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Nathan v. Touro Infirmary - 512 So. 2d 352 (La. 1987)

Rule:

La. Code Civ. Proc. Ann. art. 801 provides that when a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. As used in La. Code Civ. Proc. Ann. arts. 801 through 804, "legal successor" means: (1) The survivors designated in La. Civ. Code Ann. art. 2315, if the action survives in their favor; and (2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.

Facts:

Applicant Max Nathan, Jr., both in his capacity as an executor and in his individual capacity as an heir, filed a supplemental and amending petition in an underlying  suit against Dr. Gordon P. Nutik and Touro Infirmary (“Touro”), and Touro's board of managers for damages suffered by now-deceased Herbert Nathan as a result of alleged malpractice committed by the doctor at the hospital during treatment for a broken hip. Max Nathan contended that because he is an heir or legatee of Herbert Nathan, he is also entitled to prosecute the suit in that capacity. Originally, the now-deceased Herbert Nathan had filed a malpractice complaint with the Medical Review Panel as required by the Medical Malpractice Act prior to filing suit against a health care provider covered by the act. During the pendency of that action, Herbert Nathan died of causes not related to the alleged malpractice, leaving no spouse or children, parents or siblings to survive him. Max Nathan, Jr. applied for writs, arguing that Herbert Nathan's action to recover damages for his injuries allegedly resulting from malpractice was commenced prior to his death by his filing with the Medical Review Panel, and this action did not abate upon his death.  The parties being sued filed exceptions of no right of action upon the contention that Max was not entitled to assert a claim for Herbert’s injuries pursuant to La. Civ. Code Ann. art. 2315 because he was not a spouse, child, parent, or sibling. The district court granted the exception, and the court of appeal affirmed, treating the suit as one instituted by the legatee-succession representative after the decedent's death. Now, the Supreme Court of Louisiana granted writs to resolve the issue of whether a succession representative as plaintiff may continue an art. 2315 personal injury suit brought by a victim who died without surviving beneficiaries designated in art. 2315.

Issue:

Where a now-deceased malpractice plaintiff's executor-heir claimed that the action did not abate upon the death pending the action, did the Louisiana lower courts err in sustaining the defendants' exceptions of no cause of action?

Answer:

Yes

Conclusion:

The Supreme Court of Louisiana reversed the judgment. The Court first determined that the medical malpractice action was in fact commenced by Herbert Nathan prior to his death. The Court next held that the code clearly provides generally that Herbert Nathan's action did not abate upon his death unless it was "strictly personal." Accordingly, the Court concluded that the lower courts erred in sustaining the exceptions of no right of action.  The action in this case was a property right that transferred to the executor as an heir pursuant to succession rights. La. Code Civ. Proc. Ann. art. 801 provides that when a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. As used in La. Code Civ. Proc. Ann. arts. 801 through 804, "legal successor" means: (1) The survivors designated in La. Civ. Code Ann. art. 2315, if the action survives in their favor; and (2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein. The case was remanded for further proceedings.

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