Cheryl and Michael Mitchell v. Baton Rouge Orthopaedic Clinic, L.L.C. and Robert W. Easton, M.D. ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0939
LCHERYL AND MICHAEL MITCHELL
v
L VERSUS
t' BATON ROUGE ORTHOPAEDIC CLINIC, L.L.C.
AND ROBERT W. EASTON, M.D.
Judgment Rendered: DEC 1 7 2020
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 658229
Honorable Timothy E. Kelley, Judge Presiding
Nelson W. Wagar, III Attorneys for Plaintiffs/ Appellants,
Sarah W. Hickman Cheryl and Michael Mitchell
Mandeville, Louisiana
Tara S. Bourgeois Attorneys for Defendants/ Appellees,
Garrett S. Callaway Robert W. Easton, M.D., Baton Rouge
Herbert J. Mang, Jr. Orthopaedic Clinic, L.L.C., et al.
Nancy B. Roberts
Baton Rouge, Louisiana
BEFORE: GUIDRY, McCLENDON, HIGGINBOTHAM,
HOLDRIDGE, AND PENZATO, JJ.
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PENZATO, J.
Plaintiffs, Cheryl and Michael Mitchell, appeal a trial court judgment in
favor of defendants, Robert W. Easton, M.D., Baton Rouge Orthopaedic Clinic,
L.L.C., Physician Assurance SPC as part of Y -Bridge Insurance Company, and
Baton Rouge Orthopaedic Clinic Segregated Portfolio Company as part of Y -
Bridge Insurance SPC ( collectively " defendants"), granting an exception raising
the objection of prescription and dismissing all of plaintiffs' claims. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 23, 2015, defendant Dr. Easton performed a left total hip
arthroplasty revision on plaintiff Cheryl Mitchell, during which Mrs. Mitchell' s
sciatic nerve was severed. Plaintiffs filed this medical malpractice action on May
26, 2017, alleging therein that Dr. Easton severed the nerve causing paralysis.
Plaintiffs further alleged that Mrs. Mitchell continued treatment with Dr. Easton
and that the basis for Dr. Easton' s continuing treatment and Mrs. Mitchell' s
continuing rehabilitation and further surgery was " her belief in and reliance upon
the physician/patient relationship and his advice that with such continued care and
rehabilitation, on his recommendation, the nerve would regenerate, heal and/ or
return her leg to a normal or acceptable condition." According to the petition, on
November 15, 2016, Dr. Easton advised Mrs. Mitchell that he no longer believed
that she would regain the function of her left lower extremity. Defendants filed a
peremptory exception raising the objection of prescription on the grounds that
plaintiffs' lawsuit, filed on May 26, 2017, alleged the date of medical malpractice
as August 23, 2015, and therefore was prescribed because it was not filed within
one year of the date of the alleged malpractice or within one year of the discovery
of the alleged malpractice.
An evidentiary hearing was held on March 18, 2019. Dr. Easton testified
that on August 11, 2015, he performed a left total hip arthroplasty on Mrs.
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Mitchell. Following the August 11, 2015 procedure, Mrs. Mitchell re -dislocated
her hip, and on August 23, 2015, Dr. Easton performed a revision of the August
11, 2015 arthroplasty. While Mrs. Mitchell was in the recovery room, Dr. Easton
noticed that Mrs. Mitchell had foot drop. According to his testimony at the hearing
on the exception raising the objection of prescription, he advised Mrs. Mitchell' s
family and returned Mrs. Mitchell to surgery to determine the cause. During this
second surgery, Dr. Easton discovered that Mrs. Mitchell' s sciatic nerve was
lacerated. Dr. Easton contacted Dr. Rasheed Ahmad, a hand surgeon with
experience in nerve repairs. Dr. Ahmad examined the wound and confirmed a
fresh laceration in the sciatic nerve. Dr. Ahmad repaired the nerve, and Dr. Easton
continued with the remainder of the surgery. Dr. Easton testified that after
completing the surgery, he advised Mr. Mitchell of the sciatic nerve injury and
subsequent repair. Dr. Easton further testified that the following day, he spoke to
Mrs. Mitchell and told her that her sciatic nerve had been lacerated during the hip
revision and that Dr. Ahmad had repaired it. He also told Mrs. Mitchell that she
had left foot drop as a result of the nerve injury. With regard to the prognosis of
her left foot drop, Dr. Easton testified he advised Mrs. Mitchell that " it would take
time, and there is a possibility it could recover, there is a possibility it might not
recover, but most of the time at a year mark, whatever function you have, that is
kind of what you are left with." According to Dr. Easton, he did not tell Mrs.
Mitchell that her sciatic nerve was going to regenerate, her left foot drop would
completely resolve, she was going to be better in a year, or in a year her left foot
would be back to normal.
Dr. Easton testified that upon Mrs. Mitchell' s discharge from the hospital
following the August 23, 2015 surgeries, she went to inpatient rehabilitation for
recovery from her left hip arthroplasty and subsequent revision. On September 30,
2015, Dr. Easton performed a revision of the left total hip arthroplasty. According
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to Dr. Easton, he performed this procedure because Mrs. Mitchell continued to
have dislocation issues; the procedure was not related to the sciatic nerve injury.
Dr. Easton testified that he continued to treat Mrs. Mitchell post-operatively until
November 15, 2016, to monitor the hip implant and to examine the joint and
prosthesis. He continued to monitor the sciatic nerve injury during that time to
determine if Mrs. Mitchell had any feeling or motion but was not treating her for
the nerve injury because there was no treatment for said injury. According to Dr.
Easton, the only treatment to restore nerve function was the repair that Dr. Ahmed
had performed. According to Dr. Easton, he never told Mrs. Mitchell that he
would fix, correct, or repair her sciatic nerve injury. He testified that his post-
operative treatment was standard for a hip arthroplasty and revision patient and
was not directed to or for Mrs. Mitchell' s sciatic nerve injury.
At the hearing on the exception, Mrs. Mitchell testified that the morning
following her August 23, 2015 surgery, Dr. Easton came to her hospital room and
told her that her sciatic nerve had been severed during the revision surgery and he
had called in another doctor to " get it back together." According to Mrs. Mitchell,
Dr. Easton told her that it was going to take up to a year before they would know
the full results of the surgery to repair her sciatic nerve and she should " not give up
hope." Mrs. Mitchell testified that during the course of her post-operative visits,
Dr. Easton continued to tell her " to wait a year" to determine the outcome of the
surgery to repair her sciatic nerve. Mrs. Mitchell acknowledged that she knew that
her foot had paralysis on August 24, 2015, but she did not immediately file suit
against Dr. Easton because she trusted him. According to Mrs. Mitchell, " He said
to give it a year, so that is what [ she] did. [ She] waited." However, Mrs. Mitchell
acknowledged that in a deposition she had previously given in this matter, she
testified that although she wanted to believe that her condition would improve
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within a year, she did not believe Dr. Easton when he said her condition would
improve in a year.
Mrs. Mitchell' s daughter, Michelle Goudeaux, also testified at the hearing.
According to Mrs. Goudeaux, following the August 23, 2015 surgery, Dr. Easton
advised Mrs. Mitchell' s family that the sciatic nerve had been severed or ruptured
and a hand specialist had been called to repair it. Mrs. Goudeaux testified that Dr.
Easton advised the family that he could not guarantee the nerve would come back,
but there was a possibility and that it would take time. According to Mrs.
Goudeaux, Dr. Easton said, " it would be so many millimeters a day that the nerve
would repair itself, and [ Mrs. Mitchell] may start to see some feeling from the top
of the leg down; it would just take time. It may be six months, it may be a year, it
could be longer." Russell Goudeaux, Michelle' s husband, also testified that Dr.
Easton did not guarantee the nerve would come back, but did say that nerves can
repair themselves and within a certain amount of time, six months but typically a
year, feeling could return. According to Mr. Goudeaux, Dr. Easton advised that it
may be up to a year or a little more before Mrs. Mitchell could start noticing some
feeling or movement back in the leg.
At the conclusion of the hearing, the trial court granted the exception and
provided oral reasons for judgment. The trial court found that upon review of the
medical records as a whole, not just portions of them taken out of context, it was
clear that Dr. Easton was providing treatment for Mrs. Mitchell' s hip revision and
not treating the sciatic nerve at all. The trial court noted that Dr. Easton admitted
that there is no treatment for the sciatic nerve and concluded:
There was no continued treatment of the sciatic nerve issue. The
treatment had to do with the regular follow-up of any and every hip
replacement patient to get them through the period of being pain- free
from the hip replacement.
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The trial court found no evidence that Dr. Easton attempted to prevent Mrs.
Mitchell from availing herself of her cause of action. It noted that no one
contested the fact that Dr. Easton immediately disclosed the injury to Mrs. Mitchell
after the surgery and that Dr. Easton never told Mrs. Mitchell that the sciatic nerve
would actually take a year to heal. Thus, the trial court concluded that there was
no evidence that Dr. Easton was " stringing her out or anything like that until the
prescriptive period passed."
The trial court found that the third category of contra
non valentem, the " continuous treatment" rule, did not apply. The trial court
further recognized that Mrs. Mitchell was given facts sufficient to place a
reasonable person on notice that she had a claim long before the one- year
prescriptive period after the operation had expired and concluded that plaintiffs'
action had prescribed. Finding that contra non valentem did not apply, the trial
court dismissed the plaintiffs' claims.
The trial court signed a judgment on April 1, 2019, sustaining the exception
raising the objection of prescription and dismissing all of plaintiffs' claims.
Plaintiffs appealed,
alleging that the trial court erred in sustaining
defendants' exception raising the objection of prescription because Mrs. Mitchell
remained under continuous treatment by Dr. Easton until November 15, 2016, and
a civil action for damages was timely filed within one year of that date.
LAW AND DISCUSSION
The objection of prescription may be raised by a peremptory exception. La.
C. C. P. art. 927( A)( 1). Evidence may be introduced to support or controvert an
exception of prescription. La. C. C. P. art. 931. If evidence is introduced at the
hearing on the peremptory exception, the trial court' s findings of fact are reviewed
under the manifest error -clearly wrong standard of review. Clavier a Our Lady of
the Lake Hosp. Inc., 2012- 0560 ( La. App. 1 Cir. 12/ 28/ 12), 112 So. 3d 881, 888,
writ denied, 2013- 0264 ( La. 3/ 15/ 13), 109 So. 3d 384. Pursuant to this standard,
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the trial court' s ruling must be affirmed unless a reasonable factual basis does not
exist for the finding of the trial court, and the record establishes that the finding is
clearly wrong. Expert Riser Solutions, LLC a Techcrane International, LLC, 2018-
0612 ( La. App. 1 Cir. 12/ 28/ 18), 270 So. 3d 655, 660. The issue to be resolved by
a reviewing court is not whether the trier of fact was right or wrong, but whether
the factfinder' s conclusion was a reasonable one. Stobart a State through Dep t of
Transp. & Dev, 617 So. 2d 880, 882 ( La. 1993).
Louisiana Revised Statutes 9: 5628 establishes the time for filing medical
malpractice actions. The statute sets forth two prescriptive limits, namely one year
from the date of the alleged act or one year from the date of discovery with a three-
year limitation from the date of the alleged act, omission, or neglect to bring such
claims. Carter v Haygood, 2004- 0646 ( La. 1/ 19/ 05), 892 So. 2d 1261, 1268. To
soften the occasional harshness of prescriptive statutes, Louisiana courts have
recognized a jurisprudential exception to prescription: contra non valentem non
currit praescriptio, which means that prescription does not run against a person
who could not bring his suit. Id. There are four recognized categories of contra
non valentem: ( 1) where there was some legal cause which prevented the courts or
their officers from taking cognizance of or acting on the plaintiff' s action; ( 2)
where there was some condition coupled with the contract or connected with the
proceedings which prevented the creditor from suing or acting; ( 3) where the
debtor himself has done some act effectually to prevent the creditor from availing
himself of his cause of action; and ( 4) where the cause of action is not known or
reasonably knowable by the plaintiff, even though this ignorance is not induced by
the defendant. Kirby v Field, 2004- 1898 ( La. App. 1 Cir. 9/ 23/ 05), 923 So. 2d
131, 135, writ denied, 2005- 2467 ( La. 3/ 24/ 06), 925 So. 2d 1230.
Plaintiffs contend that the undisputed facts of this case compel application of
the third category of contra non valentem, the " continuous treatment" rule. The
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third category of contra non valentem has been held to encompass situations where
an innocent plaintiff has been lulled into a course of inaction in the enforcement of
his right by reason of some concealment or fraudulent conduct on the part of the
defendant, or because of his failure to perform some legal duty whereby plaintiff
has been kept in ignorance of his rights. Carter, 892 So. 2d at 1269. In certain
circumstances, a doctor' s continuing professional relationship with his patient
might give rise to the suspension or interruption of prescription. Id. This
interruption or suspension of prescription by the continued existence of a
professional relationship is based on the premise that the professional relationship
is likely to hinder the patient' s inclination to sue. Id.
The continuing treatment rule requires a plaintiff to establish the existence of
1) a continuing treatment relationship with the physician, which is more than
perfunctory, during which ( 2) the physician engaged in conduct which served to
prevent the patient from availing herself of her cause of action, such as attempting
to rectify an alleged act of malpractice. Carter, 892 So. 2d at 1271.
Plaintiffs contend that Dr. Easton' s reassurances that Mrs. Mitchell would
have to wait a year to determine whether the nerve would regenerate was sufficient
to suspend prescription, particularly given the fact that her prognosis for
regeneration of the sciatic nerve was dubious. Plaintiffs argue that the facts of this
case compel a holding consistent with In re Noe, 2004- 0760 ( La. App. 4 Cir.
8/ 3/ 05), 916 So. 2d 1138, aff' d in part, rev' d in part, 2005- 2275 ( La. 5/ 22/ 07), 958
So. 2d 617.
In Noe, plaintiff received a steroid injection for sinus congestion on June 11,
2001. Noe, 916 So. 2d at 1140. Within one week of the injection, a knot
developed at the site of the injection, and one month after the injection, plaintiff
experienced an increase in pain and suffered atrophy of the buttock muscle. On
August 6, 2001, plaintiff returned to her doctor because of persistent pain and
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discoloration in the injection area, and he placed her on a one- year recovery
program and reassured her that it would resolve in time. Id. Plaintiff continued to
treat with her doctor for the injury. On April 3, 2002, due to plaintiff' s increasing
symptoms, her doctor referred her to a neurologist and ordered a nerve conduction
study and an MRI, which revealed nerve injury relating to the injection. Id.
Plaintiff filed a medical malpractice claim on March 12, 2003, asserting she
learned for the first time in April 2002 that the injection was the cause of her
continuing back, buttock, and leg pain. Id. The defendant doctor filed an
exception raising the objection of prescription, which the trial court granted. The
Louisiana Fourth Circuit Court of Appeal reversed, finding that the continuing
doctor -patient relationship coupled with the defendant doctor' s reassurances of
recovery and his treatment plan " thwarted [ plaintiff' s] inclination to bring suit and
prevented the claim from prescribing." Id. at 1143. The Louisiana Supreme Court
affirmed the decision in pertinent part. Noe, 958 So. 2d 617.
In contrast to Noe, the record in this case establishes that the trial court' s
conclusion that there was no continued treatment of the sciatic nerve injury is a
reasonable one. Moreover, in this case, the evidence indicates that plaintiffs were
aware that Mrs. Mitchell' s sciatic nerve had been severed during surgery, causing
her foot drop. Unlike the defendant doctor in Noe, Dr. Easton did not make
assurances of recovery; rather, he advised Mrs. Mitchell that it could take up to a
year before they would know the full results of the surgery to repair the nerve. The
trial court' s finding that there was no evidence that Dr. Easton engaged in any
conduct that prevented plaintiffs from filing suit is not clearly wrong. In the
absence of any proof of such conduct amounting to fraud, misrepresentation, or
intentional concealment by Dr. Easton, the continuing treatment rule is not
applicable. E.g., McCauley a Stubbs, 2017- 933 ( La. App. 3 Cir. 4/ 25/ 18), 245 So.
3d 415 47; Wilkerson a Dunham, 2016- 1056 ( La. App. 4 Cir. 5/ 3/ 17), 218 So. 3d
I
743, 749, writ denied, 2017- 0932 ( La. 9/ 29/ 17), 227 So. 3d 287; Jimerson u
Majors, 51, 097 ( La. App. 2 Cir. 1/ 11/ 17), 211 So. 3d651, 658.
Accordingly, we find that the trial court did not manifestly err in concluding
that plaintiffs' claims against defendants have prescribed.
CONCLUSION
For these reasons, the trial court' s April 1, 2019 judgment sustaining the
peremptory exception raising the objection of prescription filed by defendants,
Robert W. Easton, M.D., Baton Rouge Orthopaedic Clinic, L.L.C., Physician
Assurance SPC as part of YBridge Insurance Company, and Baton Rouge
Orthopaedic Clinic Segregated Portfolio Company as part of YBridge Insurance
SPC, and dismissing all claims by Cheryl and Michael Mitchell against them is
affirmed. Appeal costs are assessed to plaintiffs, Cheryl and Michael Mitchell.
AFFIRMED.
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CHERYL AND MICHAEL MITCHELL STATE OF LOUISIANA
VERSUS COURT OF APPEAL
BATON ROUGE ORTHOPAEDIC FIRST CIRCUIT
CLINIC, L.L.C. AND ROBERT W.
EASTON, M.D. 2019 CA 0939
HOLDRIDGE, J., dissenting
I respectfully dissent. I find that the continuing treatment rule applies in this
case to suspend the running of prescription on Mrs. Mitchell' s cause of action
against Dr. Easton until such time as Dr. Easton' s treatment and monitoring of
Mrs. Mitchell ended on November 15, 2016. Therefore, this malpractice lawsuit,
filed on May 26, 2017, within one year of the date on which the treatment was
terminated, is timely.
In order for the continuing treatment exception to prescription to apply to a
medical malpractice claim, the plaintiff must establish: ( 1) a continuing treatment
relationship with the physician, which is more than perfunctory in nature, during
which ( 2) the physician engaged in conduct which served to prevent the plaintiff
from availing herself of her cause of action, such as attempting to rectify an alleged
act of malpractice. Carter v. Haygood, 2004- 0646 ( La. 1/ 19/ 05), 892 So. 2d 1261,
1271. Both elements are satisfied in this case.
First, the trial court' s conclusion that there was no continued treatment of
Mrs. Mitchell' s sciatic nerve injury by Dr. Easton is not supported by the record
and is contrary to the Supreme Court' s decision in Carter. In this case, after
admittedly injuring Mrs. Mitchell' s sciatic nerve during the August 23, 2015 hip
surgery, Dr. Easton had another physician attempt to repair that injury. Dr. Easton
admitted that he continued to monitor the progress of Mrs. Mitchell' s nerve injury
throughout the course of his continued treatment and monitoring of Mrs. Mitchell' s
hip condition. Further, due to the type of injury suffered, Dr. Easton confirmed
that monitoring Mrs. Mitchell' s progress after the repair of the severed nerve was
the only treatment available. He stated, "[ t]he treatment of any lacerated nerve is
to repair it and hopefully get an end-to- end anastomosis, and then you just have to
wait and see." He further testified, "[ t]here is really nothing to do with the sciatic
nerve injury other than see how she was doing and everything else.... I was
monitoring to see if she had any feeling or motion." Dr. Easton advised Mrs.
Mitchell that "[ t]here is a possibility it could recover, there is a possibility it might
not recover, but most of the time at the year mark, whatever function you have,
that is kind of what you are left with." Accordingly, Dr. Easton' s continued
treatment and assessment of Mrs. Mitchell' s sciatic nerve injury during his
treatment of Mrs. Mitchell satisfies Carter' s requirement that there be a
continuing treatment relationship between Mrs. Mitchell and Dr. Easton.
As to Carter' s second element, without question, Dr. Easton advised Mrs.
Mitchell that there was a possibility she could recover from the damage he caused
by injuring her sciatic nerve, and he set the time frame of the possible recovery at
the one- year mark. I find that Dr. Easton' s actions in advising Mrs. Mitchell of the
possibility of recovery within a one- year time frame, coupled with his continued
treatment of Mrs. Mitchell, which treatment included monitoring of the progress of
the sciatic nerve injury, served to effectively prevent Mrs. Mitchell from pursing a
lawsuit against him. Mrs. Mitchell was entirely reasonable in relying on Dr.
Easton' s advice in failing to file a lawsuit against him until after the expiration of
the one- year recovery period. If she had significant or full recovery after one year,
she may not have filed suit.
The continuing treatment rule was developed to protect the element of trust
that is vital to the doctor -patient relationship. See Carter, 892 So. 2d at 1273.
Interruption or suspension of prescription due to a continued professional
relationship is based upon the premise that the professional relationship is " likely
to hinder the patient' s inclination to sue." Abrams v. Herbert, 590 So. 2d 1291,
1295 ( La. App. 1St Cir. 1991). The facts of this case illustrate precisely why the
continuing treatment rule should be applied to suspend prescription on Mrs.
Mitchell' s claim against Dr. Easton. Dr. Easton lacerated Mrs. Mitchell' s sciatic
nerve during hip surgery on August 23, 2015, attempted immediately to rectify that
error, and advised his patient of the error and the one- year recovery period needed
to determine the extent of such injuries. Dr. Easton continued to treat Mrs.
Mitchell throughout that one- year recovery period, which included monitoring the
progress of both the hip replacement surgery and the sciatic nerve injury he
inflicted during that surgery. I find that prescription on Mrs. Mitchell' s cause of
action against Dr. Easton did not commence to run until the termination of their
professional relationship on November 15, 2016. To hold otherwise would force a
victim of malpractice to initiate a lawsuit against her physician while the doctor -
patient relationship is ongoing and before it is known whether the attempt to rectify
the alleged act of malpractice by that doctor in fact succeeded. Such a lawsuit, in
most cases, would terminate the doctor -patient relationship and require the patient
to find a new doctor. It would also result in the filing of more medical malpractice
cases wherein the patient is legally obligated to file suit against her doctor even
though she would not have sued had her condition been rectified after a period of
time. I do not believe this is the result contemplated by the Medical Malpractice
Act. For all of these reasons, I find that the trial court erred in sustaining the
prescription objection, and I would remand the matter to the trial court for further
proceedings.