Special Prescriptive Period for Medical Malpractice Cases Upheld by Supreme Court
By Jennifer J. Thomas, Esquire, Attorney: Law Firm of Kean Miller – Baton Rouge, Louisiana – www.keanmiller.com
On June 26, 2009 the Louisiana Supreme Court rendered an opinion in the case of Warren v. LAMMICO, et al., 2007-cc-0492, on rehearing, where the issue before the court was whether or not a plaintiff, who had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods required by La. R.S. 9:5628, could file a wrongful death and survival claim that would “relate back” to the original, timely filed claims of her mother and sister. In this case, a wife and daughter timely filed a complaint with the Louisiana Patients’
Compensation Fund, completed the Medical Review Panel process, and subsequently filed a lawsuit. A second daughter intentionally chose not to participate in any of the proceedings as a party until four (4) years after the dates of the alleged malpractice and death of her father.
Under La. R.S. 9:5628, a claim for medical malpractice must be brought within one (1) year from the date of the alleged act, omission, or neglect, or within one (1) year from the date of discovery of the alleged act; however, no action shall be filed beyond three (3) years from the date of the alleged act, omission, or neglect.
The Supreme Court had originally ruled that an amended petition adding a new plaintiff’s otherwise prescribed medical malpractice claims related back to the timely filing of an original petition pursuant to Louisiana Code of Civil Procedure Article 1153 and the analysis set forth in Giroir v. La. Med. Ctr., Div. of Hospitals. This was before the Supreme Court had issued its opinion on rehearing in Borel. On rehearing in Warren, the Supreme Court held that the new plaintiff’s claims were prescribed under the specific provisions of the Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and La. R.S. 9:5628, and that any general code article that conflicts with the operation of prescription under these specific provisions cannot be applied in a medical malpractice case.
The Court followed this same line of reasoning it used when it addressed the issue of a late-added defendant in the Borel v. Young decision. In Borel, the plaintiffs attempted to file suit against a defendant after the prescriptive period had already run by arguing that the defendant was jointly liable with the original defendants and
prescription was interrupted under the general Louisiana Civil Code article 2324. The Borel decision held that the more specific provisions of the Medical Malpractice Act regarding prescription apply to the exclusion of the general code article on the interruption of prescription against joint tortfeasors found in La. C.C. Art. 2324.
The Supreme Court has now held that for both late-added plaintiffs and late-added defendants, the more specific provisions of the Medical Malpractice Act and La. R.S. 9:5628 regarding prescription apply to the exclusion of any general code articles on the interruption or suspension of prescription in medical malpractice cases. The Warren decision is favorable to Louisiana health care provider defendants and will help provide more certainty and definiteness of exactly what must be defended in a medical malpractice case.
(Reprinted from the Sept/Oct 2009 issue of LAMMICO's The Letter)