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Jimerson v. Majors

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

KIMBERLY JIMERSON Plaintiff-Appellant
v.
JAKE MAJORS, M.D. Defendant-Appellee

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 580539 Honorable Michael A. Pitman, Judge

          SUSAN ELIZABETH HAMM Counsel for Appellant.

          CRAIG JAMES SABOTTKE Counsel for Appellee.

          Before DREW, LOLLEY and STONE, JJ.

          LOLLEY, J.

         In this medical malpractice case, plaintiff, Kimberly Jimerson, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein the trial court sustained a peremptory exception of prescription in favor of defendant, Jake Majors, M.D. For the following reasons we affirm the judgment of the trial court.

         FACTS

         Kimberly Jimerson was under the care of Dr. Jake Majors for obstetrics and gynecology treatment since 2005. She was diagnosed with endometriosis with biopsy-proven pathology obtained by laparoscopy on August 8, 2005. Dr. Majors referred Jimerson to an infertility specialist in 2005 due to problems with oligomennorrhea (i.e., infrequent menstruation), endometriosis, pelvic pain, and desired conception. Having had two successful Cesarean births, Jimerson elected to undergo a bilateral tubal sterilization, which prevents future pregnancy by blocking the fallopian tubes. The procedure was performed May 22, 2007. Jimerson continued to complain to Dr. Majors of pelvic pain, even after her sterilization surgery.

         On August 18, 2008, after presenting in the emergency room, Jimerson, then 24 years old, was admitted to the hospital for pelvic pain. According to Jimerson she signed a consent form for surgery while in pain and under the influence of pain medication. The next day, Dr. Majors performed a hysterectomy including removal of the fallopian tubes and ovaries. Post-surgery, Jimerson developed complications, specifically, bladder issues. Jimerson continued treatment with Dr. Majors until October 13, 2009, but in an attempt to determine the cause of her pelvic pain, she was also treated by numerous other doctors and specialists during that time.

         On November 10, 2009, Jimerson had an office visit with Dr. Joseph Pineda, another specialist in obstetrics and gynecology. Jimerson claims that during this office visit Dr. Pineda informed her, in his opinion, it was "negligent for Dr. Majors to perform a hysterectomy on a 24-year-old woman." On September 2, 2010, more than two years after the hysterectomy was performed, Jimerson filed a complaint against Dr. Majors requesting a medical review panel ("MRP") to review her claim. Dr. Majors filed a peremptory exception of prescription in the trial court, which declined to rule on the exception while the matter was pending before the MRP. Jimerson failed to submit the requested materials to the MRP for over three years-missing six reset deadlines. In May 2014, Dr. Majors submitted his materials to the MRP in order to proceed with the matter.

         Ultimately, the MRP issued a unanimous opinion that Dr. Majors had properly obtained informed consent from Jimerson for the hysterectomy and, further, had not deviated from the standard of care in his treatment of her. Subsequently, Jimerson filed a petition for damages in the trial court. Dr. Majors requested his exception of prescription be reset for hearing, and in the alternative, summary judgment. After a hearing, the trial court granted the exception of prescription, dismissing Jimerson's claim with prejudice. She now appeals the judgment of the trial court.

         DISCUSSION

         Jimerson sets forth five assignments of error all related to the granting of the exception of prescription. Jimerson generally argues the trial court erred in granting the exception of prescription and dismissing her petition for damages. More specifically, she argues that the trial court erred in not finding the continuing treatment doctrine applied, not finding the discovery rule applied to suspend prescription and not referring the exception to the merits of the case. Here, the alleged malpractice is that Dr. Majors performed the surgery without first attempting more conservative measures. Jimerson argues that she did not consent to the surgery, specifically because Demerol, a pain medication, was administered to her one hour before she signed an informed consent form, which, consequently, she does not remember signing. Jimerson claims she did not discover that the 2008 hysterectomy should not have been performed by Dr. Majors until November 10, 2009, when Dr. Pineda mentioned this to her during an office visit. She also claims that continued post-surgery treatment by Dr. Majors suspended prescription. We disagree.

         The prescriptive period for medical malpractice is set forth in La. R.S. ...


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