Cook v. Rigby
| Decision Date | 02 December 2020 |
| Docket Number | 2019 CA 0637 |
| Citation | 316 So.3d 545 |
| Parties | William COOK and Renee Soileau v. Carl Swayze RIGBY, M.D. and Louisiana Medical Mutual Insurance Company |
| Court | Court of Appeal of Louisiana — District of US |
Michael C. Palmintier, Jonathan E. Mitchell, Baton Rouge, Louisiana, Attorney for Appellant Plaintiff—William Cook and Renee Soileau
Kim E. Moore, Kelly J. Rookard, Brian G. Reaney, II, New Orleans, Louisiana, Attorneys for Appellee Defendants— Kapp Surgical Instrument, Inc.
Hebert J. Mang, Jr., Tara S. Bourgeois, Carey M. Nichols, Nancy B. Roberts, Baton Rouge, Louisiana, Attorneys for Appellee Defendants— Carl Swayze Rigby, M.D., and Louisiana Medical Mutual Insurance Company
Vance A. Gibbs, Randal R. Cangelosi, Jason R. Cashio, Baton Rouge, Louisiana, Attorneys for Appellee Defendant— David Walker, M.D., Matthew A. Stair, M.D., Michael L. Bruce, M.D., Radiology Associates, L.L.C., and Louisiana Medical Mutual Insurance Company
Douglas K. Williams, Kelsey A. Clark, Baton Rouge, Louisiana, Attorneys for Appellee Defendants— Our Lady of the Lake Regional Medical Center
Before: Whipple, C.J., McDonald, McClendon, Welch, and Holdridge, JJ.
The plaintiffs, William Cook and Renee Soileau, appeal a trial court judgment in favor of the defendant, Kapp Surgical Instrument, Inc. ("Kapp"), sustaining its peremptory exception raising the objection of prescription and dismissing the plaintiffs’ claims against it with prejudice. For reasons that follow, we reverse the judgment of the trial court.
On September 9, 2014, the plaintiffs filed a petition for damages, naming as defendants Carl Swayze Rigby, M.D. ("Dr. Rigby") and Louisiana Medical Mutual Insurance Company ("LAMMICO"). According to the allegations of the petition, on July 20, 2012, Mr. Cook underwent a heart valve repair
, which was performed by Dr. Rigby. During the procedure, a retractor bolt from one of the surgical instruments fell into Mr. Cook's pericardium.1 Dr. Rigby failed to notice that the bolt had come off of the surgical instrument and completed the surgical procedure, leaving the retractor bolt floating freely around Mr. Cook's pericardium. The plaintiff never saw Dr. Rigby again. On January 29, 2013, Mr. Cook saw his cardiologist, Dr. Fontenot, who took X-rays and found the bolt on the X-rays. It was at this time that Mr. Cook was informed that a piece of surgical equipment had been left in his body during the July 20, 2012 surgical procedure. According to the petition, the bolt remains in Mr. Cook's body and was last seen resting on top of his heart.
In the petition, Mr. Cook further alleged that the cause of the incident and resulting injuries was the substandard care and conduct of Dr. Rigby and that due to this alleged substandard conduct and care, he lives with a retractor bolt inside of his body, which will require further surgical intervention to remove, causing him undue pain, mental anguish, and distress. Mr. Cook alleged that at the time of the incident, there was a policy of professional liability insurance issued by LAMMICO to Dr. Rigby in full force and effect, which provided coverage for the incident sued upon. Accordingly, the plaintiffs sought to recover damages from Dr. Rigby and LAMMICO.2 In addition, Mr. Cook's wife, Ms. Soileau, sought damages for loss of consortium, service, and society.
The plaintiffs further alleged that they had filed a petition to establish a medical review panel with the Commissioner of Administration and Patient's Compensation Fund ("PCF") on July 19, 2013; however, a medical review panel chairman was not appointed within the allotted one-year time period set forth in La. R.S. 40:1299.47 (currently La. R.S. 40:1231.8 ).3 Therefore, the plaintiff asserted that, in accordance with that statute, the parties were deemed to have waived the use of the medical review panel, allowing them to pursue this action in district court. In response to the plaintiffs’ petition, Dr. Rigby and LAMMICO filed an answer generally denying the allegations of liability. In addition, Dr. Rigby and LAMMICO specifically pled the "fault of third parties for whom they [were] not legally responsible in mitigation of bar of any recovery in these proceedings."
Thereafter, on July 13, 2018, the plaintiffs filed an amended and supplemental petition, adding a host of new defendants, including Kapp.4 In the amended petition, the plaintiffs claimed that Mr. Cook's injuries were additionally or alternatively the result of the fault of Kapp, within the meaning of the Louisiana Products Liability Act ("LPLA"), La. R.S. 9:2800.51, et seq.
In response to the plaintiffs’ amended and supplemental petition, Kapp filed a peremptory exception raising the objection of prescription, contending that the plaintiffs’ claims against it were barred by the applicable one-year liberative prescription period, because more than one year had passed from the date the plaintiffs alleged that they discovered the retractor bolt fell into Mr. Cook's chest during his July 20, 2012 surgery. After a hearing on January 14, 2019, the trial court sustained the objection of prescription and dismissed the plaintiffs’ claims against Kapp with prejudice. A judgment in accordance with the trial court's ruling was signed on January 29, 2019, and it is from this judgment that the plaintiffs have appealed.
"Liberative prescription is a mode of barring of actions as a result of inaction for a period of time." La. C.C. art. 3447. Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1275. In this case, the plaintiffs’ claims against Kapp are delictual in nature, brought pursuant to the LPLA. Louisiana Civil Code article 3492 provides, in pertinent part, that La. C.C. art. 3492. The one-year prescriptive period set forth in La. C.C. art. 3492 applies to claims brought pursuant to the LPLA.5 Marable v. Empire Truck Sales of Louisiana, LLC, 2016-0876 (La. App. 4th Cir. 6/23/17), 221 So.3d 880, 889, writ denied, 2017-1469 (La. 11/13/17), 230 So.3d 210 ; American Zurich Ins. Co. v. Caterpillar, Inc., 2012-270 (La. App. 3rd Cir. 10/3/12), 99 So.3d 739, 741.
As noted above, the plaintiffs’ original petition for damages named Dr. Rigby, a physician, and his insurer, LAMMICO, as defendants and arose out of Dr. Rigby's care of Mr. Cook. Claims arising out of patient care against a physician are subject to the special prescriptive periods set forth in La. R.S. 9:5628(A), which provides, in pertinent part, that:
No action for damages for injury ... against any physician, ... whether based upon tort, ... 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, according to the allegations of the plaintiffs’ petitions (both the original and the amended and supplemental), on January 29, 2013, the plaintiffs discovered that the retractor bolt fell into Mr. Cook's chest during the July 20, 2012 surgery. The plaintiffs filed their initial suit against Dr. Rigby on September 9, 2014.6 However, the plaintiffs did not amend their suit to include allegations against Kapp until July 13, 2018—four years after this litigation was instituted and five years after Mr. Cook allegedly became aware of the retractor bolt lodged in his chest.7 Thus, the plaintiffs’ amended and supplemental petition alleging claims against Kapp was prescribed on its face.
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. The three principles on which a plaintiff can rely to meet that burden are: suspension, interruption, and renunciation. LeBreton, 714 So.2d at 1229. A plaintiff may rely on both the principles of suspension and interruption of prescription to defeat an objection of prescription. See Shannon v. Vannoy, 2017-1722 (La. App. 1st Cir. 6/1/18), 251 So.3d 442, 450-451.
Herein, the plaintiffs rely on the principles of both suspension and interruption of prescription. The plaintiffs note that initially, prescription was suspended by law against all joint tortfeasors during the medical review panel process, and that they timely filed suit against Dr. Rigby during the period prescription was suspended. The plaintiffs then argue that its timely suit against Dr. Rigby interrupted prescription as to all joint tortfeasors, including Kapp.
Since prescription adversely affects creditors, prescription may be suspended in favor of creditors who cannot enforce their claims. LeBreton, 714 So.2d at 1229. Suspension of prescription constitutes a temporary halt to its running; it is best described as a period of time in which prescription slumbers. Id. Prescription is suspended for as long as the cause of suspension continues. Id. After the cause for the suspension ends, the prescriptive time begins running and the time which preceded the suspension is added to the time which follows it to compose the necessary period; only the period of the suspension is deducted. Id. ; see also La. C.C. art. 3472.8 At the root of the principle of suspension is the recognition that a creditor should not lose his legal claim during a period when enforcement of the claim is prevented. LeBreton, 714 So.2d at 1229.
In 1975, the Louisiana legislature, in response to a perceived...
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