Crier v. Whitecloud

• Decision Date: 30 October 1986
• Docket Number: No. 84-C-1699,84-C-1699
• Citation: 496 So.2d 305
• Parties: Sharon CRIER v. Dr. Thomas S. WHITECLOUD, III and Children's Hospital.
• Court: Louisiana Supreme Court

Page 305

496 So.2d 305

Sharon CRIER v. Dr. Thomas S. WHITECLOUD, III and Children's Hospital.

No. 84-C-1699.

Supreme Court of Louisiana.

Oct. 30, 1986.

Joseph W. Thomas, Ammon L. Miller, Jr., New Orleans, for applicant-plaintiff.

Stewart E. Niles, Jr., Vivian L. Madison, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Peter T. Dazzio, Baton Rouge, for defendants-respondents.

Ricardo M. Guevara, Baton Rouge, Robert J. Conrad, Jr., Adams & Reese, New Orleans, John McKinley, Monroe, Fred F.L. Herman, New Orleans, Pamela Crawford, Baton Rouge, amicus curiae.

ON REHEARING

MARCUS, Justice.

We granted a rehearing to reconsider whether La.R.S. 9:5628 bars a claim of medical malpractice when the injury results not at the time of the patient's treatment but instead occurs over three years after "the date of the alleged act, omission or neglect."

In 1978, Dr. Thomas S. Whitecloud, III operated on Sharon Crier at Children's Hospital, surgically implanting a Harrington rod in her back to correct her scoliosis. The operation was apparently successful. However, in March of 1982 Ms. Crier began to experience severe back pain. X-rays revealed that the rod in her back was broken. Ms. Crier filed suit against the doctor and the hospital within a year of this discovery. ¹ She alleged that defendants had been negligent in using a defective Harrington rod and/or improperly implanting the rod in her back.

The doctor filed a peremptory exception of prescription based on 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.

After a hearing, the trial judge sustained the doctor's exception and dismissed plaintiff's suit as to him. The court of appeal, after noting that the sole issue before it was the constitutionality of La.R.S. 9:5628, found that the statute did not violate Ms. Crier's rights to due process, equal protection and open access to courts guaranteed by the Louisiana constitution. Accordingly, it affirmed the judgment of the trial court. ² On Ms. Crier's application, we granted certiorari to review the correctness of that decision. ³ We did not reach the constitutional issues on original hearing because we concluded that La.R.S. 9:5628 is a prescriptive statute and that "because the onset of injury marked the first point in time that the courts could take cognizance of plaintiff's claim, ... the commencement of prescription on any 'action for damages for injury' resulting from the initial act or omission was suspended until the injury actually occurred." We granted a rehearing to consider whether this decision is a correct interpretation of Louisiana law and whether it conflicts with Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986), rendered the same day as our original opinion in this case.

Hebert involved a medical malpractice suit timely filed against a hospital. A doctor was made an additional defendant more than three years after the date of the alleged malpractice. We first noted that La.R.S. 9:5628 now governs the time for filing medical malpractice actions. It provides that a suit must be brought within one year from the date of the alleged act, omission or neglect, or within one year from date of discovery of same. With respect to claims filed within one year from date of discovery, suit must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect. We concluded that La.R.S. 9:5628 is a prescription statute with one qualification, that is, that the contra non valentem ⁴ type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission or neglect. Thus, we found that timely suit against a solidary obligor interrupts the prescription set forth in La.R.S. 9:5628. Hence, the timely suit against the hospital (a purported solidary obligor) interrupted prescription as to the doctor. However, we noted in a footnote that our holding assumed that the hospital and the doctor were both negligent and thus solidary obligors, which remained to be proven at trial. If plaintiff failed to prove negligence on the part of the hospital, the doctor's peremptory exception of prescription, which can be filed at any time (La.Code Civ.P. art. 928(B)), should be maintained. In effect, we held that if there was no interruption, the suit filed against the doctor more than three years from the alleged act, omission or neglect would have prescribed.

In the present case, suit was filed against all defendants more than "three years from the date of the alleged act, omission or neglect." There was no alleged interruption of prescription. Therefore, under Hebert, Ms. Crier's suit against the doctor would be barred by La.R.S. 9:5628. Nonetheless, Ms. Crier claims that this denial of her right to sue violates her rights of due process and equal protection under the federal and state constitutions, as well as her right of access to the courts guaranteed by art. 1, § 22 of the Louisiana constitution. We must therefore address the constitutionality of La.R.S. 9:5628.

DUE PROCESS

The fourteenth amendment to the United States Constitution and art. 1, § 2 of the Louisiana Constitution guarantee freedom from the deprivation of life, liberty or property without due process of law. "The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' " (Emphasis added.) Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). However, the due process clause does not guarantee access to the courts for all individuals in all circumstances. Boddie v. Connecticut, 401 U.S. 371, 382, 91 S.Ct. 780, 788, 28 L.Ed.2d 113 (1971).

We must look to Louisiana law to determine if Ms. Crier has a property interest in bringing a cause of action that is protected under the due process clause. In order to file suit, a plaintiff must be able to state a cause of action--a wrongful act and resulting damages. Rayne State Bank & Trust Co. v. National Union Fire Insurance Co., 483 So.2d 987, 995 (La.1986). When an injury has occurred which gives the injured party a cause of action, that cause of action becomes "a vested property right which is protected by the guarantee of due process." Burmaster v. Gravity Drainage District No. 2, 366 So.2d 1381, 1387 (La.1978).

However, in this state, "[l]aw is a solemn expression of legislative will." La.Civ.Code art. 1. We held in Burmaster, supra, that

the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries.

In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the United States Supreme Court hypothesized that a cause of action in tort may be a "species of 'property' protected by the Due Process Clause." However, the Court also acknowledged that a state has the right to fashion and limit the causes of action that it recognizes. In denying a due process challenge to the constitutionality of a California statute that gave the members of a parole board absolute immunity from a suit filed due to a wrongful death that resulted from their negligent release of a dangerous inmate, the Court stated:

Arguably, the cause of action for wrongful death that the State has created is a species of "property" protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials. [Footnote omitted.] But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.

The Court determined that the statute in question was rational since the possibility of judicial review might inevitably influence a parole official's exercise of discretion. The Court concluded that the federal courts had "no authority to pass judgment on the wisdom of the underlying policy determination."

In the instant case, the legislature enacted La.R.S. 9:5628 in an attempt to alleviate a "medical malpractice insurance crisis." Malpractice claims were proliferating at the same time that the amounts of damage awards were increasing rapidly. Premiums for malpractice insurance had skyrocketed, forcing doctors to pass increased costs on to patients and creating fears that many physicians would simply abandon the practice of medicine. The increased insurance costs were primarily blamed on the lengthy period in which malpractice claims could be filed. ⁵ The decision by the legislature to limit malpractice actions against "physicians, chiropractors, dentists, or...