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May 25, 2001 (Revised 6/11/01 Corrected Page 3)

SUPREME COURT OF LOUISIANA
No. 00-C-2643

IN RE: MEDICAL REVIEW PANEL FOR THE CLAIM OF MARIA MOSES

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

CIACCIO, Justice pro tempore* This is a medical malpractice action. We granted certiorari in this case to resolve a novel legal issue presented based on the undisputed facts of this case. The issue presented is two-pronged: (i) whether the continuing tort doctrine can be invoked to enlarge the prescriptive period under La. Rev. Stat. 9:5628; and, if so, (ii) whether a necessary requirement for invoking the continuing tort doctrine in this context is continuing negligent treatment.

Facts On September 3, 1991, Maria Moses, who was pregnant at the time, had a McDonald cerclage surgically attached to her cervix; this was a prophylactic

_________________________ *Philip Ciaccio, Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon. procedure done to prevent premature delivery.1 The procedure was performed at
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A McDonald cerclage procedure is described as follows: operation for the treatment of an incompetent

An

University Medical Center in Lafayette (UMC). On December 30, 1991, the cerclage was removed at UMC, yet some of the metal stitches that had been used to attach the device to Moses' cervix were not. On July 16, 1996, during a routine pap smear exam at Iberia Parish Health Unit, the remaining stitches were discovered. On September 5, 1996, the stitches were surgically removed at UMC. On July 2, 1997,2 Moses filed a request to invoke a medical review panel with the Commissioner of Administration regarding the alleged malpractice of UMC and Louisiana Health Care Authority (LHCA).3 Moses alleges the remaining stitches caused her to suffer from cramping, longer menstrual cycles, anxiety attacks, nervousness, headaches, and uncomfortable sexual relations. On October 27, 1997, LHCA and UMC filed a petition to institute discovery in the Nineteenth Judicial District Court under La. Rev. Stat. 40:1299.39.1 D(4).4 On August 24,
cervix (abnormally dilated cervix during pregnancy) in which the cervix is encircled with sutures and drawn together (as with a purse string) to reduce the size of the cervical opening. (The suture or ligature is later removed to permit delivery.) 4 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder (1995)(emphasis supplied). The failure to properly perform the latter, underscored portion of the procedure-removal of the stitches--is the malpractice at issue in this case. On March 13, 1997, Moses filed a damage suit in Fifteenth Judicial District Court. In response, the Louisiana Health Care Authority filed an exception of prematurity, noting that UMC is a qualified health care provider. Moses then voluntarily moved to dismiss that suit. LHCA, according to UMC's brief filed in this court, is no longer an existing entity, leaving UMC as the sole qualified health care provider against whom plaintiff's medical review panel proceeding, if timely, can proceed. UMC thus refers to itself as the sole defendant in its pleadings before this court. We likewise do the same. La. Rev. Stat. 40:1299.39.1 D(4) provides: "[u]pon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection or copying, or both." The other relevant statutory provision is La. Rev. Stat. 2
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1998, UMC filed a peremptory exception of prescription in the pending discovery proceeding. The trial court sustained the exception.5 Reversing and remanding for a continuation of the medical review panel proceeding, a divided panel of the appellate court, in an unpublished opinion, accepted Moses' argument that prescription did not commence to run until September 5, 1996, when the remaining stitches were removed. The court noted that the basis for delaying the commencement of prescription running was not the special discovery rule set forth in La. Rev. Stat. 9:5628, but rather the continuing tort doctrine as described by this court in South Central Bell Telephone Co. v.

40:1299.39.1 B(2)(a), which provides: "[t]he state or a person,against whom a claim has been filed under the provisions of this Part, may raise any exceptions or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the state medical review panel." That defendants elected to assert the exception of prescription in this discovery proceeding, as opposed to instituting a new proceeding is a distinction without a difference. If the exception is sustained, the result is the panel "shall be dissolved." La. Rev. Stat. 40:1299.39.1 B(2)(b). If the exception is overruled and if the plaintiff elects to proceed with a damage action, plaintiff will have to institute a separate suit under a new docket number. See Watson v. Lane Memorial Hospital, 99-0930 (La. 5/28/99), 743 So. 2d 676 (finding improper plaintiff's attempt to file their damage action under the discovery proceeding docket number and holding random allotment rule mandated plaintiff file new malpractice suit.) The procedural ramifications of defendants' utilization of the existing district court discovery proceeding to raise a pre-suit exception of prescription demonstrate that this case is distinctly different procedurally from Watson, contrary to the suggestion of a concurring judge in the appellate court. The trial court recited sustaining the exception:
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the

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reasons

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[I]n this case she certainly had several visits back when they put in the stitches, took out the stitches, left the stitches back in 1991, and then up in 1996 they were discovered when they were removed. However, this court does not feel that this is the same type situation as Winder [v. Avet, 613 So. 2d 199 (La. App. 1st Cir. 1992), writs denied, 617 So. 2d 907 (La. 1983)]. It is [sic] the same type of continuing tort, and for those reasons the exception is granted. 3

Texaco, Inc., 418 So. 2d 531 (La. 1982), and as applied in the medical malpractice setting in Bellard v. Biddle, 98-1502 (La. App. 3rd Cir. 3/17/99), 734 So. 2d 733.6 The court of appeal noted the split among the circuits on the issue of whether the continuing tort doctrine applies in the medical malpractice setting as a defense against the three-year discovery rule of La. Rev. Stat. 9: 5628 absent continuing contact or treatment. Particularly, the First Circuit in this case noted the contrary holdings by the Fourth and Second Circuits in Romaguera v. Overby, 97-1654 (La. App. 4th Cir. 3/4/98), 709 So. 2d 266, and Jeter v. Shamblin, 32,618 (La. App. 2nd Cir. 2/1/00), 750 So. 2d 521, respectively, rejecting the continuing tort defense; whereas, it cited the Third Circuit's holding in Bellard, accepting that defense. Explaining the reasoning in Bellard, finding that reasoning persuasive and analogizing the facts of this case to Bellard, the intermediate court stated: In Bellard, the court found that, assuming the plaintiff's problems were caused by the piece of rubber left in her abdomen, the rubber itself caused harm progressively, just as did the leaking gas tanks in South Central Bell. Thus, the court concluded that the alleged malpractice constituted a continuing tort. Applying South Central Bell, the court found the existence of the rubber and the harm it allegedly caused to be continuing up to the time it was removed and the damage abated and, thus, plaintiff's claim was timely. We find the instant case to be directly on point with Bellard. The actual existence of the metal sutures on plaintiff's cervix was of a continuing nature and caused physical damage to the plaintiff on a daily basis. We believe that the accrual of prescription is suspended under facts such as those presented here, where the plaintiff has suffered continuous damages from day to day caused by the unknown presence of metal sutures left in her body. In plaintiff's handwritten responses to interrogatories, which were introduced into evidence, she indicated that she went to all of her doctor's appointments after her baby was born in 1991, and "the doctors never mention[ed] [that the
While the court of appeal acknowledges this court's recent pronouncement in Crump v. Sabine River Authority, 98-2326 at p. 9 (La. 6/29/99), 737 So. 2d 720,728, which held that a "continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act," it further noted that, unlike this case, Crump and South Central Bell both involved property damage. 4
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sutures] were there." In this case, the harm caused by the daily presence of the sutures continued up to the time they were discovered and subsequently removed on September 5, 1996. (citations omitted). The court of appeal thus held that prescription did not commence to run until September 5, 1996, when the remaining stitches were removed, rendering Moses' claim filed in July 1997 with the Commissioner timely.7 Citing this court's holding in Crump v. Sabine River Authority, 98-2326 (La. 6/29/99), 737 So. 2d 720, that a continuing tort does not result from the continuation of the ill effects of an original, wrongful act, a dissenting appellate court judge opined that the continuing tort doctrine is inapplicable in this case, stating: In this case, the acts of malpractice were the UMC physicians' failure to remove all of the stitches from the plaintiff's cervix on December 30, 1991, and their failure (assuming UMC physicians conducted plaintiff's post-partum examinations) to detect the unremoved stitches during her post-partum examinations. These original acts caused the continuing ill effects suffered by plaintiff. Once plaintiff ceased to have a doctor-patient relationship with the UMC staff, there was no continuing duty or continuing breach of duty by them which serves to interrupt the prescriptive period. Although the 3-year outside limit for filing medical malpractice claims is harsh in situations such as the one presented in this case, La. R.S. 9:5628 is clear.8 On defendant-UMC's application, we granted certiorari to address the novel legal issue presented. 00-2643 (La. 1/26/01), ___ So. 2d ____.9
While the appellate court states July 7, 1997 as the date Moses' claim was filed, this is apparently a typographical error as the actual date it was filed is July 2, 1997, as correctly noted elsewhere in the appellate court's opinion. The other dissenting judge gave no reasons. Also, another judge concurred on the basis that asserting an exception of prescription was procedurally improper in the discovery proceeding invoked under La. Rev. Stat. 40:1299.39.1 D. That issue is addressed in another footnote in this opinion. The parties, supported by the appellate court's reasoning, couch this case as raising the writ grant consideration for conflicting appellate court decisions, Rule X,

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