Borel v. Young

• Decision Date: 27 November 2007
• Docket Number: 2007-C-0419.
• Citation: 989 So.2d 42
• Parties: Minos BOREL, Sr. et al. v. Dr. Clinton YOUNG and Louisiana Medical Mutual Insurance Company.
• Court: Louisiana Supreme Court

989 So.2d 42 (2007)

Minos BOREL, Sr. et al. v. Dr. Clinton YOUNG and Louisiana Medical Mutual Insurance Company.

No. 2007-C-0419.

Supreme Court of Louisiana

November 27, 2007

Opinion Granting Rehearing July 1, 2008.

Concurring Opinion on Denial of Second Application for Rehearing August 29, 2008.

P. Chris Christofferson, APLC, Patricia Christofferson, for applicant.

Judice & Adley, Marc W. Judice, Lafayette, Harry Lane Tuten, III; Gachassin Law Firm, Janice Marie Culotta, Baton Rouge, for respondent.

Judice & Adley, Marc W. Judice, Lafayette, Harry Lane Tuten, III; Gachassin Law Firm, Daniel Charles Palmintier, Nicolas Gachassin, Jr., Lafayette, for respondent, on rehearing.

Kara Maureen Hadican, New Orleans, Robert Jefferson David, Lafayette, for amicus curiae Association for Justice, Louisiana, on rehearing.

Amy Waters Phillips, Baton Rouge, Robert Gahagan Pugh, Jr., Shreveport, for amicus curiae, Louisiana State Medical Society, on rehearing.

William Luther Wilson, Hon. James D. Caldwell, for amicus curiae, State of Louisiana, on rehearing.

KNOLL, Justice.

This medical malpractice action presents the question of whether a lawsuit is perempted by virtue of La.Rev.Stat. § 9:5628 because it was not filed within three years from the date of the alleged malpractice. The plaintiffs filed the instant suit against defendant physician over five years after the alleged malpractice occurred. In response, defendant filed a peremptory exception of prescription and argued before the district court the claim was perempted. The district court agreed and dismissed plaintiffs' claims with prejudice. The court of appeal affirmed, finding, however, the claims had prescribed. We granted this writ to determine whether the three-year time period found in La. Rev. Stat § 9:5628 for filing actions under the Louisiana Medical Malpractice Act ("LMMA") is prescriptive, and therefore susceptible to interruption, or peremptive. Minos Borel, Sr., et al. v. Dr. Clinton Young and Louisiana Medical Mutual Insurance Company, 07-419 (La.5/4/07), 956 So.2d 617. For the following reasons we affirm the result of the court of appeal, finding the plaintiffs' action is perempted by the clear language of La.Rev.Stat. § 9:5628.

FACTS AND PROCEDURAL HISTORY

In April 1999, Mary Borel, age 65, underwent an abdominal ultrasound, which revealed the presence of a mass within her left lower abdomen. Mrs. Borel's internist, Dr. Clinton Young, referred Mrs. Borel to Dr. Aldy Castor, an OB/GYN, for surgical evaluation. Dr. Castor recommended surgery, and on August 18, 1999, Mrs. Borel was admitted to Lafayette General Medical Center ("LGMC"). Dr. Castor performed a left ovarian cystectomy and appendectomy on August 19, 1999. Mrs. Borel tolerated the procedure well. However, Mrs. Borel's condition worsened on the morning after surgery. By 5:30 p.m. that afternoon, her oxygen saturation dropped, her pulse was elevated, and her temperature spiked to 103.8 degrees. She was moved to ICU, intubated, and placed on a ventilator. It was determined that Mrs. Borel was suffering from congestive heart failure of an unknown cause.

On August 21, 1999, Dr. Castor and Dr. Kinchen performed an exploratory laparotomy for possible pelvic abscess. Mrs. Borel was placed on antibiotics, and Dr. Gary Guidry was consulted for pulmonary management. Mrs. Borel developed multiple organ failure and was taken back to surgery on August 25, 1999. She remained on antibiotic therapy, but continued to have difficulty oxygenating and remained unresponsive. By October 15, 1999, Mrs. Borel was transferred to St. Brendan's Long Term Care Facility, where she remained until her death on May 23, 2000.

On August 14, 2000, Mr. Minos Borel, Mrs. Borel's husband, and their children ("plaintiffs") filed a medical malpractice claim with the Patient Compensation Fund ("PCF") against Dr. Young, Dr. Castor, and LGMC. On January 17, 2002, the medical review panel rendered a unanimous opinion finding no breach in the standard of care rendered to Mrs. Borel by Dr. Young, Dr. Castor, or LGMC. The record indicates the plaintiffs received the opinion on January 22, 2002.

On March 28, 2002, the plaintiffs filed suit in district court against LGMC; however, Drs. Young and Castor were not named in this lawsuit. Two years later, pursuant to discovery, in January 2004, plaintiffs learned that LGMC would utilize Dr. James Falterman as an expert witness. Plaintiffs contend they "discovered" for the first time during his deposition taken on February 17, 2005, that Dr. Falterman would testify that the medical treatment provided by Drs. Young and Castor fell below the applicable standard of care in their treatment of Mrs. Borel. Plaintiffs assert, prior to this date, they had no reasonable cause to believe there was negligence by Dr. Young or Dr. Castor from any source qualified to testify on the standard of care required of an internist or an OB/GYN.

Plaintiffs attempted to amend their original petition to add Dr. Young, Dr. Castor, and the physicians' insurer Louisiana Medical Mutual Insurance Company ("LAMMICO") as defendants; however, plaintiffs' motion to amend was denied by the district court. On March 21, 2005, plaintiffs filed a separate lawsuit for malpractice against Dr. Young, Dr. Castor, and LAMMICO, asserting "Dr. Castor and/or Dr. Clinton Young jointly, severally and in solido with Lafayette General Hospital were negligent in the treatment of Mary Borel August 18 through 20, 1999...." In response to this second lawsuit, Dr. Young and LAMMICO ("Defendants") filed an exception of prescription.¹ Plaintiffs argued in response that the filing of suit against LGMC, a joint tortfeasor, interrupted prescription as to all other joint tortfeasors, including Dr. Young, citing La. Civ.Code art. 2324(C).² The lawsuits were ultimately consolidated by motion of the court, and a hearing on defendants' exception was conducted on August 22, 2005.

The district court determined that plaintiffs' claim as to Dr. Young and LAMMICO was perempted. Thus, the district court granted defendants' exception and dismissed plaintiffs' claim against defendants, Dr. Young and LAMMICO, with prejudice. In its written reasons, the district court stated:

The rules governing the time within which a medical malpractice action can be brought are clearly set forth in La. R.S. 9:5628(A), which provides in pertinent part:

No action for damages for injury or death against any physician.... 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)

La. R.S. 9:5628(A) means that in an action against a physician under the medical malpractice act, the plaintiff has one year from the alleged act, omission or neglect or one year from discovery of the alleged act, omission or neglect within which to bring an action. This one year period is, presumably, subject to all of the normal rules applied to suspension and interruption of prescription found elsewhere in the law.

But the second period of time that must be applied to all actions under the medical malpractice act is peremptive in nature and may not be interrupted or suspended. No action may be brought once three years have passed after the alleged act of malpractice under any circumstances. ....

* * *

The plaintiffs filed suit on March 28, 2002 only against Lafayette General Medical Center. Plaintiffs did not file suit against Dr. Clinton Young and LAMMICO until March 21, 2005, far past three years from the date of the alleged act, omission or negligence and more than three years even after Mary Borel's demise. The plaintiffs assert that suit was filed after they learned that, as part of its defense, Lafayette General Medical Center plans to offer physician expert testimony to the effect that Dr. Clinton Young's treatment of Mary Borel fell below the standard of care required under the circumstances. Clearly, under these undisputed facts, any action against these defendants is perempted under the provisions of La. R.S. 9:5628(A).

Plaintiffs appealed this decision, and the Third Circuit Court of Appeal affirmed, but for different reasons. Borel v. Young, 06-352, 06-353 (La.App. 3 Cir. 12/29/06), 947 So.2d 824. The court of appeal, relying on Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986), found both time provisions prescriptive, and examined defendants' exception of prescription in light of LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. The appellate court held the more specific provisions found in the LMMA control the time in which suit must be filed against health care providers covered by the Act, rather than the general codal provisions contained in La. Civ.Code art. 2324(C), and finding La. R.S. 40:1299.47(A)(2)(a)³ controlling, the court concluded suit against Dr. Young was barred by prescription.

The alleged malpractice occurred on May 23, 2000 and a timely medical review panel proceeding was filed against Dr. Young and LGMC, joint tortfeasors, on August 14, 2000. The medical review panel proceedings extended for a period of two years following the alleged date of malpractice. During the pendency of the proceedings, the prescription was suspended. The Plaintiffs were notified of the medical review panel decision on January 22, 2002. Accordingly, we find under La. R.S. 40:1299.47(A)(2)(a), Plaintiffs had until January 29, 2003, to bring Dr. Young, who had been previously named in the medical review panel, into the suit. Their attempt to bring him into the suit on March 15, 2005 was well beyond the time period designated by the...