Bordelon v. Medical Center of Baton Rouge

• Decision Date: 21 October 2003
• Docket Number: No. 2003-C-0202.,2003-C-0202.
• Citation: 857 So.2d 376
• Parties: Jody and Lora BORDELON Individually, and on Behalf of their Minor Child, Brandon, v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
• Court: Louisiana Supreme Court

857 So.2d 376

Jody and Lora BORDELON Individually, and on Behalf of their Minor Child, Brandon, v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.

No. 2003-C-0202.

Supreme Court of Louisiana.

October 21, 2003.

Daniel A. Reed, Baton Rouge, Seale, Smith, Zuber & Barnette; Charles F. Gay, New Orleans, Ann M. Halphen, Amy C. Lambert, Baton Rouge, Adams & Reese, for Applicant.

Joseph E. Stockwell, Baton Rouge, for Respondent.

VICTORY, J.

We granted this writ application to determine whether failure to request service of citation on a defendant within 90 days of the filing of a lawsuit, as required by La. C.C.P. art. 1201, renders the entire lawsuit an absolute nullity by operation of law, such that the filing of that suit does not serve to interrupt prescription under La. C.C. art. 3463. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and find that, in the absence of non-service for bad faith reasons, the filing of the lawsuit interrupts prescription, even if the defendant is not served within 90 days.

FACTS AND PROCEDURAL HISTORY

This is a medical malpractice case brought by the parents of Brandon Bordelon against Dr. Andrew Zaruski and the Medical Center of Baton Rouge for failure to diagnose testicular torsion in December of 1995. After a medical review panel issued an opinion, the Bordelons timely filed suit against Dr. Zaruski and the Medical Center on February 6, 1998, in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Service was not requested on either defendant. The Medical Center eventually filed a Motion to Dismiss for failure to request service. The Bordelons did not offer any evidence to oppose the motion or to show good cause for the failure to request service. Thus, the trial court granted the motion to dismiss on August 3, 1998, in open court pursuant to La. C.C.P. art. 1201. The judgment was signed on August 10, 1998. On August 3, 1998, the same day that the motion to dismiss was granted in open court, the Bordelons filed a second suit against the Medical Center in the same district court. The Medical Center filed an exception of prescription on October 26, 1998, which was granted on January 4, 1999, with the trial judge finding that the first suit was effectively abandoned by non-service and did not serve to interrupt prescription. The First Circuit affirmed in part, reversed in part, and remanded the case to the trial court to allow plaintiffs to amend their petition to allege facts which would demonstrate an interruption of prescription. On June 9, 2000, after the second suit was remanded to the district court, the Bordelons amended their petition, pleading that they had timely filed a first lawsuit which interrupted prescription and adding Dr. Zaruski as a defendant. The defendants filed exceptions raising the objection of prescription, and the trial court again sustained the exceptions and dismissed the Bordelon's petition, reasoning:

Failure to serve is to be treated as an absolute nullity. As Black's [Law Dictionary] suggests, a nullity is to be considered as though it never occurred. This is analogous to the treatment of the abandonment provisions.... Here, as with abandonment, an order is not necessary to effectuate the dismissal of the claim. After the 90 day period has passed, by operational (sic) law, the case is deemed dismissed. Although, the plaintiff[s] filed the second suit before the order of dismissal was signed, the case had already been dismissed by operation of law. Thus, the plaintiff[s] cannot take advantage of interruption of prescription. Keeping with the intent of the law, I consider that the initial suit is an absolute nullity. As with abandonment, a nullity is considered never to have occurred. Filing a suit alone, did not interrupt prescription. Without service on the defendants, the lawsuit was an absolute nullity, which does not require a judgment. Therefore, the plaintiff[s'] claim has prescribed, and I'm going to grant this.

The First Circuit Court of Appeal granted the Bordelon's writ application and reversed, finding that the first suit filed within the prescriptive period interrupted prescription as long as that suit was pending, and therefore the filing of the second suit before the judgment was signed dismissing the first suit was timely. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski M.D., 01-2164 (La. App. 1 Cir. 12/20/02), 836 So.2d 407. We granted the defendants' writ application. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski, M.D., 03-0202 (La.4/4/03), 840 So.2d 1209.

DISCUSSION

Prescription runs against all persons unless an exception is established by legislation. La. C.C. art. 3467. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1228; Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206. The three legislative principles on which plaintiff can rely to meet that burden are suspension, interruption, and renunciation. Id.

La. R.S. 9:5628 provides the prescriptive period in medical malpractice cases as follows:

No action for injury or death against any physician, ... hospital ... 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.

In this case, the petition filed on August 3, 1998, reveals on its face that prescription has run. However, plaintiffs allege that prescription was interrupted by virtue of their first suit timely filed on February 6, 1998. Indeed, La. C.C. art. 3462 clearly states that "[p]rescription is interrupted when the ... obligee commences action against obligor, in a court of competent jurisdiction and venue." There is no question that the first lawsuit was filed in a court of competent jurisdiction and venue. Further, plaintiffs rely on La. C.C. art. 3463, which provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.

As the comments to La. C.C. art. 3463 correctly recognize, "if an interruption results and the action is dismissed without prejudice, the period during which the action was pending does not count toward the accrual of prescription. The plaintiff then has the full prescriptive period within which to bring a new action." La. C.C. art. 3463, Comment (b) (citing Hebert v. Cournoyer Oldsmobile-Cadillac-G.M.C., Inc., 405 So.2d 359 (La. 4th Cir.1981)); see also LeBreton, supra at p. 1229

("interruption not only stops the running of prescription, it `annuls the commenced prescription so that after the interruption ceases, a new prescription must commence.'")

Thus, the plaintiffs argue, prescription was interrupted by the filing of their first suit on February 6, 1998, and that suit was pending until August 10, 1998, the day the judgment dismissing the first suit was signed, or at least until August 3, 1998, the day the case was dismissed in open court. Prescription began to run anew from that time, therefore, their second suit was timely filed on August 3, 1998.

Defendants rely on La. C.C.P. art. 1201 for their argument that dismissal for failure to serve within 90 days renders a petition absolutely null such that the suit does not interrupt prescription. La. C.C. art. 1201 provides in part:

(A) Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.

...

(C) Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. Defendant may expressly waive the requirements of this Paragraph by any written waiver.¹

In this case, the first suit was dismissed without prejudice due to plaintiffs' failure to request service upon the defendants within this 90 day time period, pursuant to La. C.C.P. art. 1672(C), which provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Relying on the Third Circuit case of Bellard v. Lake Charles Memorial Hospital, 00-1599 (La.App. 3 Cir. 4/4/01), 787 So.2d 1017, defendants argue that failure to request service on a defendant within the 90-day time period without good cause renders the lawsuit an absolute nullity which does not interrupt prescription. In Bellard, two identical lawsuits were pending at the same time, one filed in August of 1999 and the other filed in February of 2000. However, the defendant was not served within 90 days in the August 1999 lawsuit. The trial court granted an exception of lis pendens and dismissed the second suit.² The...