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La. Code Civ. Proc. Ann. art. 1153 speaks only of adding a cause of action or defense; which has been interpreted to include the addition of a plaintiff or defendant, and the subjective intent of the added party in asserting his or her claim has not been cited as a consideration for finding or not finding a relation back to the original petition. Instead, the statute and jurisprudence focus on whether the defendant knew or should have known of the involvement of the added plaintiff.
This case arose from the death of Terry Warren. He died on October 13, 2000, at Summit Hospital from complications. Plaintiffs Pamela Warren, Mr. Warren's widow, and Theresa Warren, one of Mr. Warren's daughters, filed a request for a medical review panel to investigate their medical malpractice complaint against various health care providers, including decedent’s treating physicians. Plaintiffs filed a petition in the district court asserting survival and wrongful death actions under La. Civ. Code arts. 2315.1 and 2315.2. Plaintiffs thereafter filed a First Supplemental and Amending Petition, this petition added survival and wrongful death causes of action for Sarah Warren Jimenez, the decedent's second daughter. In response to the amended petition, defendants Louisiana Medical Mutual Insurance Company filed an exception of prescription, arguing that the second daughter’s claims were prescribed on their face because she did not file her action within one year of the date of her father's death. Plaintiffs opposed the exception. The district court overruled the defendant’s exception of prescription to the plaintiff’s medical malpractice complaint. The court of appeals denied the defendant’s writ seeking supervisory review. On remand, the court of appeal again denied the writ. The providers sought another writ to consider the propriety of the court of appeal's ruling.
Should the exception of prescription be applied?
No. The decision of the court of appeal was affirmed.
The supreme court found that the district court properly overruled the defendant’s exception of prescription with regard to the amending petition adding the daughter as a plaintiff in the survival action. The amending petition adding the daughter's wrongful death claim did not arise out of the same conduct, transaction, or occurrence set forth in the original petition. The daughter was sufficiently related to the original plaintiffs, her mother and her sister. The supreme court believed that the existence and involvement of the daughter and her additional cause of action were sufficiently known or knowable to the defendants within the prescriptive period. The deposition testimony of the daughter and her sister revealed that their father's death had put the family into emotional turmoil, thereby explaining the daughter's reluctance to become involved in the litigation. Defendants would not be prejudiced in preparing and conducting their defense by the relation back of the amended petition adding the daughter's wrongful death claim.