Medical Malpractice in Louisiana Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University

Prescription/Statutes of Limitation Louisiana uses the term prescription for what other states call a statue of limitations Prescription is a limit on who long a plaintiff has to file a cause of action When does it start to run? What can toll it? Is there a discovery rule?

Peremption/Statutes of Repose Peremption Statues / Statutes of repose are an absolute limit, with no exceptions Peremption: Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La.Civ.Code art (1)) [FN12]; peremption, however, extinguishes or destroys the right (La.Civ.Code art. 3458).La.Civ.Code art (1))[FN12]La.Civ.Code art. 3458) Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986)

La Tort Reform 1 year primary period of prescription 3 year peremption No exceptions provided in the statute Applies to minors as well as adults They are usually excepted until age 18 Does this violate the LA constitution?

Crier v. Whitecloud, 496 So.2d 305 (La.1986) Reviews the prescription limitations Has a good review of previous cases What are the facts? How long between the injury and lawsuit? What was there a delay?

Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986) Companion case to Crier Dealt with a joint torfeaser situation - solidary obligors Held that filing against one solidary obligator tolls prescription against other solidary obligors Depend on plaintiff proving joint negligence, otherwise jurisdiction will fail The court in Hebert found that the 3 year limit was not meant to be peremption, just an elimination of the discovery rule after 3 years

Does Hebert Affect the Crier Plaintiff? The Crier court found that Hebert depended on there being a lawsuit filed against at least one of the defendant's within the 3 year period, and within one year of the discovery of the cause of the plaintiff's injuries Since there were no claims filed within 3 years in Crier, the court ruled that the 3 year period controlled and plaintiff was prescribed

What is the Crier Court's Constitutional Analysis? Is this the same as for previous cases?

What are the implications of Crier? What if plaintiff's problem - perhaps a slow growing cancer - does not cause symptoms until after 3 years? What if the consequences of the negligence will not be detectible until later, perhaps during pregnancy?

Is Prescription a Factual Issue? Plaintiff who is within the 3 year limit but past the 1 year limit is entitled to go forward and discover facts which could support a discovery exception Campo v. Correa, 828 So.2d 502, (La. 6/21/02) Plaintiff who is outside the 3 year limit is presumed to be prescribed unless he can plead special facts that would toll prescription Whitnell v. Menville, 540 So.2d 304 (La.1989)

What are the Standards for the Discovery Rule? Notice can be constructive, the plaintiff need not actually know if there are enough facts. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985) Just knowing something is wrong is not enough. The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct. Griffin v. Kinberger, 507 So.2d 821 (La.1987)

What Happens While You Wait for the Medical Review Panel? When plaintiff requests a medical review panel, prescription is suspended until 90 days after the plaintiff receives notice of the panel's ruling. LeBreton v. Rabito, 714 So.2d 1226 (La. 7/8/98) This means you get 90 days to file, not that the prescription clock begins to run from where it left off.

What if You Skip the Medical Review Panel? A suit filed before the medical review panel rules is premature, and has no effect on prescription If you file and get dismissed after the year has run, you cannot refile LeBreton v. Rabito, 714 So.2d 1226 (La. 1998)

What if You File with the Wrong Agency? If you do not file your request for a review panel with the Department of Administration Patient's Compensation Fund, prescription continues to run. Metropolitan Development Center v. Liner, 891 So.2d 62 (La.App. 4 Cir. 2004)

What if Your Client could not have known about the Negligence before Prescription? It does not matter. You are still out of luck. David v. Our Lady of the Lake Hospital, Inc., 849 So.2d 38 (La. 2003)

What about the Continuing Relationship/Continuing Tort Exception? Stay tuned - this is the subject of the cases for next class.