IN RE: MEDICAL REVIEW PANEL PROCEEDING FOR HOLLICE SPURLOCK, JR.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 781-602, DIVISION
"E" HONORABLE MICHAEL E. KIRBY, PRO TEMPORE, JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, HOLLICE SPURLOCK, JR. J.
Michael Daly, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER MEDICAL CENTER -
KENNER, LLC Dax C. Foster Brett M. Dupuy
composed of Judges Susan M. Chehardy, Robert A. Chaisson, and
Hans J. Liljeberg
J. LILJEBERG, JUDGE
medical malpractice action, plaintiff seeks review of the
trial court's judgment sustaining the defendant health
care provider's exception of prescription and dismissing
his medical review proceedings with prejudice. For the
following reasons, we vacate the trial court's judgment
and remand for further proceedings.
to the parties, on December 22, 2017, plaintiff, Hollice
Spurlock, Jr., filed a request for a medical review panel
with the Division of Administration alleging that defendant,
Ochsner Medical Center-Kenner, L.L.C. ("Ochsner"),
breached the standard of care during his treatment by failing
to properly cleanse his chemotherapy port, causing the port
to become clogged and resulting in blood clots. In his
request, Mr. Spurlock contends that the date of discovery of
the alleged malpractice was December 26, 2016.
March 14, 2018, Ochsner filed a "Petition to Institute
Discovery," pursuant to La. R.S. 40:1231.8, et
seq., requesting to use the processes of the court for
the purpose of obtaining evidence for presentation before the
medical review panel. Thereafter, on May 18, 2018, Ochsner
filed an exception of prescription, asserting that Mr.
Spurlock's claims against it were prescribed pursuant to
La. R.S. 9:5628(A), because his request for a medical review
panel was filed more than one year after the date Mr.
Spurlock knew or should have known of the alleged
malpractice. Ochsner argued that although Mr. Spurlock stated
in his request for a medical review panel that his port
malfunctioned and was removed in December of 2016, medical
records show that this actually occurred in December of 2015.
Spurlock filed a memorandum in opposition to the exception,
asserting for the first time that he did not discover the
alleged malpractice until January of 2017 when the effects of
chemotherapy were over and he discussed his symptoms with
fellow cancer patients. He then filed a supplemental
opposition memorandum, attaching an affidavit in which Mr.
Spurlock indicated that his doctors told him the port
malfunction and resulting blood clots were "normal
complications" and that he did not discover the
malpractice until January of 2017 when he spoke with other
cancer patients at a meeting.
trial court held a hearing on the exception of prescription
on August 22, 2018, at which the parties presented argument
only. At the conclusion of the hearing, the trial court
granted the exception of prescription, finding that the
"documentary evidence establishes that a reasonable
person should have known" of the possibility of
malpractice when he was told that the port malfunctioned and
had to be removed. On September 10, 2018, the trial court
signed a written judgment dismissing the medical review
proceedings with prejudice. Mr. Spurlock appeals.
appeal, Mr. Spurlock asserts that the trial court erred by
granting Ochsner's exception of prescription. He asserts
that a reasonable person would not have known of the
malpractice when the chemotherapy port malfunctioned and had
to be removed, because his doctors indicated that this was a
known complication. He asserts that he did not know of the
alleged malpractice until he discussed his symptoms with
fellow cancer patients in January of 2017 and that the
doctrine of contra non valentum should apply, making
his request for a medical review panel timely.
responds that Mr. Spurlock indicated in his request for a
medical review panel that he learned of the alleged
malpractice when the port was removed due to malfunction and
blood clots, and the medical records demonstrate that this
occurred in December of 2015. It argues that Mr.
Spurlock's claims have clearly prescribed and that it was
"self-serving" for him to change the date of
discovery to January of ...