Claim Against Anesthesiologist Was Filed Too Late: Louisiana Medical Malpractice Statute Of Limitations – La. R.S. 9:5628(A) provides two periods for filing a malpractice action—either one year from the date of the alleged act, omission or neglect, or one year from the date of discovery of the act, omission or neglect, provided that no more than three years have elapsed from the date of the alleged act, omission or neglect. The second period is a codification of the fourth category of contra non valentem that occurs where the cause of action is not known or reasonably knowable by the plaintiff and when the damages are not immediately apparent upon commission of the alleged malpractice.
The plaintiff’s ignorance of his cause of action cannot be attributable to his own willfulness or neglect, as a plaintiff is deemed to know what he could have learned by reasonable diligence.
In a Louisiana medical malpractice case decided by the Court of Appeal Second Circuit State of Louisiana (“Louisiana Appellate Court”) on August 10, 2022, when Plaintiffs originally filed the complaint for review under the Louisiana Medical Malpractice Act (“LMMA”), they named only the Hospital and its employees as defendants in the case. The complaint specifically alleged that the administration of the anesthesia, the amount and the type fell below the applicable standard of care and were related to the death. The allegations in the complaint also included that the Hospital fell below the standard of care regarding the anesthesiologist’s training. These allegations were made without the anesthesiologist being named. That application for review was timely filed within a year of the date of their father’s death.
Two years and ten months later, Plaintiffs amended their complaint to the Panel because they suddenly “discovered” Dr. Arena’s name and employment status. The Louisiana Appellate Court stated that this discovery is not the “discovery” envisioned by the legislature in the second prescriptive period provided in La. R.S. 9:5628. That statute gives parties the time from the discovery of “the act, omission or neglect,” not the name of the person who performed the act or whether he was an employee of the hospital. Those are facts which could have been discovered with reasonable diligence. “Dr. Arena’s name was certainly included in the medical records from the date of surgery and death. Further, the fact that he is self-employed is also easily discoverable, and Plaintiffs’ failure to discover these facts is unreasonable.”
The Louisiana Appellate Court held: “the complaint against Dr. Arena, filed more than two years and ten months after the date of the alleged act of medical malpractice, has prescribed on its face and this assignment of error is without merit.”
Source Johnson v. Ruston Louisiana Hospital Co., LLC, d/b/a Northern Louisiana Medical Center, No. 54,258-CA.
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