Bordelon v. Med. Ctr. of Baton Rouge - 03-0202 (La. 10/21/03), 871 So. 2d 1075

Rule:

In the context of La. Rev. Stat. Ann. § 9:5801, in the absence of bad faith, a suit filed but not served within 90 days interrupts prescription. Also, La. Rev. Stat. Ann. § 9:5801 clearly provides that where a defendant is dismissed because service was not timely requested, interruption of prescription is considered never to have occurred if a court finds the failure to serve was due to bad faith.

Facts:

This was a medical malpractice case brought by the plaintiff parents Jody and Lora Bordelon on behalf of their minor child, Brandon Bordelon, against defendants Dr. Andrew Zaruski and Medical Center of Baton Rouge for failure to diagnose testicular torsion in December of 1995. After a medical review panel issued an opinion, plaintiffs timely filed suit against defendants. Defendant hospital eventually filed a motion to dismiss for failure to request service. Plaintiffs did not offer any evidence to oppose the motion or to show good cause for the failure to request service. Thus, the trial court granted the motion to dismiss, plaintiffs then filed a second suit against defendant hospital. The latter filed an exception of prescription which was granted with the trial judge finding that the first suit was effectively abandoned by non-service and did not serve to interrupt prescription. The first circuit affirmed in part, reversed in part, and remanded the case to the trial court to allow plaintiffs to amend their petition to allege facts which would demonstrate an interruption of prescription. The second suit was remanded to the district court and the plaintiffs amended their petition, pleading that they had timely filed a first lawsuit which interrupted prescription and adding the physician as a defendant. The defendants filed exceptions raising the objection of prescription, and the trial court again sustained the exceptions and dismissed plaintiffs’ petition. The first circuit court of appeal granted plaintiff’s writ application and reversed, finding that the first suit was filed within the prescriptive period interrupted prescription as long as that suit was pending, and therefore the filing of the second suit before the judgment was signed dismissing the first suit was timely. Defendants appealed. 

Issue:

Was the appellate court correct in finding that the second suit was timely filed?

Answer:

Yes.

Conclusion:

The court affirmed the judgment. The supreme court found that there was no argument or indication that plaintiffs acted in bad faith in failing to serve the defendants, without which, La. Rev. Stat. Ann. § 9:5801 clearly provided that interruption of prescription continued. Thus, contrary to the trial court's reasoning, plaintiffs did not abandon their lawsuit by virtue of their failure to request service in 90 days, as a three-year period of inaction was required for the lawsuit to be deemed abandoned. Therefore, the supreme court concluded that because there was no finding or allegation that the plaintiff's failure to request service in the first lawsuit was due to bad faith, that lawsuit, although dismissed for non-service, served to interrupt prescription such that plaintiffs second lawsuit was timely filed.