In May of 2013, Mario Hurst went to the emergency room at the University Medical Center in New Orleans. Mr. Hurst’s symptoms included a bad cough, bloody phlegm, loss of appetite, bloody stool, and pain in the left section of his chest. He was seen by two doctors, Dr. Heather Murphy Lavoie and Dr. Thomas Clay Crouch. Dr. Lavoie initially saw Mr. Hurst but sent him to Dr. Crouch, who performed several tests. Along with routine testing, Dr. Crouch ordered a chest x-ray, blood work, urine and stool samples, and an EKG. As a result of the testing, Mr. Hurst was diagnosed with an upper respiratory infection and instructed to see his regular physician for a follow up appointment.
After his symptoms continued for two years, on July 13, 2015, Mr. Hurst brought a lawsuit for medical malpractice against Dr. Lavoie. Dr. Lavoie responded by invoking an exception of prescription because there is a one year deadline on medical malpractice cases. Since the initial visit was May, 21, 2013 and the lawsuit was not filed until July, 13, 2015, the Trial Court agreed and ruled in favor of Dr. Lavoie. Mr. Hurst then appealed.
In order to overturn a verdict in a lawsuit based on a grant of the peremptory exception of prescription, the Appellate Court must find that the decision was unreasonable. Marino v. Tenet Healthsystem Med. Ctr., 26 So.3d 297, 300 (La. Ct. App. 2009). The two prescriptive period start dates are either one year from the date of the alleged act, omission, or neglect, or one year from the date of discovery. La. R.S. 9:5628(A). The defendant party invoking the peremptory exception of prescription bears the burden of proof. Ferguson v. Sugar, 988 So.2d 816, 824 (La. Ct. App. 2008). But, if there is doubt whether the lawsuit was brought within the one year deadline, the burden shifts to the plaintiff to show that the deadline has not passed. This prescription deadline begins when plaintiffs have either actual or constructive knowledge that they are a potential victim of a tort. Campo v. Correa, 828 So.2d 502, 509 (La. 2002).
The Appellate Court agreed with the Trial Court’s decision to side with Dr. Lavoie. Mr. Hurst’s complaint claims that he did not discover his injuries due to the alleged medical malpractice until January 1, 2015. This date was eighteen months later than his initial doctor’s visit to Dr. Lavoie. Because of this, the burden was on Mr. Hurst to prove how exactly he was unaware of potential medical malpractice until January 1, 2015. When the Appellate Court looked toward Mr. Hurst’s testimony and court filings, it found Mr. Hurst provided no real evidence why it took so long for him to have knowledge of medical malpractice. The Appellate Court pointed to the long delay between the first visit and the filing of the lawsuit to prove that at some point, a reasonable person would have had constructive knowledge that wronged some way in his initial visit with Dr. Lavoie.
When an injured plaintiff brings a lawsuit clearly out of the one year deadline for medical malpractice claims, the burden is on the plaintiff to show the reasons why they waited so long. If they are to be successful, they must prove that they did not have actual or constructive knowledge that they were harmed. This is a hard thing to prove when there is an obvious injury or ailment and here, Mr. Hurst did not have an explanation the court believed.
Additional Sources: IN RE: MEDICAL REVIEW PANEL OF MARIO HURST
Written by Berniard Law Firm Blog Writer: John Trepel
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