Broussard v. Sears Roebuck and Co.

Decision Date03 October 1990
Docket NumberNo. 89-388,89-388
Citation568 So.2d 225
PartiesSusan BROUSSARD, Plaintiff-Appellant, v. SEARS ROEBUCK AND COMPANY, et al., Defendants-Appellees. 568 So.2d 225
CourtCourt of Appeal of Louisiana — District of US

Vincent J. Saitta, Lafayette, for plaintiff-appellant.

Jeansonne & Briney, Patrick J. Briney, Lafayette, for defendant-appellee Sandefur.

Gachassin, Hunter & Sigur, Lelia Anne Collier, Lafayette, for defendant-appellee Sears.

Laborde & Neuner, Frank X. Neuner, Lafayette, for defendant-appellee La. Co.

Before DOMENGEAUX, C.J., and FORET and KNOLL, JJ.

KNOLL, Judge.

Plaintiff, Susan Broussard, appeals the dismissal of her medical malpractice action against Dr. George P. Fink, an optometrist, on a peremptory exception of prescription. The trial court concluded that the list contained in LSA-R.S. 9:5628 is illustrative rather than exclusive, and Fink falls under the purview of the 3 year prescriptive period.

On appeal, Broussard contends the trial court erred in concluding that LSA-R.S. 9:5628 is applicable to optometrists and that her claim has prescribed.

FACTS

A review of the record reveals that the trial court decided the peremptory exception filed only by Dr. Fink against Broussard after considering the pleadings and memoranda submitted by counsel. Nowhere in the record does it appear that any testimony or written evidence was offered by either litigant for purposes of this peremptory exception of prescription. 1 Therefore, in reviewing the soundness of the trial court's granting of the peremptory exception of prescription, we are limited to the allegations contained in the petition. Whitnell v. Menville, 540 So.2d 304 (La.1989); Leyva v. Laga, 549 So.2d 914 (La.App. 3rd Cir.1989). Refer to the attached appendix for the pertinent allegations of the petition.

The substance of plaintiff's allegations is that she was examined by Dr. Fink and/or Dr. Robert D. Sandefur, another optometrist, on several occasions beginning on or about February 11, 1983, through and including September 11, 1986. When Broussard was first examined, the record shows that she was in her middle twenties. She alleges that in all of these examinations she complained of vision problems which both optometrists should have diagnosed as a glaucoma condition.

Because of the optometrists' failure to properly diagnose the eye disease, plaintiff did not learn of the eye condition until July 14, 1987, when another optometrist (the record does not reflect his/her name) recognized the problem and immediately referred her to a physician for emergency treatment. As a result, plaintiff suffers from an advanced stage of glaucoma which requires extensive medical treatment and which eventually may cause blindness. In sum, Broussard contends that both Fink and Sandefur were negligent in failing to properly diagnose and/or discover the glaucoma condition and these acts of negligence allowed her condition to worsen to the extent that she may lose her eyesight despite extensive medical treatment.

The trial court granted the peremptory exception of prescription and dismissed Broussard's claim against Dr. Fink. 2 The judgment is silent as to the other defendants.

LAW

In deciding the merits to this appeal, we must first address whether optometrists fall under the ambit of LSA-R.S. 9:5628, which mandates a 3 year prescriptive period for medical malpractice actions. In opposition to the peremptory exception of prescription, Broussard contends the statute does not apply to optometrists since they are not specifically listed as one of the covered medical practitioners. Fink concedes that optometrists are not specifically listed in the statute but argues that the list is illustrative rather than exclusive and holding otherwise would disrupt the cohesive and well integrated legislative scheme which regulates medical malpractice actions. Specifically, Fink contends that LSA-R.S. 9:5628 must be read in conjunction with the Medical Malpractice Act (LSA-R.S. 40:1299.41 et seq.) to include optometrists.

LSA-R.S. 9:5628(A) provides in pertinent part:

"No action for damages for injury or death against any physician, chiropractor, dentist, psychologist, or hospital duly licensed under the laws of this state, 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." (Emphasis added.)

Originally, LSA-R.S. 9:5628 was enacted in 1975 in response to sharp increases in medical malpractice insurance rates and applied only to physicians, dentists and hospitals. Valentine v. Thomas, 433 So.2d 289, (La.App. 1st Cir.1983), writ denied, 440 So.2d 728 (La.1983); See also, Recent Medical Malpractice Legislation--A First Checkup, 50 Tul.L.Rev. 655 (1976). In 1976, the statute was amended by Act # 214 to include chiropractors and in 1987, Act # 915 added psychologists to the list.

Our brethren of the First Circuit has limited the interpretation of the statute to its plain wording. Marcel v. La. State Dept. of Public Health, 492 So.2d 103 (La.App. 1st Cir.1986), writ denied, 494 So.2d 334 (La.1986). In Marcel, the Court concluded that by its own terms LSA-R.S. 9:5628 does not apply to either the Louisiana Department of Health and Human Resources or the State of Louisiana because neither is a hospital, physician, chiropractor or dentist.

Under the Medical Malpractice Act (LSA-R.S. 40:1299.41 et seq.), a "health care provider" is defined as:

"a person, partnership, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, community blood center, tissue bank, dentist, registered or licensed practical nurse, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, or psychologist, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or an officer, employee, or agent thereof acting in the course and scope of his employment." (Emphasis added.)

The practice of optometry is defined as the examination of the eye without the use of drugs or medicine for nearsightedness, farsightedness and the fitting of glasses to correct these defects. Webster's New Universal Unabridged Dictionary 1256 (2d ed. 1983).

The profession of optometry originated in the late nineteenth century when a small number of opticians began to assume the additional task of determining the optical error of the eye and the amount of correction needed in the patient's eyeglasses. After assuming this function which was formerly the exclusive province of physicians, opticians later successfully sought legislation in numerous states to allow their examinations of the eye under the professional title of optometrists. Optometry Drug Laws: Their Propriety and Malpractice Ramifications, 24 Loy.L.Rev. 221 (1978) (hereafter Optometry Drug Laws ).

In Louisiana, the legislature has restricted the practice of optometrists to exclude those activities which are traditionally the function of physicians. (Prescribing medicine or practicing medicine or surgery except for the possession and use of topical ocular diagnostic pharmaceutical agents.) LSA-R.S. 37:1061(15). In addition, optometrists are prohibited from using the title of "Doctor" or "Dr." as a prefix to their names without having the term "Optometrist" as a suffix or in connection with it. LSA-R.S. 37:1061(5). The purpose of the statute is to distinguish optometrists from medical doctors (i.e., ophthalmologists) thereby preventing any confusion of their respective fields of expertise. Fairchild v. Brian, 354 So.2d 675 (La.App. 1st Cir.1977); See also, Optometry Drug Laws at 223-226.

In fact, the field of optometry is limited to:

"that practice in which a person employs or applies any means other than surgery, for the measurement of the powers and testing the range of vision of the human eye, and determines its accommodative and refractive state, general scope of function, and the adaptation of frames and lenses, including contact lenses in all their phases, to overcome errors of refraction and restore as near as possible, normal human vision. The practice of optometry does not include the use of drugs or medication, except the use of topical ocular diagnostic pharmaceutical agents and then only by a licensed optometrist and in accordance with the provisions of this Chapter. The practice of optometry does not include the use of pharmaceutical agents, in the treatment of disease." LSA-R.S. 37:1041(3). (Emphasis added.)

Louisiana courts have long held that the practice of optometry is closely related to the public health and public welfare. Louisiana State Bd. of Optom. Exam v. Pearle Optical, 248 La. 1062, 184 So.2d 10 (1966); Kihneman v. Louisiana State Board of Optom. Exam., 96 So.2d 402 (La.App. 2nd Cir.1957), writ denied, (November 12, 1957).

When a law is clear and free from ambiguity, the letter of it is not to be disregarded under the guise of interpretation or pursuing its spirit. LSA-R.S. 1:4; Backhus v. Transit Cas. Co., 549 So.2d 283 (La.1989); Gill Trailer & Equip. Rentals, Inc., v. S. D'Antoni, Inc., 282 So.2d 714 (La.1973); cert. denied, 415 U.S. 957, 94 S.Ct. 1485, 39 L.Ed.2d 572 (1974). Prescriptive statutes are strictly construed, and the facts of the case must bring the action clearly within the specific provision of the law sought to be applied. Thibodeaux v....

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