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Wilkerson v. Dunham

Court of Appeals of Louisiana, Fourth Circuit

May 3, 2017

KELLI WILKERSON
v.
DENARDO D. DUNHAM, DPM, AND ABC INSURANCE COMPANY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-03203, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          John D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC COUNSEL FOR MS. WILKERSON/APPELLANT.

          Karen M. Dicke LEWIS, BRISBOIS, BISGAARD & SMITH, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet.

          ROLAND L. BELSOME JUDGE.

         In this medical malpractice case, Appellant, Kelli Wilkerson, appeals the judgment of the trial court, which sustained the exception of prescription filed by Dr. Denardo Dunham and dismissed Ms. Wilkerson's claims with prejudice. For the reasons set forth herein, the trial court's judgment is affirmed.

         Statement of the Case

         Ms. Wilkerson began treatment with Dr. Denardo Dunham in 2006 for a bunion on her right foot. Dr. Dunham performed three bunionectomy surgeries on Ms. Wilkerson between 2008 and 2010. Ms. Wilkerson continued to experience pain in her right foot following the surgeries. She scheduled appointments with a number of other podiatrists, who could not or would not treat her. She contacted Dr. Dunham again; however, due to a leave of absence, he was unavailable to treat her. Dr. Dunham referred Ms. Wilkerson to Dr. Darren Vigee.

         Ms. Wilkerson first visited Dr. Vigee in July 2011. At the appointment, Dr. Vigee took x-rays of Ms. Wilkerson's right foot and advised her that too much bone had been shaved away during the bunionectomy surgeries. In 2014, Dr. Vigee again took x-rays of Ms. Wilkerson's foot and reported similar findings. Dr. Vigee advised Ms. Wilkerson to follow up with Dr. Dunham since he performed the surgeries. Dr. Dunham informed her that the pain she was experiencing was a known complication with her procedure that would eventually heal, but advised her that another surgery could correct the complications she was having. He referred her to an orthopedic surgeon who performed corrective surgery.

         On October 23, 2014, Ms. Wilkerson filed a medical malpractice complaint before the Patient Compensation Fund ("PCF") against Dr. Vigee. She amended the complaint to substitute Dr. Dunham as defendant on February 12, 2015, and amended her complaint again on March 5, 2015.[1] Ms. Wilkerson filed suit in Civil District Court against Dr. Dunham on April 7, 2015, prior to the PCF issuing an opinion. She voluntarily dismissed Dr. Vigee from the PCF complaint on May 4, 2015.

         Dr. Dunham filed an exception of prescription, requesting that all claims be dismissed as untimely. The court granted the exception and entered judgment, dismissing all claims with prejudice. The medical review panel was subsequently dissolved and the claim was dismissed from the PCF. This appeal followed.

         On appeal, Ms. Wilkerson claims that the district court erred in sustaining Dr. Dunham's exception of prescription on two grounds. First, she argues that she had an ongoing doctor-patient relationship and/or ongoing treatment with Dr. Dunham, which suspended the prescriptive period applicable to her claim. Second, she argues that she did not discover that she had a malpractice claim against Dr. Dunham until June 2014, and thus a year had not passed between her obtaining knowledge of a cause of action arising and her filing the malpractice claim.

         Prescriptive Period for a Medical Malpractice Claim

         Ordinarily, the movant bears the burden of proof at trial of the peremptory exception of prescription.[2] "However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed."[3]

         La. R.S. 9:5628 sets forth the prescriptive period within which a party must bring a medical malpractice claim.[4] It is a "hybrid statute, providing both a one-year prescriptive period, including an incorporation of the discovery rule, and a three-year repose period; the latter repose rule acts to cut off the discovery rule incorporated into the former prescriptive period."[5] The statute "not only limits the time following discovery during which the plaintiff must institute his action, but also sets an outer or overall limitation, one based on the length of the period following the negligent act, beyond which the action is barred, regardless of subsequent discovery."[6]

         In Campo v. Correa, the Louisiana Supreme Court made the following statement regarding prescription as to a medical malpractice claim:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. . . . Nevertheless, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. . . . The ...

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