FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-03203,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC
COUNSEL FOR MS. WILKERSON/APPELLANT.
M. Dicke LEWIS, BRISBOIS, BISGAARD & SMITH, L.L.P.
COUNSEL FOR DEFENDANT/APPELLEE.
composed of Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Rosemary Ledet.
L. BELSOME JUDGE.
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
of the Case
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.
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.
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. 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.
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, 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
Period for a Medical Malpractice Claim
the movant bears the burden of proof at trial of the
peremptory exception of prescription. "However, if
prescription is evident on the face of the pleadings, the
burden shifts to the plaintiff to show the action has not
R.S. 9:5628 sets forth the prescriptive period within which a
party must bring a medical malpractice claim. 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." 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."
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 ...