Borel v. Young - 07-0419 ( La. 7/1/08), 989 So. 2d 42

Rule:

It is evident that the Louisiana Medical Malpractice Act, La. Rev. Stat. Ann. § 40:1299.41, et seq., took cognizance of the need to suspend prescription and fully protects plaintiffs who would otherwise suffer the detrimental effect of liberative prescription. Because the Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider prior to panel review, the act specifies that the filing of a request for review before a panel suspends prescription. Moreover, as provided by statute, the filing of the complaint prevents prescription from lapsing during the pendency of the review process and further suspends prescription from the time of filing until ninety-days following notification to the claimant or his attorney of the panel opinion. After reviewing these special provisions, it is clear that the legislature has equitably provided for suspension to aid the plaintiff in the medical malpractice arena who is prevented by law from the outset from filing suit against the qualified health care provider. Thus, considering the doctrinal underpinnings for the existence of the rules of suspension, it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to synergistically benefit the plaintiff.

Facts:

In April 1999, an ultrasound disclosed the presence of a mass in the left lower abdomen of Mary Borel. Mrs. Borel's internist, Dr. Clinton Young, referred her to Dr. Aldy Castor, an OB/GYN, for surgical evaluation. Dr. Castor recommended surgery. Mrs. Borel was admitted to Lafayette General Medical Center ("LGMC") on August 18, 1999. The following day, August 19, 1999, Dr. Castor performed a left ovarian cystectomy and appendectomy. Mrs. Borel tolerated the procedure well, but her condition began to deteriorate rapidly the next day. By late afternoon, she was moved to ICU, intubated and placed on a ventilator. Mrs. Borel was diagnosed with congestive heart failure of unknown cause. On August 21, 1999, Drs. Castor and Kinchen performed an exploratory laparotomy for possible pelvic abcess. Mrs. Borel was placed on antibiotics, and Dr. Gary Guidry was consulted for pulmonary management. Her condition did not improve. On August 25, 1999, after developing multi-organ failure, Mrs. Borel was returned to surgery. Thereafter, she remained on antibiotic therapy, but continued to have difficulty oxygenating and remained unresponsive. On October 15, 1999, she was transferred to St. Brendan's Long Term Care Facility, where she remained until her death on May 23, 2000.

On August 14, 2000, Minos Borel, Mrs. Borel's husband, and their adult children (herein plaintiffs) filed a medical malpractice claim with the Patient Compensation Fund against Dr. Young, Dr. Castor, and LGMC. On January 17, 2002, the medical review panel rendered an opinion finding no breach in the standard of care by Dr. Young, Dr. Castor, or LGMC. Plaintiffs received the opinion on January 22, 2002. On March 28, 2002, plaintiffs filed suit in district court against LGMC. Neither Dr. Young nor Dr. Castor was named as a defendant. On April 24, 2002, LGMC answered the plaintiffs' petition asserting the comparative negligence or fault of parties not made defendants to the lawsuit. Two years later, in January 2004, plaintiffs learned that Dr. James Falterman would testify as an expert for LGMC. Plaintiffs attempted to amend their original petition to add Dr. Young, Dr. Castor, and the physicians' insurer, Louisiana Medical Mutual Insurance Company ("LAMMICO"), as defendants. When their efforts were rebuffed, they filed a separate suit for malpractice in the district court, naming Dr. Young, Dr. Castor, and LAMMICO as defendants, and alleging the joint, several and in solido liability of these defendants with LGMC. The second suit was consolidated with the pending lawsuit against LGMC. Dr. Young and LAMMICO filed a peremptory exception of prescription. Following a hearing on August 22, 2005, the district court granted the exception, finding that plaintiffs' suit, filed in district court on March 15, 2005, more than three years from the date of the alleged malpractice, was barred by peremption, pursuant to LSA-R.S. 9:5628(A). The court of appeal affirmed the decision of the district court.

Issue:

Did the court of appeal err in finding that plaintiffs’ action against Dr. Young has prescribed?

Answer:

No.

Conclusion:

In LeBreton, the Court pointed out that actions for medical malpractice against certain health care providers, such as defendants herein, are governed by special laws which delineate the applicable liberative prescription. Relying on the rules of statutory construction, it was pointed out that although statutes dealing with the same subject matter should be harmonized if possible, where there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. The Court further recognized that, in the civil law, suspension exists as an equalizer to litigants who find themselves in situations where interruption of prescription is not available, and that, by including special provisions regarding suspension of prescription in the medical malpractice statutes, the legislature excluded the applicability of interruption of prescription. Although issued in the context of a case presenting itself in a different factual and procedural posture from the instant one, the Court’s holding in LeBreton clearly stands for the principle that medical malpractice claims are governed by the specific provisions of the Medical Malpractice Act regarding suspension of prescription, to the exclusion of the general codal articles on interruption of prescription. That holding is broad enough to extend to the instant case.

Applying Louisiana Revised Statutes 40:1299.41(G) and Louisiana Revised Statutes 40: 1299.47(A)(2)(a) to the facts of the instant case, it becomes apparent that plaintiffs' claims against Dr. Young were properly dismissed. The alleged malpractice occurred on May 23, 2000. On August 14, 2000, a request' for a medical review panel was filed against Dr. Young, Dr. Castor and LGMC, as joint tortfeasors. During the pendency of the panel proceedings, prescription was suspended as to all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified. Plaintiffs were notified of the medical review panel decision on January 22, 2002. Thereafter, they had 90 days, plus the remainder of the one-year prescriptive period that was unused at the time the request for a medical review panel was filed (282 days), or until January 29, 2003, to bring Dr. Young, who had been previously named in the medical review panel, into the suit. Their attempt to bring him into the lawsuit on March 15, 2005, came too late.