Jennifer Theriot v. Physicians Medical Center, LLC and XYZ Insurance Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 1468
2021 CW 1109

JENNIFER THERIOT
I
C V
VERSUS

PHYSICIANS MEDICAL CENTER, LLC AND XYZ INSURANCE
COMPANY

Judgment Rendered: OCT 2 7 2022

On Appeal from the 32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 180987

Honorable Juan W. Pickett, Judge Presiding

Gerald Wasserman Counsel for Plaintiff/Appellant,
Leonard M. Berins Jennifer Theriot
Metairie, Louisiana

Thomas C. Cowan Counsel for Defendant/ Appellee,
Lydia Habliston Toso Physicians Medical Center, LLC
Metairie, Louisiana

John D. Schoonenberg Counsel for Defendant/ Appellee,
Nicholas Gachassin, III Frederick Rau, M.D.
Barry J. Boudreaux
Lafayette, Louisiana

BEFORE: WHIPPLE, CJ., PENZATO, AND HESTER, JJ.
PENZATO, J.

In this medical malpractice case, plaintiff/appellant, Jennifer Theriot,

appeals a judgment granting exceptions of prescription on the sole issue of

informed consent and dismissing her claims against defendants/ appellees, Dr.

Frederick Rau and Physicians Medical Center, LLC (" PMC"), on the issue of

informed consent with prejudice. In an associated writ, PMC seeks review of a

judgment denying its motion for summary judgment and denying in full its

exception of prescription. For the reasons that follow, we reverse the judgment

granting the exceptions of prescription and dismissing Ms. Theriot' s informed

consent claims, and deny PMC' s application for supervisory writs.

FACTS AND PROCEDURAL HISTORY

In July of 2015, Ms. Theriot' s primary care physician, Dr. Richard Haydel,

referred Ms. Theriot to PMC for a thyroid ultrasound. The thyroid ultrasound

report indicated a solid nodule in the lower pole of the left lobe. On July 29, 2015,

Dr. Haydel called Ms. Theriot and recommended a biopsy of the thyroid nodule

based on the results of the ultrasound. Ms. Theriot selected Dr. Rau, a general

surgeon, from her insurance company' s provider directory, and Dr. Haydel sent a

referral for a biopsy to Dr. Rau.

Following a July 30, 2015 consultation with Dr. Rau, surgery was scheduled

for August 11, 2015. Ms. Theriot alleged that this consultation lasted

approximately five minutes, and Dr. Rau did not discuss with her any surgery,

possible complications, and/ or alternatives, including medication. Ms. Theriot

assumed that Dr. Rau was performing a biopsy, the procedure recommended by

Dr. Haydel.

On August 11, 2015, Ms. Theriot was admitted to PMC. She was

accompanied by her sister, Victoria Cantrelle. After she was brought to the surgery

area and was already administered anesthesia, it was determined that Ms. Theriot

2
had not signed the proper consent forms. A PMC employee asked Ms. Cantrelle,

who had no authority to do so, to sign a consent form on behalf of Ms. Theriot,

which she did. On August 11, 2015, Dr. Rau performed a total thyroidectomy.

Post- operatively, Ms. Theriot experienced hoarseness. She complained of

hoarseness at follow-up visits with Dr. Rau, and according to Ms. Theriot, Dr. Rau

reassured her that he did everything correctly and that it would take time for her

voice to recover. On August 5, 2016, Dr. Rau performed an esophagogastroscopy

at PMC and examined Ms. Theriot' s vocal cords. According to Dr. Rau' s operative

note, "[
t]here did not appear to be any atrophy or paralysis of the cord at all on

exam."

Following the esophagogastroscopy, Ms. Theriot saw Dr. Haydel because of

her continuing shortness of breath and throat pain. Dr. Haydel referred Ms. Theriot

to Dr. Chad Simon, ENT. On August 24, 2016, Dr. Simon performed a fiberoptic

laryngoscopy, after which he advised Ms. Theriot that she had left-sided vocal cord

paralysis and surgery would be required. Dr. Simon referred Ms. Theriot to Dr.

Andrew McWhorter, ENT, who performed a rigid laryngoscopy and

videostroboscopy. Dr. McWhorter diagnosed Ms. Theriot with the following:

dysphagia, oropharyngeal phase; dysphonia; unilateral partial paralysis of vocal

cords or larynx; dyspnea, unspecified type; and irritation of palate. Ms. Theriot

underwent surgery on February 27, 2017, to repair her paralyzed vocal cords.

On July 19, 2017, Ms. Theriot requested the formation of a Medical Review

Panel (" MRP"), naming Dr. Rau and PMC as defendants. By letter dated

September 5, 2017, Ms. Theriot was advised that PMC was not a qualified health

care provider. She then filed a petition for damages against PMC on September

22, 2017, alleging that PMC " was responsible for the acts of its employees and

physicians that violated the standard of care by allowing Patient Consent Forms to

be executed by a patient without providing any explanation by a medical

3
professional of the risks of anesthesia and/or surgery."

On May 14, 2019, the MRP issued its opinion concerning Ms. Theriot' s

claims, finding there was a question of fact as to the pre -operative discussions

between Dr. Rau and the patient regarding treatment options and the material risks

of a biopsy or thyroidectomy; as there was no pre -operative signed written consent

by Ms. Theriot, the adequacy of verbal consent was a question of fact bearing on

liability.

On June 24, 2019, Ms. Theriot filed a supplemental and amending petition

for damages, adding Dr. Rau as a defendant. In her petition, Ms. Theriot alleged

that Dr. Rau was indebted " jointly, severally and in solido" with PMC for his

failure to comply with the appropriate standard of care. She alleged that Dr. Rau

failed to conduct proper testing to confirm the need for a thyroidectomy. She

further alleged that PMC' s pre- op checklist documented the failure of Dr. Rau and

PMC' s personnel to abide by the pre- procedure verification process prior to

surgery, and that Dr. Rau and PMC were placed on notice that the proper consent

forms were never signed prior to Ms. Theriot' s surgery. Ms. Theriot alleged that

prior to the August 11, 2015 surgery, she never had any problems with hoarseness

and/or breathing, but after the surgery she immediately experienced hoarseness and

had difficulty breathing; she saw Dr. Rau for follow-up care and was reassured by

him each time that he did everything correctly and that it would take some time for

her voice to get better. Ms. Theriot further alleged that at no time prior to her

appointment with Dr. Simon on August 4, 2016, had she ever been told that her

vocal cords were paralyzed.

On April 19, 2021, PMC filed a motion for summary judgment, arguing that

Ms. Theriot failed to produce an expert witness in support of her claims against

PMC. PMC also filed an exception of prescription, solely arguing the legal theory

of constructive knowledge. According to PMC, Ms. Theriot first became aware of
a potential claim against Dr. Rau and PMC on August 12, 2015, when she noticed

hoarseness when she tried to talk. PMC argued that as the initial complaint was

not filed until July 19, 2017, her claims against PMC were prescribed as a matter

of law. PMC attached an excerpt from Ms. Theriot' s deposition to its

memorandum in support of its exception of prescription, highlighting the following
exchange:

Q: So when was the first time that you had some notion or
idea that maybe Dr. Rau had done something wrong, you know, like
what you alleged in the lawsuit?

A: The day after I got back home from the surgery when I
tried to talk and it was like hoarseness.

On June 8, 2021, Dr. Rau filed his own exception of prescription, based on

the same arguments advanced by PMC in its exception.

Ms. Theriot opposed the defendants' exceptions of prescription, contending

that Dr. Rau reassured her during her follow-up care immediately after the surgery

and subsequent visits that the hoarseness would get better. Ms. Theriot argued that

the " continuing treatment rule"' was applicable as she was lulled into a course of

inaction by Dr. Rau' s reassurances to her.

Prior to the hearing on the exceptions and the motion for summary

judgment, Ms. Theriot filed a second supplemental and amending petition, which

added a subsection to include in the body of the petition a portion of the MRP

complaint, which was attached to the original petition. The added subsection

outlined the series of events wherein Ms. Theriot claims she first learned of the

medical malpractice committed by the defendants. Ms. Theriot alleged in this

Under the " continuing treatment rule," prescription will run against a plaintiff who has
knowledge that her condition may be related to a physician' s improper treatment " only if there is
no effort by the physician to mislead or cover up information available to the plaintiff through
inquiry or professional medical or legal advice during the continuing treatment." Mitchell v_
Baton Rouge Orthopedic Clinic, L. L.C., 2021- 00061 ( La. 10110121), 333 So. 3d 368, 375- 76,
reh' g denied, 2021- 00061 ( La. 1128122), cL Curter v. Haygood, 2004- 0646 ( La. 1119105), 892
So. 2d 1261, 1273.

5
second supplemental and amending petition that the August 24, 2016 examination

by Dr. Simon was the first notice to her that the medical treatment provided by Dr.
Rau was below the standard of care and resulted in permanent harm to her. Ms.

Theriot further included the dates she saw Dr. Rau for follow-up care and was

reassured by him that he did everything correctly. According to her second

supplemental and amending petition, she saw Dr. Rau for follow-up care and

continuing care in October 2015, December 2015, March 2016, June 2016, and

August 2016, and was reassured by him that he did everything correctly and that it

would take some time for her voice to get better. A hearing was set for July 19,

2021, for the defendants to show cause if they opposed the filing of Ms. Theriot' s

second supplemental and amending petition. Prior to the date of the hearing, both

Dr. Rau and PMC answered Ms. Theriot' s second supplemental and amending

petition in the form of a general denial.

On July 19, 2021, a hearing was held on the exceptions of prescription filed

by Dr. Rau and PMC, and the motion for summary judgment filed by PMC. At the

hearing, the defendants argued that separate prescriptive periods applied to Ms.

Theriot' s informed consent claims and her claims of malpractice with regard to the

surgery. The defendants focused on the consent issue, abandoned their claims of

malpractice regarding the surgery, and argued that Ms. Theriot' s claims as to lack

of consent were clearly prescribed, The trial court overruled the exceptions of

prescription on the issue of malpractice with regard to the surgery and granted the

exceptions of prescription on the issue of consent. The trial court denied PMC' s

motion for summary judgment. On August 18, 2021, the trial court signed a

judgment in accordance with its oral rulings, granting the defendants' exceptions

on the sole issue of informed consent, denying PMC' s motion for summary

judgment, and designating the judgment as a final judgment as contemplated by

La. C. C. P. art. 1915. Ms. Theriot appealed. PMC filed an application for a

31
supervisory writ of review. PMC' s writ was referred to this panel, as the panel to

which the appeal was assigned. Theriot a Physicians Medical Center, LLC and

XYZ Insurance Company, 2021 CW 1109 ( La. App. 1 Cir. 1216121).

Upon examination of the record, this court determined that the August 18,

2021 judgment lacked appropriate decretal language, and remanded the matter to

the trial court for the limited purpose of allowing it to sign a new judgment

amending the August 18, 2021 judgment to provide proper decretal language.

Theriot v Physicians Medical Center, LLC and XYZ Insurance Company, 2021 CA

1468 ( La. App. 1 Cir. 4/ 11/ 22). An amended final judgment was signed on April

18, 2022, which included the dismissal of Ms. Theriot' s claims on the issue of

informed consent.

I. Ms. Theriot' s Appeal

On appeal, Ms. Theriot contends the trial court erred as follows:

1. In granting defendants' exceptions of prescription at a hearing when it stated

that Ms. Theriot' s suit on the issue of informed consent is prescribed;

2. in granting exceptions of prescription based on informed consent that was

never raised in the pleadings or the exceptions by either of the defendants;

3. In granting the exceptions of prescription based solely on Ms. Theriot' s

statement the day after surgery she experienced hoarseness when this

isolated statement does not amount to actual or constructive notice of

malpractice;

4. In failing to invoke the continuing treatment or relationship rule, a form of

contra non valentem," whereby prescription is suspended when there is

continuous treatment by both Dr. Rau for several months and by PMC when

Ms. Theriot underwent an esophagogastroscopy on August 5, 2016 and was

told that she was fine;

5. In failing to recognize that Ms. Theriot first learned that her vocal cords

7
 were paralyzed when she visited Dr. Simon on August 24, 2016;

6. In failing to recognize that Ms. Theriot first learned of the deficiency in the

surgical consent forms when she retained counsel in February 2017;

7. In granting the exceptions of prescription based on informed consent when

no evidence was presented by any party that Ms. Theriot gave consent to a

thyroidectomy when she thought the surgical procedure would simply be a

needle biopsy.

LAW AND DISCUSSION

A physician has a duty to inform the patient of (1) the nature and purpose of

the procedure, and ( 2) the known material risks that may arise from the noticed

procedure. Richard v Colomb, 2004- 1145, 2004- 1146 ( La. App. 1 Cir. 6129105),

916 So. 2d 1122, 1127, writ denied, 2005- 1939 ( La. 213106), 922 So. 2d 1182.

2
According to Ms. Theriot, her lack of informed consent claim is two- fold. She

alleges that neither Dr. Rau nor PMC informed her that she would be undergoing a

thyroidectomy, as opposed to what she believed was to be a needle biopsy, and

neither advised her of the material risks that may arise during that procedure.

Prescription

Louisiana Revised Statutes 9: 5628 establishes the time for filing medical

malpractice actions. The statute sets forth two prescriptive limits, namely one year

from the date of the alleged act or one year from the date of discovery with a three-

year limitation from the date of the alleged act, omission, or neglect to bring such

claims. Carter v Haygood, 2004- 0646 ( La. 1119105), 892 So. 2d 1261, 1268.

Informed consent is a claim that can be separate from a medical malpractice claim. Patterson
v, Peterson, 2019- 1604 ( La. App. 1 Cir, 813120), 310 So. 3d 155, 190, writ denied, 2020- 01076
La. 11110120), 303 So. 3d 1041. Such claims for lack of consent fall under the purview of the
Medical Malpractice Act. Lugenbuhl v, Dowling, 96- 1575 ( La. 10110197), 701 So. 2d 447, 452.
See also Wilson ex rel. Wilson v. Landry, 98- 2365 ( La. App. 1 Cir. 12128199), 748 So. 2d 655,
658, writ denied, 2000- 0260 ( La. 3/ 24100), 758 So. 2d 155.

K
 Prescription commences when a plaintiff obtains actual or constructive

knowledge of facts indicating to a reasonable person that he or she is the victim of

a tort. Campo v Correa, 2001- 2707 ( La. 6121102), 828 So. 2d 502, 510.

Constructive knowledge is whatever notice is enough to excite attention and put

the injured party on guard and call for inquiry, Id. at 510- 11. Such notice is

tantamount to knowledge or notice of everything to which a reasonable inquiry

may lead. Id. at 511. Such information or knowledge as ought to reasonably put

the alleged victim on inquiry is sufficient to start running of prescription. Id.

Nevertheless, a plaintiff's mere apprehension that something may be wrong is

insufficient to commence the running of prescription unless the plaintiff knew or

should have known through the exercise of reasonable diligence that his problem

may have been caused by acts of malpractice. Id. Even if a malpractice victim is

aware that an undesirable condition has developed after the medical treatment,

prescription will not run as long as it was reasonable for the plaintiff not to

recognize that the condition might be treatment related, 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. Id.

Burden of Proof

The burden of proving prescription ordinarily lies with the party raising the

exception; however, when prescription is evident from the face of the petition, the

burden shifts to the plaintiff to show the action has not prescribed. Mitchell v

Baton Rouge Orthopedic Clinic, L.L. C., 2021- 00061 ( La. 10110121), 333 So. 3d

368, 374, reh' gd_
enied, 2021- 00061 ( La, 1128122). A petition is not prescribed on

its face if it is filed within one year of discovery and particularly alleged facts show

the patient was unaware of malpractice before that date, so long as the filing delay

was not willful, negligent, or unreasonable. In re Medical Review Panel ofHeath,

E
2021- 01367 ( La. 6129122), 345 So. 3d 992, 996. Whether the complaint is

prescribed on its face is purely a question of law, subject to de novo review. Id. at

996- 97.

To determine who bears the burden of proof, the following questions must

be answered: ( 1) was the complaint filed within one year of the date of the alleged

acts of malpractice? ( 2) if not, was the complaint filed within one year of the date

of discovery of the alleged acts of malpractice? Id. If the plaintiff relies upon

discovery as the trigger of prescription, the following must be answered: ( 1) did

the plaintiff allege with particularity he or she was unaware of the malpractice

prior to the alleged date of discovery; and ( 2) was the plaintiff's delay in

discovering the malpractice reasonable? The petition must state with particularity

the act of alleged malpractice and the date it was discovered, and these questions

must be answered solely upon the allegations of the complaint. Id.

Ms. Theriot contends that the first time she learned that a thyroidectomy was

performed and not a needle biopsy was " sometime around February 2017" when

she sought counsel for her medical issues and obtained a copy of her medical

records.
However, her petitions do not contain this alleged date of discovery, nor

do the petitions contain any allegations that Ms. Theriot was unaware of the lack of

informed consent prior to February 2017. Thus, we find Ms. Theriot' s informed

consent claim is prescribed on its face, and she had the burden of proving this

claim was not prescribed.'

3 With regard to her claim that her vocal cords were paralyzed during the surgical procedure, Ms.
Theriot alleged in her second supplemental and amending petition that she first learned of the
medical malpractice after the result of the fiberoptic laryngoscopy performed by Dr. Simon on
August 24, 2016; she saw Dr. Rau for follow-up care and continuing care in October 2015,
December 2015, March 2016, June 2016, and August 2016, and was reassured by him each time
that he did everything correctly and that it would take some time for her voice to get better; and
on August 5, 2016, Dr. Rau performed an esophagogastroscopy and told her that there was
nothing wrong.

10
Standard ofReview

The standard of review of a judgment pertaining to an exception of

prescription turns on whether evidence is introduced at the hearing of the

exception. Mitchell, 333 So. 3d at 373. Louisiana Code of Civil Procedure article

931 provides that evidence may be introduced to support or controvert an

exception of prescription.
If no evidence is submitted at the hearing, the exception

must be decided upon the facts alleged in the petition with all allegations accepted

as true. Id. When evidence is introduced at the hearing, this court need not accept

the allegations of the petition as true, and the trial court' s decision is reviewed

under a manifest error -clearly wrong standard of review. Id.

Exceptions ofPrescription

As noted above, at the July 19, 2021 hearing, the defendants abandoned their

exceptions of prescription regarding Ms. Theriot' s claims of malpractice with

regard to the surgery, focusing instead on her informed consent claims. Counsel

for PMC recognized that Ms. Theriot' s argument that on- going treatment

suspended the running of prescription with regard to malpractice for the surgery

was supported " by case law." Counsel for Dr. Rau acknowledged that whether the

surgery fell below the standard of care was " a live issue, ... that has to go to trial."

The defendants argued that the malpractice that may have occurred during surgery

was a separate issue from consent to the surgery, and Ms. Theriot " had to — by

common sense, know within two weeks, what procedure she had." During the

hearing, the trial court inquired as to when Ms. Theriot first learned that she had

something other than a needle biopsy. Counsel for Dr. Rau responded that while

Ms. Theriot testified that she thought she was going in for a needle biopsy, there

was nothing in Dr. Rau' s chart to show that a needle biopsy was ever discussed.

Following the arguments of counsel, the trial court ruled as follows:

11
 As far as the issue of medical malpractice, the Court finds that
this matter has not prescribed. As far as falling below a standard of
care, the Court is going to overrule the Prescription Exception.

The reason why the Court is going to do that, the Court based
on the evidence and the exhibits that were attached, shows that there
was continuing treatment. And I think that would invoke the
continuing treatment rule that [ Ms. Theriot' s counsel] was talking
about -- which is an Exception to Prescription requires the plaintiff to

establish that there was a continuing treatment relationship, with the
physician,
which is more than a perfunctory — during which the
physician engaged in conduct which served to prevent the patient
from availing herself of the cause of action, such as attempting to
rectify an alleged act.

And here, it looks like, you know, Doctor Rau was trying to
treat the patient, to the best of his ability. But that patient -physician
relationship prevented her from, earlier on, seeking second opinions.

Also the Court is going to sustain the Prescription Exception,
when it comes to consent. Whether or not she signed a consent form
to have the surgery; that is something she should have known on the
day of surgery — at least, she should have known within the
prescriptive period.

So, this Court will sustain that objection.

In connection with the hearing, a copy of Ms. Theriot' s deposition and Dr.

Rau' s medical chart were introduced into evidence. Counsel for Ms. Theriot also

introduced into evidence the August 5, 2016 operative report relating to the

esophagogastroseopy, which was contained within Dr. Rau' s medical chart. Since

evidence was introduced at the hearing, we review the trial court' s decision

granting the defendants' exceptions of prescription on the issue of consent under

the manifest error -clearly wrong standard.'

In her deposition, Ms. Theriot testified that she first consulted with Dr. Rau

on July 30, 2015. According to Ms. Theriot, Dr. Rau walked into the room she

was in, opened her file and read that she needed a needle biopsy, closed the file

and said " we can do this tomorrow." Ms. Theriot testified that she could not " do

it" until the following week. According to Ms. Theriot, Dr. Rau did not discuss the

Neither defendant filed an answer to the appeal challenging the trial court' s ruling on " the issue
of medical malpractice" with regard to the surgery. See La. C. C. P. art. 2133.

12
ultrasound report with her, nor did he discuss options. Ms. Theriot testified that

Dr. Rau sent orders to PMC, and on August 6, 2015, Ms. Theriot went to PMC

where she signed a consent for anesthesia for the " procedure" she thought was a

needle biopsy.' Ms. Theriot testified that nobody read the consent form to her; she

signed it without reading it and returned it to the person who handed it to her. Ms.

Theriot further testified that on August 11, 2015, an anesthesiologist came in to put

her to sleep prior to the procedure, but did not indicate that she was there for a

thyroidectomy. Ms. Theriot did not recall seeing Dr. Rau on August 11, 2015,

prior to the procedure, and testified that he never explained to her that he

recommended a thyroidectomy or told her the risks and complications of a

thyroidectomy. According to Ms. Theriot, Dr. Haydel told her that she was going

to Dr. Rau for a needle biopsy, and so she knew " that' s what I was going to be

getting. I didn' t know I was going to be getting a removal of my thyroids." Ms.

Theriot testified that her complaint against Dr. Rau was that the procedure " was

supposed to be a needle biopsy. He should have checked my paperwork— or

explained anything deeper— he should have when I went to my first visit about

what he was going to do or what could happen. He should have talked to me about

all of that and he didn' t. I was a waitress 36 years. If he told me I' d be hoarse,

there' s no way I could have continued." According to Ms. Theriot, she first

learned that there was a timeout during the surgery and her sister signed a consent

form when she talked to an attorney.'

5 The consent form, referenced by Dr. Rau in his brief, was not introduced into evidence in
connection with the exception.

6 On appeal, Ms. Theriot relies upon Ms. Cantrelle' s deposition in support of her argument that
Ms. Cantrelle did not have authority to sign the consent form and never told Ms. Theriot that she
signed the form. However, Ms. Cantrelle' s deposition was not introduced into evidence in
connection with the exceptions of prescription.

13
 Ms. Theriot testified that the day she got home after the surgery, she

experienced hoarseness when she tried to talk. She testified that she continued to

see Dr. Rau because " he kept telling me to come." According to Ms. Theriot:

I' d go for my visit and I' d asked him about my hoarseness and my
breathing. He said as far as your breathing, he says lose weight and
maybe you can breathe better.... [ H] e gave me steroid shots a couple
of my visits to see him. And the voice and the breathing, the
hoarseness wasn' t getting better. But he said ... I don' t know what to
tell you because ... I know I didn' t do anything. So he said you had to
do something. I said, well, what could I have done? He said ... I don' t
know, but it wasn' t me. So it had to be you.... After that ... I gave up.
I stopped going.

Ms. Theriot' s medical records indicate that she underwent an

esophagogastroscopy, performed by Dr. Rau, on August 5, 2016, at PMC, which

indicated no " atrophy or paralysis of the [ vocal] cord at all on exam." Ms. Theriot

testified in her deposition that following the esophagogastros copy, Dr. Rau told her

there wasn' t a thing wrong with my vocal cord and he didn' t see no reason why I

was having problems breathing or having hoarseness. He said that I was just

making -- he thought I was just making that up."

In her brief to this court, Ms. Theriot contends that she was not given an

opportunity to oppose the issue of informed consent because neither defendant

raised any defense of prescription on the issue of informed consent in their

exceptions heard by the trial court on July 19, 2021. At the July 19, 2021 hearing,

Ms. Theriot did not object to the defendants' argument that any malpractice that

may have occurred during the surgery was a separate issue from consent to the

surgery. Because Ms. Theriot did not raise this issue in the trial court, this court

will not consider an issue raised for the first time on appeal. See Dougherty u

Dougherty, 2021- 0433 ( La. App. 1 Cir, 3129122), 341 So. 3d 669, 679 n.20.

Relevant hereto, Ms. Theriot assigns as error the trial court' s failure to

recognize that she first learned of the deficiency in the surgical consent forms

when she retained counsel in February 2017, and its granting of the exceptions of

14
prescription based on informed consent when no evidence was presented that she

gave consent to a thyroidectomy when she thought the surgical procedure would

simply be a needle biopsy. Ms. Theriot also assigns as error the trial court' s failure

to invoke the " continuing treatment rule" when there was continuous treatment by

both Dr. Rau for several months and by PMC when Ms. Theriot underwent an

esophagogastroscopy performed by Dr. Rau on August 5, 2016, and was told by

Dr. Rau she was fine.

We first address Ms. Theriot' s contention that her suit is not prescribed

because she did not know she had a thyroidectomy until she sought legal

representation in February 2017. The law of prescription does not require that the

patient be informed by a medical practitioner or an attorney of possible malpractice

before the prescriptive period begins to run. Medical Review Panel Proceeding of

Williams v Lewis, 2008-2223 ( La. App. I Cir. 5113109), 17 So. 3d 26, 30. When a

party has sufficient information to incite curiosity, or put a reasonably minded

person on guard and call for inquiry, she has the constructive knowledge necessary

to start the running of prescription. Id. It is also well- settled that the prescriptive

period for a medical malpractice cause of action arises upon the occurrence of the

injury when the damages are immediately apparent. Mitchell, 333 So. 3d at 381.

In support of her contention that her suit is not prescribed, Ms. Theriot cites

Nestor v Louisiana State University Health Sciences Center in Shreveport, 40, 378

La. App. 2 Cir. 12/ 30105), 917 So. 2d 1273, writ denied, 2006- 0221 ( La. 4/ 24/ 06),

926 So. 2d 551. In Nestor, the plaintiff brought a medical malpractice claim

arising from back surgery that was performed at a different level than originally

indicated on the consent form. The Louisiana Second Circuit Court of Appeal

affirmed the trial court' s denial of the defendant' s exception of prescription as to

the issue of informed consent for the following reasons:

15
 W] e find no evidence that clearly establishes that the Nestors
understood that surgery was performed at a different level than
originally shown on the consent form and that a complication had
occurred prior to their consultation with Dr. Polin. Moreover, despite
Mrs. Nestor' s testimony that they received copies of the medical
reports every time her husband went to the VA for clinical treatment,
this would not necessarily put a lay person on notice that a surgical
procedure was done differently than agreed to on a consent form.
Such a conclusion would equate to holding a lay person to the same
degree of knowledge as a medical professional. Furthermore, we do
not find that the Nestors' ignorance of these facts was wilful [ sic],

negligent, or unreasonable.

Id. at 1282.

Ms. Theriot argues that she thought she was undergoing a needle biopsy on
August 11, 2015. Neither Dr. Rau nor any nurse from PMC approached Ms.

Theriot prior to her surgery asking her to sign a surgical consent form. Ms. Theriot

was never informed she was having a thyroidectomy and never gave consent to a

thyroidectomy. Ms. Theriot contends that while the trial court opined that she

should have known whether she signed a consent form on the day of surgery or

within the prescriptive period, she did not know she was required to sign a consent

form, which is essentially for the benefit of the physician and hospital. According

to Ms. Theriot, she was always under the impression that she was having a needle

biopsy that was suggested by both the ultrasound and Dr. Haydel' s referral to Dr.

Rau. She firmly stated that she did not know she had a thyroidectomy until she

sought legal representation in February 2017.

Dr. Rau argues that the trial court correctly determined that Ms. Theriot had

sufficient notice that she did not sign a consent form to commence the running of

prescription when she began to experience complications on August 11, 2015.

According to Dr. Rau, it is unreasonable to suggest that Ms. Theriot did not know

of the lack of consent until her attorney obtained the medical chart. Dr. Rau cites

Jimerson v Majors, 51, 097 ( La. App. 2 Cir. 1111117), 211 So. 3d 651, in support of

his contention that the trial court was not manifestly erroneous in finding that Ms.

16
Theriot' s informed consent claim is prescribed. Jimerson involved a medical

malpractice claim filed on September 2, 2010, against the obstetric ian/ gynecologist

who performed a hysterectomy on the plaintiff on August 19, 2008. The trial court

granted an exception of prescription, and on appeal, the plaintiff argued that the

discovery rule applied to suspend prescription because she did not discover that the

2008 hysterectomy should not have been performed until November 2009, when

another specialist informed her that it was negligent to perform a hysterectomy on

a 24 -year-old woman. Id. at 655- 56. The Second Circuit Court of Appeal affirmed

the ruling, finding the trial court was within its discretion in determining that a

reasonable person with the plaintiff' s education and intelligence ( she was a

registered nurse on the labor and delivery unit of a hospital) would have been put

on notice long before November 2009. The court noted that from August 2008 to

June 2009, the plaintiff made 24 visits to other specialists. In addition, the plaintiff

stated in her deposition that three weeks after the hysterectomy, she was informed

by a specialist in urology that her current condition was due to complications from

the hysterectomy surgery. Id. at 657. Dr. Rau also relies on Davidson a Glenwood

Resolution Authority, Inc., 47, 640 ( La. App. 2 Cir. 1/ 23/ 13), 108 So. 3d 345,

wherein the Second Circuit Court of Appeal affirmed the trial court' s finding that

the plaintiff' s medical malpractice claim, filed on April 24, 2009, was prescribed.

On April 6, 2006, the defendant doctor performed surgery on the plaintiff to repair

an abdominal aortic aneurysm; a piece of a retractor used during the surgery was

inadvertently left in the plaintiff' s abdominal cavity. On August 15, 2006, a CT

scan revealed a metallic structure in the plaintiff' s pelvis. Id. at 348. The court

noted that the trial court specifically found the defendant doctor, who testified at

the hearing on the exception, to be " very credible" when he testified that he called

the plaintiff after being contacted about the CT scan on August 15, 2006, and told

the plaintiff that he was concerned the metal object in the plaintiff' s pelvis could be

17
related to the surgery he performed. Id. at 351.

PMC argues that Ms. Theriot' s assertion that she first learned from her

attorney on February 17, 2017, that she underwent a thyroidectomy rather than a

needle biopsy is unsupported by the record. PMC points to an August 4, 2015

phone memo contained in Ms. Theriot' s medical records that reflects a phone call

to " FR" from " pt" with a phone number and a notation "
schedule thyroidectomy."

PMC also refers to a prescription dated October 29, 2015, with Ms. Theriot' s

name on it for " Synthroid." The page from Ms. Theriot' s medical records contains

a notation, "
E890 post surgical thyroidectomy." Thus, PMC contends that Ms.

Theriot had knowledge of the precise nature of her surgery on October 29, 2015.

We note that there is no evidence that Ms. Theriot called to " schedule

thyroidectomy." According to her testimony, she scheduled a procedure that " was

supposed to be a needle biopsy." Nor is there evidence that Ms. Theriot received

the October 29, 2015 prescription contained in her medical records, or that the

notation was on the original prescription. Moreover, there is no evidence in the

record that Ms. Theriot knew a consent form was required before surgery,' nor is

there evidence that the difference between a needle biopsy and a thyroidectomy is

immediately apparent, such that the prescriptive period began on the day of

surgery. See Mitchell, 333 So. 3d at 381.

Prescription will not run as long as it was reasonable for the plaintiff not to

recognize that the condition might be treatment related. 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

7 It is unclear from the record whether the date of the prescription is " 10129115" or " 10125115."

8 We note that La. R.S. 40: 1157. 1 does not require written consent to medical treatment. Rather,
pursuant to La. R.S. 1157. 1( A), such written consent, if obtained, is presumed to be valid and
effective. Where consent is obtained other than in accordance with La. R.S. 1157. 1( A), such

consent is subject to proof according to the rules of evidence in ordinary cases. La. R. S.
1157. 1( C).

IV
conduct. Campo, 828 So. 2d at 511. Here, Ms. Theriot testified that she completed

the 11th grade and worked as a waitress. Thus, her education and intelligence

regarding medical procedures are clearly distinguishable from the plaintiff in

Jimerson, who was a registered nurse on the labor and delivery unit of a hospital.

Moreover, unlike in Davidson, there is no testimony from Dr. Rau regarding his

interactions with Ms. Theriot. According to Ms. Theriot' s testimony, she received

no explanation from Dr. Rau as to the nature of either of the procedures at issue.

Relying on a theory of common sense, the defendants offered no evidence to the

contrary. Similar to Nestor, in this case there is no evidence that Ms. Theriot

understood that Dr. Rau was performing a different procedure than the one for

which Dr. Haydel referred her. Nor is there any evidence that Ms. Theriot was

placed on notice sufficient to excite attention and put her on guard and call for

inquiry that a different procedure was performed prior to the time that she returned

to Dr. Haydel following the August 5, 2016 esophagogastroscopy, and he referred

her to Dr. Simon.' Furthermore, there is no evidence that Ms. Theriot' s ignorance

of these facts was willful, negligent, or unreasonable. Based on the record before

us, we find that Ms. Theriot met her burden of proving she discovered the lack of

informed consent less than one year before she filed her medical malpractice

complaint on July 19, 2017, and that the delay in discovery was reasonable. Thus,

we find the trial court erred in granting the defendants' exceptions of prescription

on the issue of informed consent, and dismissing these claims with prejudice.

Based on this finding, we pretermit discussion of the applicability of the

continuing treatment rule." Accordingly, we reverse the trial court' s April 18,

3 Ms. Theriot also assigns as error the trial court' s failure to recognize that she first learned that
her vocal cords were paralyzed when she visited Dr. Simon on August 24, 2016. As the sole
issue on appeal is whether the trial court was clearly wrong in granting the defendants'
exceptions of prescription on the issue of informed consent, we do not address any issues relating
to the prescriptive period as it relates to any malpractice that may have occurred in connection
with the performance of the surgery.

19
2022 judgment granting the exceptions of prescription on the issue of informed

consent, and dismissing Ms. Theriot' s informed consent claims with prejudice.

U. PMC' s Application for Supervisory Writ of Review10

In determining whether to exercise supervisory jurisdiction, this court looks

to the criteria set forth by the Louisiana Supreme Court in Herlitz Construction

Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 ( La. 1981)

per curiam). In that case, the Louisiana Supreme Court held that appellate courts

should exercise supervisory jurisdiction in cases where the overruling of the

exception is arguably incorrect, when a reversal will terminate the litigation, and

when there is no dispute of fact to be resolved, such that judicial efficiency and

fundamental fairness to the litigants would dictate that the merits of the application

for supervisory writs should be decided in an attempt to avoid the waste of time

and expense of a possibly useless future trial on the merits. Id.

In its application for supervisory writs, PMC contends the trial court erred as

follows:

1. In denying its motion for summary judgment when the sole issue pertaining

to negligence, i.e., informed consent, had prescribed;

2. In denying its motion for summary judgment as there was no expert

testimony that the nurses breached the standard of care regarding the

medical treatment of the patient; and

3. In denying the exception of prescription regarding the medical malpractice

cause of action when there was no " continuing treatment" relationship to

meet the exception of contra non volentern.

10 On August 12, 2021, PMC filed its notice of intention to apply for supervisory writ from the
trial court' s July 19, 2021 ruling denying its motion for summary judgment. The trial court
signed a judgment in accordance with its oral ruling on August 18, 2021. As noted above, this
court determined that the August 18, 2021 judgment lacked appropriate decretal language and
remanded the matter to the trial court. On April 18, 2022, the trial court signed an amended final
judgment.

20
 The underlying premise of PMC' s application for supervisory writs is that

Ms. Theriot asserted two separate and independent causes of action, the alleged

failure of PMC and Dr. Rau to obtain informed consent, and the alleged medical

malpractice of Dr. Rau in performing the thyroidectomy; and that Ms. Theriot

made no allegations that PMC committed medical practice during the surgery that

caused Ms. Theriot' s injuries. Thus, PMC contends that as a result of the trial

court' s ruling granting its exception of prescription on the issue of informed

consent, it is entitled to summary judgment. According to PMC, while Ms.

Theriot' s expert, Dr. Herbert Rubin, testified regarding nursing failure with

informed consent, Dr. Rubin did not testify that the nurses committed medical

malpractice with regard to the surgery. PMC further argues that it cannot be

vicariously Iiable for the independent acts of alleged malpractice by Dr. Rau in

performing the thyroidectomy because PMC did not have the right of control over

the provision of medical care to Ms. Theriot. PMC further contends that any

malpractice action relating to Dr. Rau' s performance of the thyroidectomy has

prescribed as to PMC because Ms. Theriot has failed to establish a continuing

treatment relationship with PMC after August 11, 2015.

Taking into consideration our finding that the trial court erred in granting the

defendants' exceptions of prescription on the issue of informed consent, we find

that a review of the merits of PMC' s writ application would not terminate the

litigation. PMC' s writ application was based upon the premise that its exception of

prescription on the issue of informed consent was granted. As Ms. Theriot' s

informed consent claims against both Dr. Rau and PMC remain pending,

consideration of the writ application would be judicially inefficient and would

result in piecemeal litigation. See Champagne a USAA Casualty Insurance

Company, 2016- 1079 ( La. App. 1 Cir. 41911$), 2018 WL 1723044, * 4

unpublished). Therefore, we decline to exercise our supervisory jurisdiction, and

21
deny PMC' s writ application.

CONCLUSION

For the above and foregoing reasons, the trial court' s April 1. 8, 2022

amended judgment granting exceptions of prescription on the sole issue of

informed consent filed on behalf of defendants, Dr. Frederick Rau and Physicians

Medical Center, LLC, and dismissing the claims of the plaintiff, Jennifer Theriot,

on the issue of informed consent is reversed. The judgment is affirmed in all other

respects.
The application for supervisory writs filed by defendant Physicians

Medical Center, LLC, is denied. Costs are assessed equally against the defendants,

Dr. Frederick Rau and Physicians Medical Center, LLC.

JUDGMENT REVERSED IN PART; WRIT DENIED.

22