Bailey v. Khoury

• Citation: 891 So.2d 1268
• Decision Date: 20 January 2005
• Docket Number: No. 2004-CC-0684., No. 2004-CC-0647, No. 2004-CC-0620
• Parties: Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al.
• Court: Supreme Court of Louisiana

891 So.2d 1268

Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al.

Nos. 2004-CC-0620, 2004-CC-0647, 2004-CC-0684.

Supreme Court of Louisiana.

January 20, 2005.

Adams and Reese, Edward J. Rice, Jr., Arthur F. Hickham, Jr., New Orleans, Counsel for Applicant in No. 2004-CC-0620.

Mang, Batiza, Godofsky & Penzato, Deborah I. Schroeder, Nakisha Ervin-Knott, The Truitt Law Firm, Jack E. Truitt, Madisonville, Broussard and Associates, Kevin K. Gipson, Martin L. Broussard, Jr., New Orleans, Hemelt & Foshee, Deborah C. Foshee, Covington, Seale, Daigle & Ross, Mark E. Seamster, Covington, Counsel for Respondent in No. 2004-CC-0620.

Mang, Batiza, Godofsky & Penzato, Deborah I. Schroeder, Nakisha Ervin-Knott, Counsel for Applicant in No. 2004-CC-0647.

Adams and Reese, Edward J. Rice, Jr., Arthur F. Hickham, Jr., New Orleans, The Truitt Law Firm, Jack E. Truitt, Madisonville, Broussard and Associates, Kevin K. Gipson, Martin L. Broussard, Jr., New Orleans, Hemelt & Foshee, Deborah C. Foshee, Covington, Seale, Daigle & Ross, Mark E. Seamster, Covington, Counsel for Respondent in No. 2004-CC-0647.

The Truitt Law Firm, Jack E. Truitt, Madisonville, Counsel for Applicant in No. 2004-CC-0684.

Adams and Reese, Edward J. Rice, Jr., Arthur F. Hickham, Jr., New Orleans, Mang, Batiza, Godofsky & Penzato, Deborah I. Schroeder, Nakisha Ervin-Knott, Broussard and Associates, Kevin K. Gipson, Martin L. Broussard, Jr., New Orleans, Hemelt & Foshee, Deborah C. Foshee, Covington, Seale, Daigle & Ross, Mark E. Seamster, Covington, Counsel for Respondent in No. 2004-CC-0684.

CALOGERO, Chief Justice.

Rapid advances in many scientific disciplines have led to the application of new methods and technologies in every aspect of medicine. Often these new capabilities require fundamental changes in legal analysis or raise legal questions that never before have required consideration.¹

This case aptly demonstrates the truth of the above statement, as the primary issue involves the impact on the parties' rights, of information gained from advances in medical technology that raises a legal question "that never before [has] required consideration." In fact, our research indicates that the issue presented may be one of first impression, not only in the State of Louisiana, but in every legal jurisdiction in the United States. The court in this case is called upon to decide whether the time limitation for filing a claim seeking recovery of damages arising from birth defects can be considered to commence at a time prior to the child's live birth when, because of information gained from an ultrasound of the fetus, the unborn child's parent was told both that the child had birth defects and that those defects were probably caused by the mother's ingestion of drugs prescribed and dispensed by defendants. This argument is only the most recent of many creative legal arguments flowing from rapidly-changing medical and scientific advances which, over the last century, have transformed the legal principles applicable to liability for birth defects and prenatal injuries.²

The plaintiff in this case is the mother of a child who suffered birth defects, allegedly as a result of her ingestion of the prescription drug Depakote during the early days of her pregnancy. The mother filed suit in medical malpractice against various health-care providers who prescribed the drug, and in tort against various pharmacies that dispensed the drug, both in her individual capacity and in her representative capacity on behalf of the child. We granted these consolidated applications for supervisory writs to determine whether prescription on both of the plaintiff's claims commenced, as the defendants claim, on the date prior to the child's birth when the mother was told that the child would have defects at birth, probably resulting from her ingestion of Depakote during pregnancy, or, as the plaintiff claims, on the later date when the child was born, or whether different prescriptive periods might apply to the plaintiff's two claims. A divided panel of the court of appeal held that prescription commenced on the mother's claim on behalf of the child, and on the mother's individual claim, on the date of the child's birth. Accordingly, the court of appeal affirmed trial court judgments denying exceptions of prescription filed by the defendants. The court of appeal did not differentiate between the two claims in its decision.

For the reasons explained below, we agree with the court of appeal's holding that prescription on both the mother's claim on behalf of the child and the mother's individual claim commenced on the later of the two dates — i.e., the date when the child was born. Because the mother's original petition regarding the two claims was filed less than a year from the date of the child's birth, we affirm the court of appeal judgment denying defendants' peremptory exceptions of prescription.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Ginger Bailey, a psychiatric patient with a long history of treatment and hospitalization for bipolar disorder, had been treated with various prescription medications over the years. From the date of her diagnosis sometime around 1991 until 1997, Ms. Bailey was treated by various physicians and mental health facilities throughout the greater New Orleans area. During that entire period, during which Ms. Bailey had two children, she was taking various types of drugs to treat her symptoms, which included hallucinations, paranoia and depression. Neither of her two eldest children suffered any adverse effects arising from her ingestion of the various medications.

In March 1997, Dr. Robert Ancira at Transitional Hospital Corp. of New Orleans ("THC") prescribed Depakote, which is "one of the most widely prescribed anti-seizure drugs," primarily used to treat epilepsy, but also used to treat bipolar disorder.³ When Dr. Gregory Khoury at Jo Ellen Smith Psychiatric Center later became Ms. Bailey's treating physician, he continued to prescribe Depakote. Ms. Bailey purchased her prescription drug, Depakote, from Walgreen's Louisiana Co., Inc. and Eckerd Corporation. Depakote "has been linked to birth defects and lower IQs among children exposed to it in the womb," with the most common birth defect being spina bifida.⁴ Despite the fact that she was of child-bearing age, Ms. Bailey claims that none of the defendant physicians or pharmacies warned her of the dangers of birth defects arising from the use of Depakote during pregnancy. Ms. Bailey further claims that she had never been told during her years of treatment that any of the drugs she was taking to treat her symptoms could cause birth defects.

Several months after she first started taking Depakote, in late July or early August 1997, Ms. Bailey learned that she was pregnant with her third child. At that time, Ms. Bailey was advised by a nurse at the New Orleans Mental Health Center to discontinue all medications and to contact an obstetrician. The pregnancy was confirmed by an obstetrician, Dr. Wayne Grundmeyer, who advised Ms. Bailey on September 25, 1997, of the risk that her child would suffer birth defects caused by the drugs used during her pregnancy, particularly her use of Depakote. Dr. Grundmeyer's fears were confirmed when an ultrasound⁵ performed by Dr. Thomas Albert on October 25, 1997, revealed that Ms. Bailey's unborn child had developed birth defects (specifically, a neural tube defect⁶) and that the child would probably suffer a number of complications. On November 28, 1997, Ms. Bailey was informed that her unborn child had developed birth defects and that the child's condition had probably been caused by valproic acid exposure⁷ resulting from her use of Depakote. Ms. Bailey was further advised that she should have been counseled against becoming pregnant while taking that medication.

On March 20, 1998, Jada Nacaya Bailey was delivered by caesarian section. At birth, Jada suffered from a number of defects, including Cornelia de lange syndrome,⁸ spina bifida,⁹ and hydrocephalus,¹⁰ with accompanying features and symptomology, including paralysis from the waist down and loss of muscle control. Almost a year after Jada's birth, on March 17, 1999, Ms. Bailey, individually and in her representative capacity on behalf of Jada, filed a medical malpractice action against Dr. Khoury, Jo Ellen Smith Psychiatric Center, Dr. Ancira, and THC, alleging failure to warn of known side effects of Depakote, as well as other acts of medical malpractice. In her petition, Ms. Bailey made the following allegations relative to damages:

That petitioner contends she is entitled to damages which would compensate the minor child and her for the severe disabling injuries received as well as any and all medical expenses incurred, either in the past, present and/or future; mental and physical anguish endured, past, present and future; loss of quality of life; as well as, loss of possibility of earning potential and income, past present and future; and permanent disability of the minor child. Additionally, claimant is entitled to damages for any resulting disabilities on behalf of the minor child and for any other damages to which she and the minor child may be entitled under the jurisprudence of the State of Louisiana.

Two days later, on March 19, 1999, Ms. Bailey filed her first amending and supplemental petition, naming Walgreens and Eckerd as tort defendants, alleging that they were solidarily liable with the medical malpractice defendants named in her original petition.

Dr. Ancira filed an exception of prematurity based on the provisions of La.Rev.Stat. 40:1299.47(B)(1)(a), which requires that medical malpractice actions be presented to a medical review panel prior to the filing of suit. Dr. Ancira was subsequently dismissed by consent of the parties. Dr. Khoury was also dismissed without prejudice on Ms. Bailey's motion. Ms. Bailey later filed a Petition to Institute Discovery in the medical review...