that she had a compression fracture at L-1 that purportedly had not been diagnosed and treated by Drs. Moreau and Smith at Cabrini. The trial court then dismissed with prejudice Ms. Hickman's claim for medical malpractice against all three Health Care Providers in a judgment dated May 8, 2014, which Ms. Hickman now timely appeals.

ASSIGNMENT OF ERROR

On appeal, Ms. Hickman alleges that " The Trial Court erred in finding that the date of prescription began to run on February 27, 2012 instead of the date that HICKMAN ...


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