Plaintiff/Appellant, Renea Fanguy, appeals the sustaining of a peremptory exception of prescription in favor of Defendants/Appellees, Michael E. Graham, M.D. and Lexington Insurance Company, from the 24th Judicial District Court, Division "L", pertaining to one of her medical malpractice claims. Additionally, Ms. Fanguy seeks supervisory review of the denials of her Motions in Limine to exclude the opinion of the medical review panel ("hereinafter referred to as "the Panel") and the testimony of any of the Panel members who participated in the opinion. For the reasons that follow, we reverse the trial court's ruling sustaining the peremptory exception of prescription, reverse the trial court's denials of the Motions in Limine, and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
According to the pleadings, Ms. Fanguy had been a patient of Dr. Graham for obstetrics and gynecology occasionally since 1989. In her visit with Dr. Graham on September 17, 1996, Ms. Fanguy first complained of left-sided pelvic pain. Dr. Graham performed a laparoscopy on October 4, 1996, and multiple pelvic adhesions were lysed in an attempt to alleviate Ms. Fanguy's left-sided pelvic pain.
On June 3, 2008, Ms. Fanguy went to the emergency room at Tulane Hospital complaining of abdominal pain in her lower left quadrant for the previous three days. The examination showed she was positive for lower left quadrant and super-pubic tenderness. An ultrasound performed showed a normal uterus and a right ovary that was slightly larger than the left.
In her follow-up visit with Dr. Graham on June 6, 2008, Ms. Fanguy complained of dyspareunia, dysmenorrhagia and hemorrhagia. The examination was normal except for left adnexal tenderness and an enlarged uterus. On June 17, 2008, Dr. Graham performed another laparoscopy on Ms. Fanguy. This procedure yielded an adhesion from the proximal segment of the tube on the left hand side to the lateral pelvic sidewall and multiple ovarian cysts that appeared to be benign. In addition, there was a false pocket located consistent with endometriosis on the right uterosacral ligament, which was lasered.
Ms. Fanguy returned to Dr. Graham on December 1, 2008, complaining again of worsening left-sided pelvic pain described as a "constant ache" and increasing dyspareunia that was not relieved by the previous surgery. She also complained of heavy bleeding. Ms. Fanguy was scheduled for a hysterectomy to take place on December 26, 2008. Ms. Fanguy indicated that she wanted, at least, one ovary left in place, as she did not want to go into premature menopause. During the procedure, Ms. Fanguy's uterus was found to be dysmorphic on the left side, which was pressing on the left side. The right ovary was noted to be totally encapsulated and stuck to the posterior aspect of the uterus. Ms. Fanguy's right ovary was removed during the surgery.
On October 6, 2009, Ms. Fanguy had her first consultation with Dr. Susan Jeanfreau for a second medical opinion regarding her continued pelvic pain. Dr. Jeanfreau prescribed Ms. Fanguy Lupron Depot, a medication used for treatment of endometriosis, for treatment of her pelvic pain.
Ms. Fanguy filed a "Request for Review of Malpractice Claim by Medical Review Panel" against Dr. Graham with the Division of Administration on December 23, 2009. In her request, Ms. Fanguy alleged Dr. Graham's care and treatment fell below
Ms. Fanguy filed a "Petition for Damages" against Defendants on April 1, 2011, asserting similar allegations as the request for review, to which Defendants filed an answer. On September 15, 2011, Ms. Fanguy filed a "Motion in Limine to Exclude the Medical Review Panel Opinion and Any Testimony of Defense Experts." In the motion, Ms. Fanguy alleged that panel member, Dr. Vernon Carriere, is a business partner of Dr. Graham and should have been ineligible to serve on the Panel. As such, Ms. Fanguy alleged that Dr. Carriere's participation in the Panel tainted the entire opinion. Moreover, Ms. Fanguy alleged the Panel's opinion does not conform to LSA-C.C.P. art. 1425, in that it does not contain sufficient information such that it will assist the trier of fact or that it can be deemed reliable, and it does not conform to the Daubert/Foret
Subsequently, on September 22, 2011, Defendants filed a peremptory exception of prescription, alleging that any of Ms. Fanguy's claims arising before December 21, 2008 were prescribed pursuant to LSA-R.S. 9:5628.
The exception of prescription and the motions were heard by the trial court on October 18, 2011. In a judgment signed on October 26, 2011, the trial court sustained the exception of prescription in favor of Defendants; granted the motion to exclude Dr. Carriere as a witness; denied the motion to exclude the Panel's opinion and allowed it pursuant to LSA-R.S. 40:1299.47; and denied the motion to exclude the testimony of the defense experts (the two remaining members of the Panel). The motion for appeal was signed on November 8, 2011, and the instant appeal followed.
On November 28, 2011, Ms. Fanguy filed a supervisory writ seeking review of the trial court's denials of the motions in limine to exclude the Panel's opinion and the defense experts. On the same date, Ms. Fanguy filed an "Unopposed Motion to Consolidate Application for Supervisory
ASSIGNMENTS OF ERROR
In the briefs submitted to this Court, Ms. Fanguy raises the following assignments of error: 1) the trial court erred in failing to apply the doctrine of contra non valentem to her claim and finding her Request for Review had prescribed because her medical malpractice claims for surgery and treatment were performed more than one year prior to her filing of the request; 2) the trial court erred in denying the Motion in Limine to exclude the Panel's opinion as tainted; and 3) the trial court erred in denying the Motion in Limine to exclude any panel member from rendering expert testimony at trial, either because the opinion is legally defective pursuant to LSA-C.C.P. art. 1425 or because the opinion is legally defective due to its corrupt, tainted status.
LAW AND ANALYSIS
Exception of Prescription
Ms. Fanguy alleges the trial court erred in sustaining the peremptory exception of prescription pertaining to the claims arising prior to December 21, 2008. Ms. Fanguy contends that prescription of her June 17, 2008, claim was suspended under the doctrine of contra non valentem pursuant to Carter v. Haygood, 04-0646 (La.1/19/05); 892 So.2d 1261, because the petition alleged a continuing tort claim. She avers that her petition alleged that she could not have known that Dr. Graham, her trusted physician of sixteen years, committed medical malpractice prior to December 26, 2008 due to Dr. Graham's continued treatment of her and his failure to advise her of less invasive, pharmaceutical options throughout her treatment. She also avers the allegations in the petition more than sufficiently state a claim under the discovery exception provision of the Medical Malpractice Act. Because of her continuing tort allegation, Ms. Fanguy further contends that prescription is not evident on the face of the pleadings; therefore, the trial court erred in shifting the burden of proving the claim had not prescribed to her.
Defendants argue the trial court was correct in its determination because contra non valentem does not apply to Ms. Fanguy's June 17, 2008, claim. Defendants assert there was absolutely no evidence before the trial court to remotely suggest that Dr. Graham was aware of any of Ms. Fanguy's alleged debilitating pain, let alone that he reassured her, attempted to remedy her alleged injury, or attempted to ameliorate her knowledge of the alleged malpractice. Defendants aver that, subsequent to Ms. Fanguy's June 26, 2008, post-operative visit where she was noted to be healing normally, there is no notation of any further complaints of pain until December 1, 2008. And even at the December visit, Defendants further aver Ms. Fanguy voiced her desire for relief from multiple problems that were not limited to pelvic pain. In addition, Defendants assert Ms. Fanguy did not establish that she had more than a perfunctory relationship with Dr. Graham, and there was a complete absence of evidence that would even suggest Dr. Graham engaged in conduct that would prevent Ms. Fanguy from availing herself of a cause of action. Defendants further argue that contra non valentem does not apply pursuant to the discovery exception because Ms. Fanguy had constructive knowledge that the June 17, 2008, surgery did not relieve her symptoms.
The standard controlling review of a peremptory exception of prescription
In the instant matter, Ms. Fanguy's request for review was filed on December 23, 2009, alleging acts of Dr. Graham's medical malpractice occurring in June 2008 and December 2008. On the face of the petition, the June 2008 claim was prescribed. As such, Ms. Fanguy bore the burden of showing that claim was not prescribed. The record is void of any evidence introduced at the trial on the merits.
LSA-R.S. 9:5628 controls the prescriptive period for medical malpractice actions and states that an action for damages against a health care provided must be brought within one year from the date of the alleged act or one year from the date of discovery of the alleged act with a three year limitation from the date of the alleged negligent act. In In re Manus, supra, this Court set forth the following regarding prescription, contra non valentem, and medical malpractice claims:
In her petition, Ms. Fanguy alleges she first began experiencing pain in the left side of her pelvis on or about September 17, 1996. The petition further alleges the surgery performed by Dr. Graham on June 17, 2008 failed to resolve her left-sided pelvic pain, and she returned again on December 1, 2008 with a continued complaint of left-sided pelvic pain and dyspareunia. The petition also alleges Dr. Graham's treatment of Ms. Fanguy's left-sided pelvic pain fell below the standard of care for gynecologists under the same or similar conditions and in particular that Dr. Graham:
In addition, Ms. Fanguy alleged she continued to suffer post-operative, left-sided pelvic pain for which she had to seek additional treatment elsewhere. Also, the petition alleges that "[a]t no time, either before or after the second laparoscopy on June 17, 2008, which confirmed endometriosis, did Dr. Graham recommend gonadotropin-releasing hormone (GnRH) agonists. His failure to do so is contrary to the guidelines set forth by the American College of Gynecologists (ACOG)."
After review, we find the trial court was erroneous in finding that Ms. Fanguy's June 17, 2008, claim was prescribed. In her petition, Ms. Fanguy established that prescription had been suspended through the fourth category of contra non valentem. The petition alleges the "discovery rule" exception, in that it stated the June 17, 2008, surgery failed to resolve her left-sided pelvic pain. Although Ms. Fanguy did not return to Dr. Graham until December 1, 2008, she had insufficient knowledge there was a remaining medical problem for the months between June 2008 and December 2008.
Therefore, we find the trial court erred in sustaining Defendants' peremptory exception of prescription against Ms. Fanguy for any treatment or surgery performed more than one year prior to the filing of the request for review but within three years of the date of the treatment.
Motion in Limine to exclude the Panel's opinion and expert testimony of the remaining panel members
Ms. Fanguy alleges the trial court abused its discretion by failing to exclude the Panel's opinion because Defendants' and Dr. Carriere's misconduct tainted the entire proceedings. Ms. Fanguy contends that Dr. Graham's and Dr. Carriere's failure to disclose their financial relationship violated LSA-R.S. 40:1299.47 of the Medical Malpractice Act. As such, Ms. Fanguy argues the violation of LSA-R.S. 40:1299.47 disqualified Dr. Carriere as an impartial panel member, and allowing the Panel's opinion to be entered as evidence would be highly prejudicial to her case due to Dr. Carriere's taint. Additionally, Ms. Fanguy argues the Panel's opinion is legally insufficient under LSA-C.C.P. art. 1425 because it does not comply with the minimum legal standards for an expert report, and it does not contain sufficient information that will assist the trier of fact or can be deemed reliable. Because Ms. Fanguy argues the Panel's opinion is tainted, she also argues the admission of the testimony of the remaining two panel members is improper.
Defendants argue there was no conflict presented to the trial court that would mandate exclusion of the panel members or the opinion. Defendants contend there is absolutely no evidence before the court to suggest that any of the panelists were biased or tainted. Defendants assert Dr. Carriere signed an oath, thus establishing that he could perform his duties as a panelist faithfully and without partiality, and no evidence was presented to establish that Dr. Carriere violated his oath.
In this matter, the trial court granted Ms. Fanguy's "Motion in Limine" to exclude Dr. Carriere as a witness; yet, the trial court denied the exclusions of the Panel's opinion and the testimony of the two remaining members of the Panel. Ms. Fanguy's motion alleged Dr. Carriere was ineligible to serve on the Panel because of his financial relationship with Dr. Graham. If the trial judge agreed with Ms. Fanguy's position that Dr. Carriere was ineligible to serve on the Panel, then it is illogical to allow the Panel's opinion, in which Dr. Carriere participated, to be entered into evidence at trial because the entire medical review process was tainted by Dr. Carriere's participation.
Therefore, we find the trial court erred in denying the motion to exclude the Panel's opinion because it was tainted by Dr. Carriere's participation. Additionally, we find the trial court erred in denying the motion to exclude the testimony of the two remaining members of the Panel due to Dr. Carriere's taint of the entire medical review. Accordingly, the writ application is granted.
For the foregoing reasons, we reverse the sustaining of the peremptory exception of prescription by the trial court in favor of Lexington Insurance Company and Michael Graham, M.D., and against Renea Fanguy. Additionally, we find merit to the issues raised by Ms. Fanguy in her supervisory writ application and, accordingly, grant the writ. Lexington Insurance Company and Michael Graham, M.D. are to bear the costs of this appeal.