In Louisiana, the prescriptive period for filing a medical malpractice claim is one-year from the date the plaintiff knew or should have known about the medical malpractice. However, no claim may be brought more than three years from the date of malpractice. This is commonly referred to as a statute of repose. In certain situations, the prescriptive period may be suspended, such as when a plaintiff files a claim before the medical review panel. A recent decision by the Louisiana Fifth Circuit Court of Appeal illustrates the limited circumstances in which the prescriptive period to file a claim for medical malpractice may be suspended. In that case, the plaintiff, a Louisiana native, injured his right rotator cuff in 2002 while working in Baltimore, MD. Following the accident, he filed a claim for compensation benefits with the Maryland Workers’ Compensation Commission. After plaintiff returned to New Orleans in 2005, he began receiving treatment from Dr. DiGrado who performed shoulder repair surgery in 2010. There were alleged problems with the first surgery and plaintiff underwent a second shoulder surgery Dr. DiGrado in October 2011. Following the second surgery, Dr. DiGrado released plaintiff to maximum medical improvement, which resulted in the suspension of plaintiff’s workers’ compensation benefits.
Plaintiff continued to experience shoulder problems and he began to receive treatment from Dr. O’Brien, who performed a third shoulder surgery in August 2012. Following surgery, plaintiff claimed that he began seeking compensation from Dr. DiGrado. Multiple attorneys refused to represent plaintiff in a medical malpractice action against Dr. DiGrado. During this time, plaintiff reinstituted a claim for workers’ compensation benefits with the Maryland Workers’ Compensation Commission due to the alleged medical negligence of Dr. DiGrado. Plaintiff finally filed suit on February 27, 2015, more than three-years after he had ended his treatment with Dr. DiGrado. In the lawsuit, Plaintiff alleged that Dr. DiGrado performed both surgeries negligently and that he also negligently concluded that he had reached maximum medical improvement, which resulted in Plaintiff losing his workers’ compensation benefits.
Dr. DiGrado filed an exception of prescription asserting that the three-year prescription period to file a medical malpractice claim had expired. In addition, Dr. DiGrado filed an exception of prematurity because plaintiff’s claims were not reviewed by a medical panel, pursuant to La. R.S. 40:1299.47. The exception of prescription was granted and plaintiff appealed. The Court noted that plaintiff’s medical malpractice case had prescribed on the face of the pleadings. The Court further found that plaintiff’s attempt to raise his medical malpractice claims in proceedings before the Maryland Workers’ Compensation Commission did not suspend the prescriptive period to file a medical malpractice claim.
Camp v. DiGrado