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Borel v. Young; Warren v. LAMMICO; These Supreme Court Cases Profoundly Effect Louisiana Medical Malpractice

I.                    Borel and Warren, Two Supreme Court Pronouncements Have a Profound Effect on the Louisiana Medical Malpractice Act.

 
In Borel v. Young, 989 So.2d 42, 2007-0419 (La. 11/27/07), on rehearing (Jul 01, 2008), rehearing denied (Aug 29, 2008), the plaintiffs timely filed a malpractice complaint with the Louisiana Patient's Compensation Fund against two doctors and a hospital, thereby satisfying the requirements of La. R.S. 40:1299.47(B)(1)(a)(i) that no action may be filed against a health care provider before a claimant's proposed complaint has been presented to a medical review panel. This timely request suspended prescription until ninety days following notification of the panel's issuance of an opinion against all parties named in the complaint and all joint and solidary obligors and all joint tortfeasors. La. R.S. 40:1299.47(A)(2)(a). Within 90 days of being notified of the panel's opinion, the plaintiffs filed suit in district court against the hospital, but not against the two doctors.
 
After the three year period provided in La. R.S. 9:5628, plaintiffs attempted to amend their petition to add the doctors and their insurer, and when this failed, they filed a separate lawsuit against them which was later consolidated with the original suit. In response, the defendants filed an exception of prescription. Plaintiffs contested, arguing that La. C.C. art. 2324(C), providing that “[i]nterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors,” applied such that their timely suit against the hospital interrupted prescription against the other joint tortfeasors. In Borel, the supreme court disagreed and held that “the more specific provisions of the Medical Malpractice Act regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general code articles on interruption of prescription against joint tortfeasors, LSA-C.C. art. 2324(C).” Borel, supra at 69.

In summary, Borel holds that a plaintiff may not belatedly add a defendant to a medical
malpractice case utilizing the general codal provisions of timely interruption by one joint tort-feasor as interrupting prescription against all other joint tort-feasors. The medical malpractice statute is prescriptive, not preemptive, and it governs medical malpractice actions over the more general code provisions.
 
Then along came the Warren decision in which the Louisiana Supreme Court was asked to decide the issue of whether new plaintiff can be added as a party more than one year after the date of the death of a patient in a medical malpractice case. Warren v. Louisiana Medical Mut. Ins. Co. 21 So.3d 186, 2007-0492 (La. 12/2/08). Rehearing granted (Feb 13, 2009), on rehearing (Jun 26, 2009).
On October 10, 12, and 13, 2000, Terry Wan-en received medical treatment from various health care providers, and, on October 13, 2000, he died. Alleging that his death was caused by substandard medical care which led to a delay in diagnosing and treating a heart attack, on September 11, 2001, Pamela Warren and Theresa Rene Warren filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund. Pamela and Theresa Warren are the wife and daughter of the decedent.
 
At the time the PCF complaint was filed, the decedent's other daughter, Sarah Warren Jimenez (“Sarah”), was aware of the filing but consciously chose not to be involved in the matter. Pamela Warren and Theresa Warren timely filed suit against defendants in the Nineteenth Judicial District Court alleging wrongful death and survival actions. Again, Sarah chose not to join in the suit. On July 6, 2004, nearly 4 years after the death of her father, Sarah filed an amending petition seeking to be added as a plaintiff asserting survival and wrongful death claims
 
In its original decision, the Supreme Court held that the amended pleading adding a new plaintiff after the expiration of the prescriptive period related back to the timely filing of the original petition pursuant to La. C.C.P. art. 1153. On rehearing, the Court stated that its previous holding was contrary to Borel, as well as to LeBreton.
 
La. C.C.P. art. 1153 provides that “[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”
 
The Court reasoned:
 
LeBreton and Borel stand for the proposition 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. These cases are equally applicable here. The expressed reasoning behind the holding in LeBreton was that if the general rules on interruption were to apply to a medical malpractice action, “then the prescription and suspension provisions provided in the Medical Malpractice Act will be written out,” and “[t]herein lies the conflict.” LeBreton, supra at 1230.
Although La. C.C.P. art. 1153 does not “interrupt” prescription as did the general codal articles in LeBreton and Borel, “relation back” of an untimely filed amended petition directly avoids the application of prescription by allowing a claim that would have otherwise prescribed to proceed. The effect of this interference is that if relation back is allowed, the “prescription and suspension provisions provided in the Medical Malpractice Act will be written out,” which, as we recognized in LeBreton, presents “a conflict.” LeBreton, supra at 1230.
 
Further, the application of La. C.C.P. art. 1153 “would potentially subject a health care provider to an indefinite period of prescription, ... a result clearly at odds with the purpose of the [Act].” Borel, supra at 68, n. 12. Because medical malpractice actions are governed by the specific provisions of the Act regarding prescription and suspension of prescription, under Borel, we find that any general codal article which conflicts with these provisions may not be applied to such actions in the absence of specific legislative authorization in the Act. The Act has no rules allowing relation back of pleadings for medical malpractice claims. The application of Article 1153 would permit the adding of an plaintiff subsequent to the expiration of the three-year period provided for in La. R.S. 9:5628, and would read out of the statute the prescription and suspension period provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47; therefore, La. C.C.P. art. 1153 may not be applied to the medical malpractice action under the reasoning of LeBreton and Borel. 
 
In Sum, Warren held that Sarah Jimenez claims for the wrongful death of her father were prescribed because they were not filed within one year from the date of his death and she could not use article 1153 of the Louisiana Code of Civil Procedure, which allows for the relation back of an amended petition to a timely filed original petition, to interrupt that time period. These cases more generally stand for the proposition that the Medical Malpractice Act, not the general codal articles, govern medical malpractice cases. Adding late defendants is now a pitfall. This will force plaintiff’s attorneys to sue everyone because defendants cannot be added later, even if they are joint- tortfeasors. Of course, this will perpetuate the defense argument of a frivolous suit naming everyone involved.
 
 
THE AFTERMATH OF BOREL AND WARREN
 
It is clear that in the aftermath of Borel and Warren, defendants will attempt to extend
the reach of these decisions even further. Here is one actual recent example:
 
Query: AFTER BOREL AND WARREN: Does La. R.S. 9:5628, on prescription, govern wrongful death actions arising out of medical malpractice or does the Civil Code Articles on wrongful death apply?
 
 
9:5628. Actions for medical malpractice
 
A.      No action for damages for injury or death against any physician, ..., whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
 
Several recent defendants have attempted to extend the holding in Warren to argue that under this statute, plaintiffs’ failure to bring a medical malpractice action against the medical malpractice defendants when the suit was timely instituted by the surviving spouse now bars them from successfully bringing a wrongful death action within one year from the date of death of their father. (If the death occurred more than three years from the act of malpractice). In so doing, the defendants argue that Warren impliedly overruled a previous Supreme Court ruling on this issue.
 
The Louisiana Supreme Court has already expressly rejected this reasoning as “intolerable.” In Taylor v. Giddens, 618 So.2d 834 (La. 1993), the Louisiana Supreme Court expressly held that La. R.S. 9:5628 DOES NOT provide a prescriptive period for wrongful death actions in a medical malpractice case. The court specifically reasoned:
 
In contrast, the wrongful death action does not necessarily come into existence simultaneously with the malpractice action or even come into existence while the victim'smalpractice action is viable. Consequently, if La. R.S. 9:5628 controlled the prescriptive period for wrongful death actions, a certain class of wrongful death claimants would be time-barred from filing suit before their cause of action even arose. The statute would not equally affect all medical malpractice wrongful death claimants or treat them the same. See Crier v. Whitecloud on reh'g, 496 So.2d 305 (La.1986). Wrongful death claimants whose malpractice victim died within the prescriptive period would be allowed to seek damages, while those whose malpractice victim died after the expiration of the malpractice action prescriptive period would be denied the right to seek damages. Their remedy to address their civil wrong would have been eliminated prior to the accrual of their cause of action. Such a result is intolerable, as it discriminates among wrongful death tort claimants.
 
The Supreme Court, on rehearing in Warren, never even discussed, much less overruled Taylor v. Giddens. Any suggestion to the contrary is not supported by a single citation or any reported history on Warren or Taylor in the research. (Query for discussion: Does the Louisiana Supreme Court implicitly overrule other important decisions without discussing them?)
 
Moreover, such an argument also is directly contrary to a previous medical malpractice case with virtually the same exact facts wherein the court allowed the plaintiffs to bring an action for wrongful death of their son 15 years after the date of the malpractice, but within one year from the date of his death. In Rajnowski v. St. Patrick Hospital of Lake Charles, 768 So.2d 88 (La. App. 3rd Cir. 6/07/00,) Richard and Nancy Rajnowski were the parents of Richard Rajnowski, Jr. (Ricky) who was born on February 1, 1983, at St. Patrick Hospital of Lake Charles. In 1986, when Ricky was about three and a half years old, the Rajnowskis filed a medical malpractice suit individually and on behalf of their minor child against Dr. Floyd Guidry; his insurer, St. Paul Fire & Marine Insurance Company; and St. Patrick Hospital. The Defendants then filed a peremptory exception of prescription averring that, because a period of three and one half years had passed since the alleged malpractice, the action had prescribed. The trial court granted the exceptions of prescription as to both Defendants and dismissed the suit with prejudice. The Rajnowskis appealed that ruling, and the court affirmed the trial court's judgment.
 
Ricky died on February 27, 1998, at the age of 15. On February 23, 1999, his parents filed a wrongful death suit against the same defendants that they sued in 1986. They alleged that Ricky died as a result of deviations in the standard of care by Dr. Guidry during prenatal treatment. Defendants filed exception of res judicata and prescription arguing that La. R.S. 9:5628 controlled the wrongful death action. The Rajnowskis argued that a wrongful death cause of action does not come into existence until the tort victim dies.
 
The court agreed with the Rajnowskis and denied the exceptions of res judicata and prescription. The court reasoned:
 
The reference to actions for death in LSA- R.S. 9:5628 applies solely to survival actions as they are derivative of the malpractice victim’s action. Further, wrongful death actions are not dependent upon the victim having a viable malpractice action. The date of the malpractice victim’s death determines when the prescriptive period commences running, as that is the date the claimant’s are injured.
Id. at 90
 
            The court noted that the determination that the prescriptive period for wrongful death actions arising from medical malpractice are not within the scope of LA. R.S. 9:5628 did not alter the affect that the medical malpractice provision has on wrongful death actions. Those actions continue to be governed and procedurally controlled by the Medical Malpractice Act.