Professional Negligence Law Reporter

A Louisiana appellate court held that a patient’s dental negligence suit was time-barred where her medical review panel complaint was filed after the one-year prescriptive period and she failed to offer any facts establishing delayed discovery of the alleged malpractice.

On Feb. 10, 2022, Danielle Poree was allegedly informed by her treating dentist, Ambrose Martin III, that he had pulled the wrong tooth during her dental procedure. Poree also allegedly suffered damage to two other teeth after receiving a temporary bridge following the extraction. In September 2022, Poree sued Martin and his practice. The following February, the defendants filed a dilatory exception of prematurity, arguing that Poree was required to first present her claims to a medical review panel because the defendants were enrolled in the Patient’s Compensation Fund (PCF). The next day, on Feb. 14, 2023, the plaintiff filed a request for a medical review panel with the Louisiana Division of Administration. The trial court dismissed the lawsuit without prejudice, and the defendants filed a peremptory exception of prescription, arguing that the plaintiff’s request for a medical review panel was prescribed on its face in light of the date of the alleged malpractice—Feb. 10, 2022. The trial court sustained the defendants’ peremptory exception of prescription and granted the plaintiff 30 days to amend her complaint and set forth facts establishing a delayed discovery of her malpractice claim.

The plaintiff did not amend her medical review panel complaint, instead filing a second amended petition for damages. The trial court granted a defense motion to enforce the judgment, finding that the plaintiff’s request for a medical review panel was prescribed in that it was filed over a year after the alleged malpractice occurred.

Affirming, the appellate court noted that damages actions arising out of patient care must be filed within one year from the date of the alleged act or omission and within one year from the date of discovery, provided this date is within three years of the alleged act or omission. Here, the court said, the plaintiff listed the date of the alleged malpractice as Feb. 10, 2022, and she filed the request for a medical review panel on Feb. 14, 2023. Citing case law, the court found that filing suit before invoking a medical review panel does not suspend the running of the prescriptive period.

Finding that the plaintiff had been put on notice of the alleged malpractice on Feb. 10, 2022, and had failed to establish delayed discovery, the court concluded that the plaintiff had failed to meet her burden of proving her action was not prescribed. The court rejected the plaintiff’s argument that the defendants’ failure to inform her they were enrolled in the PCF moved the date of discovery to February 2023. The discovery rule relates to the date a person obtains actual or constructive knowledge of facts indicating they have suffered a tort injury, the court said. Moreover, the parties here had not agreed to waive the medical review panel.

Accordingly, the court concluded the trial court had not erred in holding that the plaintiff’s claims were prescribed.

Citation: In re Poree, 2024 WL 4906407 (La. Ct. App. Nov. 27, 2024).