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In re Medical Review Panel Proceeding for Spurlock

Court of Appeals of Louisiana, Fifth Circuit

April 24, 2019

IN RE: MEDICAL REVIEW PANEL PROCEEDING FOR HOLLICE SPURLOCK, JR.

          ON 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 PRESIDING

          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

          Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

          HANS J. LILJEBERG, JUDGE

         In this 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.

         PROCEDURAL HISTORY

         According 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.

         On 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.

         Mr. 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.

         The 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.

         DISCUSSION

         On 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.

         Ochsner 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 ...


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