Medical Malpractice in Louisiana

Edward P. Richards
Director, Program in Law, Science, and Public
Health
Harvey A. Peltier Professor of Law
Louisiana State University
richards@lsu.edu
http://biotech.law.lsu.edu
 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. 1762 (1)) [FN12]; peremption,
however, extinguishes or destroys the right (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, 2001-2707 (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.