98-0486 La.App. 4 Cir. 12/9/98, Wadsworth v. ABC Ins. Co.

• Decision Date: 09 December 1998
• Citation: 732 So.2d 56
• Parties: 98-0486 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 56

732 So.2d 56

98-0486 La.App. 4 Cir. 12/9/98

Deborah A. WADSWORTH v. ABC INSURANCE COMPANY and Jaime Olivo, M.D.

No. 98-C-0486.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 9, 1998.

Rehearing Denied Jan. 15, 1999.

Ernest L. O'Bannon, Celeste Brustowicz, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, Louisiana, for Jaime Olivo, M.D.

Wayne Maldonado, Donald Klotz, Ungarino and Eckert , Metairie, Louisiana, for Hanover Ins. Co.

Joseph W. Thomas, New Orleans, Louisiana, and Adolph J. Levy, New Orleans, Louisiana, for Deborah A. Wadsworth.

Court composed of Chief Judge PATRICK M. SCHOTT, Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge JAMES C. GULOTTA, Pro Tempore.

[98-0486 La.App. 4 Cir. 1] JAMES C. GULOTTA, J. Pro Tem.

This matter is before this Court on a writ grant of certiorari from the trial court's ruling dismissing defendants' exception of prescription. We reverse.

According to the petition, plaintiff alleges that the defendant was her treating physician, and despite his knowledge of her fragile physical condition, requiring numerous surgical procedures as a result of an automobile accident, as well as her fragile mental and emotional condition, resulting in her depression and alcoholism, defendant engaged in consensual ongoing sexual relations with plaintiff from 1983 to 1990. Plaintiff alleges that the last sexual encounter between the parties occurred on September 13, 1990 when she terminated the relationship. This lawsuit was filed on December 27, 1993.

Whether plaintiff's claim has prescribed depends on whether there existed a fiduciary relationship between the parties, as claimed by plaintiff, in which case, a ten year prescriptive period is applicable; or whether the claim is based on ex delicto requiring the applicability of the one year prescriptive period. See La. C.C. articles 3499,3492. If the claim is subject to a one year prescriptive period, plaintiff claims that the doctrine of contra non valentem applies to suspend the running of prescription.

FIDUCIARY RELATIONSHIP

It is clear from the wording of the petition that plaintiff's claim is not one in medical malpractice. ¹ Her assertion of damages does not arise from any [98-0486 La.App. 4 Cir. 2] allegation of malpractice in her treatment. This suit is based on the damages caused from the claimed illicit relationship between the parties.

The initial question is whether, as a matter a of law, a fiduciary relationship exists between a physician and patient as a result of a long standing (over a period of approximately seven years) consensual sexual relationship, unrelated to any medical treatment, thereby creating a duty by the physician to the patient, a breach of which (caused by the sexual relationship) is compensable in damages. We think not.

The trial judge, in reasons for dismissing defendants' exception of prescription, stated:

This court is of the opinion that there exists a fiduciary relationship between doctor and patient; the breach thereof is not governed by the medical malpractice statute. The court recognizes that in the modern day practice of medicine it is possible to have a doctor/patient relationship where there is no fiduciary relationship. The questions to be determined by the trier of fact based upon the actual relationship between the patient and doctor are whether or not there was a fiduciary relationship and whether or not Dr. Olivo violated that relationship and breached a fiduciary duty owed by him to the plaintiff."

In Plaquemines Parish Com'n Council v. Delta Dev. Co., Inc., 502 So.2d 1034 1040-1041 (La.1987), the Louisiana Supreme Court discussed the nature of a fiduciary relationship where violations of trust are claimed by persons in their roles as public officials and attorneys. The Court in the Plaquemines Parish case defines a fiduciary relationship in terms of a trust, a confidence and the advantage that one party may have over another. This definition is made in the context of a business or financial relationship.

[98-0486 La.App. 4 Cir. 3] Louisiana jurisprudence has acknowledged the existence of fiduciary obligations involving attorneys, stockbrokers, trustees, usufructuaries, executors, administrators and directors and officers of a corporation. State v. Hagerty, 251 La. 477, 205 So.2d 369 (1967), cert. denied, Hagerty v. Louisiana, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 855 (1968); Office of the Comr. of Ins. v. Hartford Fire Ins. Co., 623 So.2d 37 (La.App. 1 Cir.1993), writ denied, 93-2125 (La.4/7/94), 635 So.2d 1131. However, we have been unable to find nor have we been cited any case law on the existence or non-existence of a fiduciary relationship between a physician and patient.

The jurisprudence from other jurisdictions indicate that the relationship between patient and physician is a fiduciary one where there is an allegation of medical malpractice resulting from the treatment of the plaintiff. These cases are not helpful where a claim is made for damages growing out of a personal relationship between a physician and a patient, not growing out of a claim for malpractice resulting from negligence in treatment or intentional dereliction in medical treatment. ²

In Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454 (1987), the plaintiff filed suit alleging that her physician improperly engaged in a sexual [98-0486 La.App. 4 Cir. 4] relationship with her. According to the plaintiff, the defendant's initiation of a sexual relationship breached the duty of care which the defendant doctor owed to her. The court recognized that a physician who initiates a sexual relationship with a patient alleging it is part of the patient's treatment is guilty of malpractice. However, the court dismissed the plaintiff's suit finding that the sexual relationship existed outside the scope of the medical treatment rendered by the physician. The court stated that the plaintiff complained that "she had an unhappy affair with a man who happened to be her doctor. This is plainly insufficient to make out a cause of action for professional negligence." Atienza, 194 Cal.App.3d at 393, 239 Cal.Rptr. at 457.

Similarly, in Odegard v. Finne, 500 N.W.2d 140 (Minn.App.1993), the plaintiff filed suit seeking damages allegedly sustained as a result of a four month affair which admittedly was not induced under the guise of treatment. The court referred to Atienza and concluded that since the relationship was outside the scope of treatment, there was no breach of a professional duty.

While we recognize that ordinarily a dependence or trust relationship may exist between a physician and patient, an allegation of a breach of this relationship falls within a claim for malpractice or ex delicto. A physician who initiates a sexual relationship as part of the patient's treatment or therapy presumably might be held accountable for a violation of the duty owed to the patient under the Medical Malpractice Act (La. R.S. 40:1299.41). However, where the alleged violation of a duty exists outside the scope of treatment of a patient, any claim based on the breach of a fiduciary relationship is less compelling. Such a claim would more appropriately fall within the parameters of ex delicto.

In the instant case, it is clear that the relationship which existed between [98-0486 La.App. 4 Cir. 5] the plaintiff and defendant was outside the scope of treatment. It was a consensual sexual relationship between two single adults. The defendant was consulted by plaintiff's treating physicians during her hospitalization in November of 1982. Plaintiff and defendant's relationship did not begin until several months after plaintiff had been discharged from the hospital. ³ Plaintiff never sought treatment at the defendant's office. Plaintiff also admitted that defendant never stated that the sexual relationship was part of her treatment.

We hold that plaintiff's reliance upon the ten year prescriptive period for personal actions is misplaced. Plaintiff's claim is tortious in nature and bound by the prescriptive period of one year.

CONTRA NON VALENTEM

Wadsworth claims that in the event there exists no applicable fiduciary relationship doctrine, liability exists in tort. Plaintiff's position is that although this suit was filed more than one year after the last sexual encounter between the parties, prescription was suspended by the doctrine of contra non valentem. We disagree.

The doctrine of contra non valentem agere nulla currit praescriptio ⁴ suspends the running of prescription where the circumstances of the case fall into one of four following categories: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with a contract or connected with the proceedings that prevented the creditor from suing or acting; (3) where the debtor himself has done some act that effectually [98-0486 La.App. 4 Cir. 6] prevents the creditor from availing himself of his cause of action; and, (4) where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant. Wimberly v. Gatch, 635 So.2d 206 (La.1994).

The first two categories are not relevant to the instant case. However, plaintiff relies upon categories three and four to support her position that prescription has been suspended. According to plaintiff, because defendant prevented her from filing suit and because of her emotional and mental instability, she was unable to file her claim.

Where Plaintiff Claims Defendant Prevented Her From Filing Suit

In Bock v. Harmon, 526 So.2d 292 (La.App. 3 Cir.), writ denied 531 So.2d 275 (La.1988), plaintiffs, who were the children of the defendant, sued him for sexually abusing them when they were children. The suit was filed nearly three years after the last act of abuse. One of the plaintiffs was a...