In Re Ella Evans

Key Facts

Issues

• The court needed to determine when plaintiff Ella Evans acquired actual or constructive knowledge of the alleged malpractice by Dr. Palmiano regarding her discharge from Iberia General Hospital on September 25, 2002 without proper aftercare instructions. The issue centered on whether prescription began to run from the discharge date or from her October 9, 2002 re-admission to University Medical Center when she was informed she should have received aftercare instructions. Additionally, the court addressed whether the doctrine of contra non valentem applies to interrupt the running of prescription, and whether the claim filed October 7, 2003 with the Division of Administration was timely under Louisiana Revised Statute 9:5628.
• The legal question addressed whether Plaintiff's claim against Dr. Alberto Palmiano was timely filed under Louisiana prescription laws. The trial court found prescription began running September 25, 2002 when Plaintiff was discharged without aftercare instructions, making the October 7, 2003 filing untimely (more than one year later). Plaintiff argued prescription should not begin until October 9, 2002 when she was admitted to University Medical Center and informed she should have received aftercare instructions. The appellate court affirmed the trial court's finding that Plaintiff had actual or constructive knowledge of the alleged malpractice at discharge.

Holdings

Remedies

Legal Principles

• The doctrine of contra non valentem is a Louisiana jurisprudential doctrine applied to prevent the running of prescription when: (1) legal cause prevented courts from taking cognizance of the action; (2) condition prevented creditor from suing; (3) debtor acted to prevent creditor from availing of cause of action; or (4) cause of action is not known or reasonable knowable by plaintiff. This doctrine was found inapplicable in this case.
• Louisiana Revised Statute 9:5628 governs prescription in medical malpractice actions, requiring claims to be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery, but no later than three years from the date of the alleged act. Prescription begins to run when a plaintiff has actual or constructive knowledge of facts indicating to a reasonable person that they are the victim of a tort.
• The exceptor bears the burden of proof at the trial of a peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review.

Precedent Name

• Carter v. Haygood
• Williams v. Sewerage & Water Bd. of New Orleans
• In Re Woods
• Patty v. Christus Health Northern Louisiana
• Stobart v. State, Through DOTD
• Bailey v. Khoury
• Plaquemines Parish Com'n Council v. Delta Development Co., Inc.
• Campo v. Correa

Cited Statute

Judge Name

• Judge Sylvia R. Cooks
• Chief Judge Ulysses Gene Thibodeaux
• Judge J. David Painter

Passage Text

• Based on our review of the record in its entirety, we cannot say that the trial court committed manifest error in its factual finding that Plaintiff had knowledge of the alleged malpractice upon her discharge on September 25, 2002. Because the factual findings of the trial court are reasonable, we affirm the dismissal of Plaintiff's claim.
• Louisiana Revised Statute 9:5628 governs prescription in a medical malpractice action, providing that no action for damages shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect, but in all events claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
• Further, prescription begins to run when a plaintiff has 'actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.' Bailey v. Khoury, 04-0620, p. 11 (La.1/20/05), 891 So.2d 1268, 1276, citing Campo v. Correa, 01-2707, p. 11 (La.6/21/02), 828 So.2d 502, 510.