Insurance Dispute Lawyer Blog
A man is in the hands of a facility tasked with providing sufficient medical care. Instead of meeting this standard of care and due diligence, the facility fails to adjust the man’s diet, and he chokes on solid food that he should not eat, leading to his death. When his parents and children bring multiple complaints of medical malpractice, his children’s claim gets dismissed despite the apparent negligence of the facility. Why did that happen?
Joseph Triggs was this very man. While in the care of the Audubon Health and Rehabilitation Center (“Audubon”), Mr. Triggs choked on solid food and died in January 2013. A medical malpractice claim naming Mr. Triggs as the plaintiff was brought eight months after his death, alleging that the facility’s failure to adjust Mr. Triggs’s diet led to his death. Aubudon did not adjust his diet despite difficulty chewing and swallowing solid food.
As is the process for medical malpractice in Louisiana, the complaint requested that a medical review panel assess the situation. Nearly twenty-two months after Mr. Triggs passed, a request was made to amend the complaint, adding Mr. Triggs’s children as claimants, along with the decedent’s Estate. Finally, over two-and-a-half years after Mr. Triggs died, the medical review panel unanimously decided that Audubon had been negligent in caring for Mr. Triggs, and Mr. Triggs’s children and Estate filed a lawsuit in the trial court on a claim of medical malpractice.
Audubon then raised an exception of prescription, claiming that the time to file a medical malpractice suit had expired. Ultimately, the trial court agreed and dismissed the claim. Mr. Trigg’s children appealed on the allegation that the trial court was wrong in finding that the prescriptive period had run.
Various codes govern medical malpractice lawsuits in Louisiana. The prescriptive period for medical malpractice lawsuits is laid out in LSA-R.S. 9.5628(A), stating that these cases must be brought within one year of the alleged malpractice or discovery thereof. The Louisiana Medical Malpractice Act (“the MMA”) requires a proposed medical malpractice complaint to be brought before a medical review panel before bringing the claim to court. See LSA-RS 40:1231.8(A)(1)(a). The prescriptive one-year period should be suspended while such medical review is pending and for ninety days after the panel makes an assessment. See LSA-RS 40:1231.8(A)(2)(a).
In the present case, the complaint was brought to court more than one year after Mr. Triggs’s death. The complaint was, therefore, only timely if the original claim, in which Mr. Triggs was the only claimant named, permitted the suspension of the prescriptive period until the panel released its finding. The initial claim may have sufficiently suspended the prescription period if it suspended the prescription for all related claims or if the amended complaint is sufficiently related to the original complaint.
Mr. Triggs’s children argued that the original complaint, in which they were not named, served to suspend the prescription period for all claims of damage resulting from the alleged negligence. See Truxillo v. Thomas, 2016-2018 (La. App. 4th Cir. 8/31/16), 200 So. 3d 972. The Louisiana court of appeals previously held that the MMA requiring that claimants be named in the review panel request does not indicate that all potential claimants be named for the following claims to be covered by the suspension of the prescription.
However, courts have also held in a more recent case, Parks v. Louisiana Guest House, Inc., that a malpractice claim brought by a party, deceased before the medical review panel was convened, did not suspend the prescription period for the decedent’s children’s claim. See Park v. Louisiana Guest House, Inc., 2013-2121, 2013-2122 (La. App. 1st Cir. 9/30/14), 155 So. 3d 609, 613. In Parks, the court more narrowly interpreted the MMA to require that all claimants be named in the medical review request for the prescriptive suspension to apply. As that is the more recent case on point, the court in Trigg’s case relied on the reasoning in Parks to decide that Mr. Triggs’s children should have their claim dismissed, as the prescriptive period had run.
As is often the case, the biggest obstacle to getting your day in court can be operating by the book. The procedure of the court is strict and can be complicated. Even when the basis of your complaint is valid and supported by external fact-finders, as it was in this case, your case could be dismissed if there is an issue with procedure. You must retain counsel that understands both your case and the ins and outs of legal procedures. Losing your chance to bring a valid cause of action due to filing, documentation, or other procedural issues is something you want to avoid.
Additional Sources: Rickerson v. Audubon Health & Rehab. Ctr.
Written by Berniard Law Firm Blog Writer: Callie Ericksen
Additional Berniard Law Firm Article on Medical Malpractice and Prescriptive Periods: Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital