EMAIL TO A FRIEND COMMENT

 

Malpractice Action Too Late Against Prescribers of Pain Medication; Drug Overdose


A man driving a motorcycle almost collided with a vehicle driven by a minor. The man was under the care of a doctor, her practice group, and a pain management clinic for chronic pain following an industrial accident eleven years before. He continued under their care for pain associated with the near collision. His care included taking narcotic pain medication prescribed by the doctor, her practice group, and a pain management clinic.

 

The man sued the minor driver’s parents and their insurer. The complaint asserted that the minor driver’s parents were vicariously liable for the minor’s negligence. During the pendency of that matter, the man died of a drug overdose.

 

About 22 months after the man died, his mother filed a Request to Convene a Medical Review Panel against the doctor pursuant to the provisions of the Louisiana Medical Malpractice Act (LMMA). In the mother’s request, she alleged that the medical treatment rendered to the man by the doctor after his motorcycle accident caused or contributed to his death. The doctor filed an Exception of Prescription in the medical malpractice review proceeding. The Fifteenth Judicial District Court Parish of Lafayette granted an Exception of Prescription in favor of the doctor and dismissed the mother’s medical malpractice review panel proceeding by prescription.

 

About 26 months after the man died, his mother filed a Petition for Damages against the doctor’s practice group and the pain management clinic for medical malpractice and wrongful death. The doctor’s practice group and the pain management clinic filed an Exception of Prescription. The trial court granted the exception.

 

The Third Circuit Court of Appeal of Louisiana affirmed. The court held that the trial court did not abuse its discretion in granting the Exception of Prescription to the doctor, her practice group, and a pain management clinic.

 

The trial court did no manifestly err in granting the Exception of Prescription to the doctor, her practice group, and a pain management clinic. Medical malpractice claims must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect when the damages are immediately apparent. Any damages resulting from the alleged malpractice occurred prior to the man’s death by overdose and became immediately apparent when he died. The mother’s petition was filed more than two years following his death. The mother’s request to convene a medical review panel was filed more than one year after he died. The mother attempted to argue that the contra non valentum discovery exception prevented the running of prescription because the cause of action was not known or reasonably knowable by the mother. The mother contended that she did not discover a possible medical malpractice claim until thirteen months after her son died when her counsel informed her of the verbal opinion rendered by a pharmacologist/toxicologist expert regarding her son’s death. The mother argued that her request to convene a medical review panel, and thus her petition for damages, was timely given that it was filed within one year of when her counsel informed her of the expert’s opinion. The court held that a plaintiff need not be informed by an attorney or physician of the possibility of malpractice before prescription begins to run. Prescription commences and continues when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. The mother had testified that she knew her son was under the care of the doctor, her practice group, and a pain management clinic. The man’s death certificate issued five days after he died listed poly drug toxicity caused by the misuse of drugs. The court found that this evidence showed that even if the mother was unaware that her son’s death was caused by medical malpractice on the date he died, his medical malpractice cause of action was reasonably knowable by the date his death certificate was issued. Thus, the filing of the request and petition were untimely because they were filed approximately two years after the death certificate was issued.

 

The Third Circuit Court of Appeal of Louisiana affirmed the trial court’s grant of an Exception of Prescription in favor of the doctor, her practice group, and the pain management clinic.

 

See: Snavely v. Ace Pain Management, LLC, 2016 WL 430059 (La.App. 3 Cir., Feb. 3, 2016) (not designated for publication).

 

See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See the Medical Law Perspectives February 16, 2015, Blog: Pharmacy Owes Duty to Patient Not to Fill Excessive Prescriptions for Opioids 

 

See the Medical Law Perspectives October 8, 2014, Blog: Opioid Pain Pill Abusers Switch to Heroin; Heroin Overdose Deaths Double

 

 

REPRINTS & PERMISSIONS COMMENT