Chaney v. State Through Dept. of Health and Human Resources

• Decision Date: 23 May 1983
• Docket Number: No. 82-C-2773,82-C-2773
• Citation: 432 So.2d 256
• Parties: Belinda Dyson Chaney, wife of/and Joe CHANEY v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.
• Court: Louisiana Supreme Court

Page 256

432 So.2d 256

Belinda Dyson Chaney, wife of/and Joe CHANEY v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.

No. 82-C-2773.

Supreme Court of Louisiana.

May 23, 1983.

Rehearing Denied June 24, 1983.

Leon D. Jackson, Baton Rouge, for applicant.

Duncan S. Kemp, III, Hammond, Authur Massez, for respondent.

MARCUS, Justice.

On May 11, 1981, Belinda Dyson Chaney and her husband, Joe Chaney, filed this medical malpractice action for damages against Dr. Eliseo Richardo Puig, Dr. Wayne Bloodsworth, Dr. Kenneth Brewerton, and the State of Louisiana, through the Department of Health and Human Resources, individually and as the employer of the said doctors.

Plaintiffs alleged in their petition that on or about June 20, 1977, Mrs. Chaney, then an unmarried minor, was admitted to the Lallie Kemp Charity Hospital, which was owned and operated by the State of Louisiana, for what she understood to be the removal of her appendix. She did not remember signing a consent form for the operation nor was a form signed by her mother. She was operated on by Drs. Puig, Bloodsworth and Brewerton. When the operation was completed, Mrs. Chaney's mother was shown the parts of the body removed and was told that her daughter would be unable to bear children. In addition, she was told that everything had been explained to her daughter. Mrs. Chaney was released from the hospital on June 26, 1977. In the summer of 1978, Mrs. Chaney began to experience severe abdominal pain and returned to Lallie Kemp Charity Hospital for treatment. During the remainder of that year, she went to the hospital about eight times for abdominal pain and was referred to the gynecology clinic where, after being asked as to the location of the pain, she was given a prescription and sent home, all without examination. In 1979, Mrs. Chaney returned to the hospital about six times complaining of the abdominal pain and received the same treatment. During the summer of 1979, Mrs. Chaney sought treatment from a different medical source for her continuing abdominal pain. At this time, she discovered that she had had two abscesses on her womb and was informed that a hysterectomy had been performed on her in 1977. She continued to suffer from abdominal pain and on January 30, 1981, she consulted Dr. Brustowicz who, after examination, informed her that whoever performed this surgery on her at the Lallie Kemp Charity Hospital in 1977 left part of the intestine in her stomach resulting in adhesions and that her pain was a result of this act. On February 4, 1981, Dr. Brustowicz performed a diagnostic laparoscopy, an exploratory laparotomy, an extensive adhesiotomy and an omentectomy on Mrs. Chaney. His post-operative diagnosis was that Mrs. Chaney was suffering from extensive abdominopelvic adhesions.

Plaintiffs asserted that defendants negligently performed surgery on Mrs. Chaney during the course and scope of their employment causing her to suffer abdominal pain for two and one-half years. They further averred that defendants had violated the duty of care owed to Mrs. Chaney by delivering medical care that was below the standard of good medical practice.

Defendants filed a peremptory exception of prescription based on La.R.S. 9:5628. The exception was tried without introduction of evidence thereon. The trial judge rendered judgment sustaining the exception and dismissing plaintiffs' suit at their costs. The court of appeal affirmed. ¹ On plaintiffs' application, we granted certiorari to review the correctness of that judgment. ²

Plaintiffs contend the court of appeal erred in affirming the judgment of the trial judge sustaining the exception of prescription and dismissing their suit. They argue that prescription did not begin to run until Mrs. Chaney discovered the cause of her abdominal pain on January 30, 1981.

The applicable statute on prescription for actions for medical malpractice is La.R.S. 9:5628 which provides:

A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, 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; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.

B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Under this statute, plaintiffs' causes of action for damages arising out of the 1977 operation on Mrs. Chaney and/or the lack of consent thereto have clearly prescribed. The statute provides that "in all events" the action must be filed within three years from the date of the alleged act, omission or neglect. In the instant case, the alleged acts, omissions or neglect giving rise to these causes of action occurred sometime between June 20-26, 1977, when the operation took place. Mrs. Chaney alleges that she did not discover that a hysterectomy had been performed until the summer of 1979. Plaintiffs' suit was filed on May 11, 1981, more than three years and ten months from the acts complained of and more than one year after she discovered that a hysterectomy had been performed without her or her mother's consent.

Despite the clear words of the statute, plaintiffs contend that we should apply the doctrine of contra non valentem agere nulla currit praescriptio so as to prevent the running of prescription under La.R.S. 9:5628 until Mrs. Chaney had knowledge of her cause of action on January 30, 1981. We disagree.

At the time plaintiffs' action was filed, La.Civ.Code art. 3521 provided that: "[p]rescription runs against all persons, unless they are included in some exception established by law." ³ Despite this express statutory provision, our Louisiana jurisprudence has recognized a limited exception where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. The exception is founded upon the ancient civilian doctrine of contra non valentem agere nulla currit praescriptio. ⁴ In Corsey v. State Dept. of Corrections, 375 So.2d 1319 (La.1979), we set forth the categories of situations in which this doctrine applies so as to prevent the running of liberative prescription: (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 which prevented the creditor from suing or acting; (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;...