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LA: Pharm. Tech. awarded comp. for job injury: hospital failed to file 'affirmative defense'.

CASE FACTS: Richarda Mesh was employed by Christus St. Patrick Hospital as a pharmacy technician. She suffered an injury to her left knee on February 14, 1999. She filed a Disputed Claim for Workers' Compensation on October 11, 1999, after she was denied medical treatment prescribed by her orthopedic surgeon, Dr. Lynn Foret. In response, the hospital answered her claim and filed an exception of insufficiency of process. On June 14, 2002, the claimant filed a Supplemental and Amended Petition for Compensation Benefits after she aggravated her knee injury. The hospital denied the surgical treatment prescribed by Dr. Foret. The matter proceeded to a hearing on the merits on January 19, 2005, after which the workers' compensation judge found that the employee's claim had not been subject to prescription and awarded her compensation benefits. A judgment was rendered on March 11, 2005. The hospital appealed the judgment.

COURT'S OPINION: The Court of Appeal of Louisiana all firmed the judgment of the workers' compensation judge. The court held, inter alia, that there was no error in the workers' compensation judge's finding that the employee's amended petition was not prescribed. The employee's original Disputed Claim for Compensation put the hospital on notice that she had suffered a work-related left knee injury for which it subsequently authorized medical treatment. Since the employee's amended petition arose out of that same factual situation as her original claim, the court held that the workers' compensation judge did not err in finding that the amended petition related back to the employee's original timely filed claim. The court noted that the hospital never filed an exception of prescription. The peremptory exception of prescription may only be raised by the party propounding it and it must be specifically pled through a formal, written exception. Many defenses in many types of cases are "affirmative defenses" so-called, meaning that unless they are specifically pleaded as a defense to a claim cannot be raised at a later time. Some of those defenses are bankruptcy, the statute of limitations (also known as prescription) and laches, without limitation. Accordingly, a defendant in a civil case can have a discharge in bankruptcy as a bona fide defense to a creditor's suit. However, if he fails to plead his discharge in bankruptcy as an affirmative defense, he has lost the opportunity to interpose it as a defense at a latter time. If the hospital had a valid defense to the employee's claim, it failed to properly plead that defense. This case should serve as a caveat to all hospital administrators and their attorneys. Mesh v. Christus St. Patrick Hospital, No. 05-674 (La. App. Cir.3 12/30/2005) So.2d--LA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Hospital Law Decisions of Note
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Date:Feb 1, 2006
Words:570
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