Personal Injury Case Delves into Medical Malpractice Difficulties
The following very interesting and compelling question by plaintiffs, and the contingent commentary by the court, is articulated in this appeal to the Second Circuit Court of Appeals in Louisiana: "Does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice?"
This question arises in the context of the Second Circuit's consideration of the plaintiff's appeal of the trial courts "judgment of defendants, sustaining an exception of prescription as to the malpractice claim filed by Joseph Lee Amos prior to his death and granting summary judgment which dismissed their wrongful death claim." The purpose of this paper is to discuss the question posed by the plaintiff and the Second Circuit's response to that question.
On April 12, 1999, Joseph Lee Amos had his first appointment with Dr. Rebecca Crouch: he was experiencing "occasional rectal bleeding." Mr. Amos "repeatedly complained of similar symptoms in his subsequent visits to Dr. Crouch." Mr. Amos claims that "when he was under Dr. Crouch's care, he was continually ‘hurting a lot' and that the blood was ‘bright red'…The physicians report states that Mr. Amos said that Rebecca Crouch checked down there ‘and (Mr. Amos) was told everything was okay." His final appointment with Dr. Crouch was on January 3, 2000.
On January 11th, 2000 Mr. Amos went to another physician to seek a second opinion due to Mr. Amos's "questions about the quality (or lack thereof) of Dr. Crouch's medical treatment." This visit to another doctor resulted in a diagnosis of colorectal cancer and subsequent treatment for the condition. On April 6, 2001 Amos filed a medical malpractice complaint with the Patient's Compensation Fund against Dr. Crouch and her insurance company for her "failure to recommend and conduct the proper diagnostic testing called for by Mr. Amos's symptoms, which delayed an accurate diagnosis and treatment of his disease."
The medical review panel rendered a decision on February 3, 2003. In the decision the panel articulated the appropriate standard of care in Mr. Amos's circumstances. The panel determined that Dr. Crouch should have "recommended further evaluation and diagnostic tests, including but not limited to ordering a barium enema with proctoscopy or a complete colonoscopy". The panel deferred the issue of breach due to some contested issues of fact. One of the issues was Dr. Crouch's claim that she repeatedly recommended these tests; while Amos denied that she made those recommendations.
Mr. Amos filed a lawsuit on April 26 2003. The trial court granted summary judgment, but the decision was reversed and remanded by the Second Circuit. Upon remand the defendants filed an exception of prescription, claiming that "the filing of the initial medical review complaint was untimely."
The defendants claim that prescription began to run on January 11, when Amos visited another doctor for a second opinion. The plaintiff's claim that May 1, 2001 is the earliest date that prescription should begin to toll, since this is the date that Dr. Crouch terminated her doctor/patient relationship with Mr. Amos. Louisiana Revised Statute 9:5628(A) is as follows:
"No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless 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; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect."
The question "does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice" can be interpreted in more than one way. The inquiry is directed towards the belief of the patient that is receiving the treatment. A clearer articulation of the question would be "does a diagnosis by a doctor rendering a second and correct opinion about a patient, equate to a per se reasonable belief on the part of the patient that the previous treating physicians committed medical malpractice?". The Second Circuit determined that the answer depends "on the particular circumstances of each case."
In the present case, the issue between the two parties is fundamentally whether Mr. Amos claim is permitted by the prescription statute. The disputed matter is when the statute begins to toll: did Mr. Amos file his claim "within one year from the date of discovery of the alleged act, omission, or neglect." "Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicative to a reasonable person that he or she is the victim of a tort… Constructive knowledge is notice enough to excite attention, to put the injured party on guard, and to call for inquiry."
Mr. Amos was a 61 year old man who was working for Dry Crouch as a custodian while he was seeing her as a patient. The plaintiffs claim that this personal relationship, Mr. Amos's age, and his relative unsophistication, all indicate that "Mr. Amos had a more personal trusting relationship with Dr. Crouch than he would have had with an unfamiliar physician." The plaintiff's argue that Mr. Amos had no reason to question Dry Crouch's opinion until she terminated her relationship with him after a phone call on May 1 2000… The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct."
The defendants argue that Mr. Amos had "constructive knowledge that he was the victim of a tort" when he procured the second opinion and was provided with the diagnosis of cancer. They argue that although Mr. Amos had a special and trusting relationship with Dr. Crouch, this "does not translate into being unaware that the medical care he received from his doctor/employer was substandard."
The Second Circuit considered the "circumstances" in the case, and affirmed the trial court's decision: "the conclusion of the trial court that Mr. Amos had notice enough to excite attention, to put him on guard and call for inquiry when his cancer was diagnosed on January 11, 2000 is not clearly in error or manifestly wrong". Ultimately, the decision confirms the statement made regarding the lack of a "bright line rule," and sets the precedent for future situations like this; that a determination of prescription in cases of second medical opinions will not automatically render the first per se evidence of malpractice.