Louisiana Appellate Court Dismisses Plaintiff’s Tort Claim Against Health Care Agent for Making Treatment Decisions While Intoxicated

The Louisiana Court of Appeal, Third Circuit, addressed a personal injury case centered on whether the plaintiff timely filed his petition for damages. A peremptory exception applies to personal injury lawsuits that are filed beyond the provided statutory period.  It is a means of defense, used to dismiss or defeat the plaintiff’s demand. In this case, the court analyzed whether the plaintiff had filed his wrongful death petition in a timely manner. A wrongful death claim allows for the victim’s relatives to recover damages suffered due to the victim’s death.


Jeffrey Buelow, a pro se plaintiff, filed a petition against his stepfather, Donald Melvin Roberts, alleging the wrongful death of Mr. Buelow’s mother, Linda Diann Aymond Roberts.  Mrs. Roberts died on July 28, 2009 after being diagnosed and hospitalized with a sickness. Mr. Buelow alleged that while his mother was hospitalized, Mr. Roberts was under the “influence of alcohol.”

Mr. Buelow’s contention was that Mr. Roberts was intoxicated when he signed the “Consent to Withdraw Life-Sustaining Procedures” for Mrs. Roberts. After life support was withdrawn, Mrs. Roberts passed away. Mr. Buelow contended that his mother’s life-sustaining procedures were wrongfully withdrawn by Mr. Roberts, since her disease was curable.

The appellate court stated their standard of review when reviewing a trial court judgment granting a peremptory exception of prescription. If evidence was adduced at the hearing, the standard is manifest error, and if no evidence was adduced, the question is whether the trial court’s decision was legally correct.  The party pleading the exception of prescription must show the claim is prescribed on the face of the pleadings.

In this case, evidence was submitted into the record by Mr. Roberts in support of his exception of prescription. In opposition, the trial court allowed Mr. Buelow to testify. Even though the record contained no documentation in opposition, Mr. Buelow had attached to his brief on appeal a memorandum in opposition to the exception of prescription.  But since this document was not in the record before the court, it could not be part of the appeal.

Applying the manifest error standard, the appellate court turned to Louisiana Supreme Court holdings that set forth this standard.  The test requires determining whether there is any reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong.  The entire record must be reviewed to determine whether the trial court’s finding was manifestly erroneous. In conclusion, the reviewing court must establish whether the judge’s or jury’s conclusion was a reasonable one.

Louisiana law governing a wrongful death action allows a one-year prescriptive period.  The victim’s date of death begins the prescriptive period for the action.   The appellate court stated that Mrs. Roberts’ date of death was July 28, 2009, as set forth in her Certificate of Death filed into evidence at the hearing.  Mr. Buelow did not dispute that his mother, Mrs. Roberts, died on July 28, 2009.  The court stated that the one-year prescriptive period applied here, and therefore July 28, 2010 marked the end of the prescriptive period for filing Mr. Buelow’s petition.

The appellate court found the trial court judge applied the date of July 28, 2010 in error, although it was harmless.  In terms of the lower court taking judicial notice of the calendar for the year 2010, the court stated that this fit within the definition of a “judicially noticed fact,” and it was not subject to reasonable dispute. It was within the discretion of the trial court to take judicial notice of the calendar for 2010.

Finally, the court rejected Mr. Buelow’s assignment of error regarding the trial court’s ability to take judicial notice of the writing on his petition.  The original clerk stamp was notated “10 JUL 33 A8:40.”  The trial court took judicial notice that there was no such date, and the calendar showed July 28, 2010 was a Wednesday.  The trial court also took judicial notice that the clerk’s stamp had not been re-calibrated, and the corrected date of August 2, 2010 was the date of filing the petition.

Mr. Buelow had not presented documents or testimony in opposition to the “Aug. 2” date that was written on his petition. The appellate court stated the trial court was allowed to take judicial notice of the petition as it appeared in the record of proceedings. The trial court also rejected Mr. Buelow’s contention that his attorney did not timely file his petition.  The appellate court stated that the petition was properly dismissed.

In conclusion, the appellate court affirmed the trial court’s judgment dismissing with prejudice Mr. Buelow’s petition against Mr. Roberts due to prescription.

At the Lavis Law Firm – Personal Injury & Accident Attorney, our Louisiana personal injury and wrongful death attorneys provide guidance and representation to injured individuals throughout the state.  Our office provides a free initial consultation and can be reached by calling 866-558-9151.

More Blog Posts:

Louisiana Appellate Court Reverses Summary Judgment in Favor of Defendant When Genuine Issue of Material Fact Remained on One of Plaintiff’s Negligence Claims, Louisiana Injury Lawyer Blog

Louisiana Appellate Court Affirms Jury’s Determination of Comparative Fault and Damages Award for Plaintiff in Multi-Vehicle Collision, Louisiana Injury Lawyer Blog

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