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Is Louisiana Revised Statute 9:5628 Preemptive or Prescriptive?

By Jeffrey A. Mitchell

The answer to this question seemingly is a no brainer as the Louisiana Supreme Court decided in Hebert v. Doctor’s Memorial Hospital, 486 So.2d 717 (La. 1986), that it is a prescriptive statute.  The Court specifically held that “prescription is interrupted by a timely filed  suit against a purported solidary obligor and that plaintiffs’ suit against a hospital pending when the petition was amended to name a doctor, interrupted prescription against the doctor.

Unfortunately, medical malpractice cases provide endless opportunities to revisit clear and already decided issues as an area of the law which puts halos on health care providers and horns on medical malpractice victims.  Perhaps more unfortunate and dangerous is the fact that defense lawyers can persuade trial and appellate courts to either ignore or distinguish established precedent.  Dangerous because changing the rules in midstream not only has malpractice implications for those of us trying to muddle through this intricate and detailed area of the law, but also because there is no guidance that a lawyer can rely on to chose his path.

One example of this problem in the context of this particular statute are recent decisions by the Louisiana Third and Fourth Circuit Courts of Appeal.  In Borel v. Lafayette General Medical Center, 947 So.2d 824 (La. App. 3rd Cir. 2006), the Louisiana Third Circuit held that the specific provisions of the medical malpractice act govern over the more general rules of prescription governing joint tortfeasors found in Civil Code Article 2324. In so doing, the court reasoned that the Louisiana Supreme Court in LeBreton v. Rabito, 714 So.2d 1226 (La. 1998) held that a prematurely filed lawsuit in a district court did not interrupt prescription. Thus, it held that LeBreton overruled Hebert. What makes this holding particularly unfair and directly implicating of malpractice are the incredible facts.

    In Borel , the plaintiffs named Lafayette General Medical Center (“LMGC”) in its complaint of malpractice.  The case went to the medical review panel and was decided in favor of Lafayette (no breach of the standard of care).  The medical review panel did not impugn any other health care provider.  Plaintiffs then filed suit against LMGC.  Defendant answered the suit and in standard boiler plate language asserted the fault of the plaintiff and/or third party fault.  LMGC then filed a motion for summary judgment alleging no expert by the plaintiff to support negligence against them.  Plaintiff propounded interrogatories to defendant seeking to discover the identity of their experts. Defendants answered the discovery listing a nurse and a doctor only asserting opinions that LMGC was not at fault.

    LMGC then files a motion to set, stating, without plaintiff’s concurrence, that discovery was complete and the case was ready for trial.  Following multiple requests, LMGC finally allows plaintiff to depose the physician expert, who was specifically asked about negligence of third parties, and who specifically denied any such negligence.  The deposition had to be suspended and for procedural reasons was not reset until seven months later.  When the deposition resumed, the defense expert changed his tune and was now alleging third party fault on the doctors who treated plaintiff.  Plaintiff’s then filed suit against the doctor and the defense excepted to the suit as barred by prescription.

    The Fourth Circuit, in Richard v. Tenet health Systems, Inc, 871 So.2d 671 (La. App. 4th Cir. 2004), held that a timely filed district court suit against one health care provider did not interrupt prescription as to the other health care provider, not previously named in the panel request, who were alleged to be jointly liable with the named defendant.

    However, the Fourth Circuit denied writs in In Re Medical Review Panel of Veronica Fischer, 2006-C-0590 (La. App. 4th Cir. 6/15/06), wherein the trial court applied Civil Code Article 2324to add the joint tortfeasor health care provider more than three years after the alleged acts of malpractice.

    Of significance is the Louisiana Supreme Court’s  denial of writs in Shulingkamp v. Ochsner Clinic, 813 So.2d 524 (La. App. 5th Cir. 2002).  Initially, the Court granted wits on the narrowly circumscribed issue in Hebert citing a contradiction in the circuits on the issue of adding a joint obligor health care provider after three years of acts of medical negligence.  On rehearing, the court denied the writ because the defendant health care provider to be added could not factually be a joint or solidary obligor with the timely named health care provider.

    The answer to be supplied by the Louisiana Supreme Court is whether LeBreton overruled Hebert.