Breaux v. Aetna Casualty & Surety Company

• Decision Date: 29 September 1967
• Docket Number: Civ. A. No. 14509.
• Parties: Charles J. BREAUX, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY and Bristol Laboratories, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

272 F. Supp. 668

Charles J. BREAUX, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY and Bristol Laboratories, Inc., Defendants.

Civ. A. No. 14509.

United States District Court E. D. Louisiana, New Orleans Division.

August 18, 1967.

As Amended September 29, 1967.

Charles F. Barbera, Mollere & Barbera, Metairie, La., for plaintiff.

Henry B. Alsobrook, Jr., Adams & Reese, New Orleans, La., for defendant Aetna Casualty & Surety Co.

Lloyd C. Melancon, McLoughlin, Barranger, West & Provosty, New Orleans, La., for defendant Bristol Laboratories, Inc.

BOYLE, District Judge:

The defendants move for summary judgment on the grounds, among others, that the plaintiff's suit was barred by the statute of limitations.¹ We grant the motions.

Plaintiff, Charles J. Breaux, was hospitalized on October 7, 1958, presumably for a checkup. He had a history of gastrointestinal, as well as renal, difficulty. After several days in the hospital undergoing various tests, plaintiff developed a fever which, by October 21, 1958, was running so high, his physician, Dr. Goldman, the insured of defendant Aetna Casualty & Surety Company, administered a new and extremely potent antibiotic known as Kantrex, manufactured by defendant Bristol Laboratories, Inc. The drug was administered until October 29, 1958, at which time it was discovered that plaintiff had suffered a serious impairment to his hearing, namely, nerve deafness. Although plaintiff's fever subsided, attempts to flush the Kantrex from plaintiff's system failed to restore his hearing.

On May 1, 1964, plaintiff filed this suit against Aetna Casualty & Surety Company and Bristol Laboratories, Inc. He alleges that Bristol knew or should have known that Kantrex had dangerous propensities when administered to elderly patients (plaintiff was 49 years old at the time) with renal impairment, and that the drug was marketed with insufficient warning of the possibility of ensuing deafness. Plaintiff alleges that the doctor was negligent in administering the drug, which he knew or should have known would impair his patient's hearing.

The only questions raised by these motions, which we now consider and dispose of, are whether or not the claims against the defendants have prescribed. Since Federal jurisdiction in this case is grounded upon diversity, we must look to the law of Louisiana for the solution.

First treating the claim arising out of the alleged malpractice of the doctor, we must conclude that the prescriptive period applicable thereto is one year. The leading case standing as authority for this conclusion is Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963). This case lays down the rule that a malpractice claim lies in tort, unless the defendant has entered into a contract warranting a particular result. Thus, unless the doctor has made such a guarantee, the prescriptive period applicable is one year under Article 3536 of the Revised Civil Code. In the case at bar, plaintiff's counsel concedes that no guarantee of particular results was given by the doctor, and that there existed the usual doctor-patient relationship.² Plaintiff himself admitted that no such guarantee was made.³ The plaintiff's wife affirmed that no guarantee was made.⁴

In Kozan v. Comstock, 270 F.2d 839 (5th Cir., 1959), the Court in a well considered opinion held that a malpractice action against a physician prescribes in one year under Louisiana law. Judge Wisdom, as organ of the Court, wrote:

"It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even in these instances in which no contract is present the physician still owes a duty to the patient.

The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view.

We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant that a particular result will be obtained. In such instances an action in contract may lie against a physician. However, in the absence of a special warranty or contract, a malpractice suit against a physician is an action in tort and is subject to the limitation period for tort actions." (Citations omitted. Emphasis supplied. See pages 844, 845 of the case report.)

In Mills v. Doty, 116 So.2d 710 (La. App., 1959), the Court held that the one-year prescriptive period applied to an action against a chiropractor whose treatment caused injury.

Likewise, in Bresler v. Nugent, 134 So. 2d 694 (La.App., 1961), the Court, citing Kozan v. Comstock, supra, held that an action against a hairdresser whose negligent treatment of the plaintiff caused baldness sounded in tort rather than contract for the purposes of prescription, noting that the tort arose out of the "misperformance of a contract."

The plaintiff relies on the case of Brooks v. Robinson, 163 So.2d 186 (La. App., 1964), in support of his contention that the ten-year (contract) prescriptive period should be applied. However, it appears that the Court of Appeal in that case held that where a doctor does not perform at all, after agreeing to treat, rather than rendering some, but negligent, treatment, the patient's action lies in contract for purposes of the applicable prescriptive period.

Assuming, arguendo, that the Brooks case is, on legal principle, not in conflict with Phelps, it is, however, distinguishable on its facts from the case at bar. The case at bar involves the alleged negligent administration of a drug, and not, as in the Brooks case, the alleged failure of a doctor to act at all, after apparently assuming a duty to treat Brooks. Even if the Court of Appeal in Brooks sought to vary the rule set out in Phelps, supra, it would not be in keeping with the Louisiana jurisprudential system to follow one divergent Court of Appeal decision in the face of a Supreme Court decision and a long line of other Court of Appeal decisions to the contrary.

Additionally, plaintiff can find no comfort in the fact that the Supreme Court denied writs in Brooks v. Robinson, 246 La. 583, 165 So.2d 481 (1964), since such denial was premised upon the fact that there was no final judgment to be reviewed.⁵

The argument in support of applying Brooks is further diluted by the fact that cases decided subsequent thereto have followed Phelps. In the case of Springer v. Aetna Casualty and Surety Co., 169 So.2d 171 (La.App., 1964), the Fourth Circuit Court of Appeal applied the prescriptive period of one year to a malpractice claim. Also in Andry v. Maryland Casualty Co., 244 F.Supp. 143 (E.D.La., 1965), Judge Ellis wrote, "It is now settled in Louisiana that actions alleging medical malpractice sound in tort and hence are governed by the one-year prescription applicable to `offenses or quasi offenses'" (citing Phelps and Scott v. Board of Supervisors of L. S. U., 336 F. 2d 557 (5th Cir., 1964)). It is of interest that the Scott case, supra, decided after Brooks, held that a medical malpractice suit sounded in tort for purposes of the requirement of legislative authorization to sue the sovereign (citing Phelps).

The next question which must be determined is what prescriptive period is applicable to the claim against the drug company defendant. In order to resolve this question it is necessary to analogize the instant case to those cases dealing with other instrumentalities or products intended for intimate bodily use. Among such products are soft drinks, cigarettes and the like. It now seems well established that such actions arising out of "implied warranty" of fitness for human consumption are to be treated as actions sounding in tort. See R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir., 1963) and Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir., 1963) and the cases cited therein. Logically speaking, it would appear that if cases wherein impurity or unwholesomeness of the product is alleged are treated as claims arising in tort, a fortiori does the instant claim sound in tort where the action is predicated upon failure to warn.⁶

Having concluded that the claim against Bristol Laboratories, Inc. lies in tort, it is an inescapable consequence that the prescriptive period of one year must be applied. See R. J. Reynolds Tobacco Co. v. Hudson, supra, and the cases cited therein.

The final inquiry is whether the one-year prescriptive period had elapsed prior to the institution of this suit on May 1, 1964. When the one-year period commenced to run is a question of fact. The rule for determining this factual issue is well expressed in Springer v. Aetna Casualty and Surety Co., s...