David v. Our Lady of the Lake Hosp., Inc.

• Decision Date: 02 July 2003
• Docket Number: No. 2002-CC-2675.,2002-CC-2675.
• Citation: 849 So.2d 38
• Parties: Rocky Wayne DAVID v. OUR LADY OF THE LAKE HOSPITAL, INC.
• Court: Louisiana Supreme Court

849 So.2d 38

Rocky Wayne DAVID v. OUR LADY OF THE LAKE HOSPITAL, INC.

No. 2002-CC-2675.

Supreme Court of Louisiana.

July 2, 2003.

Eugene R. Groves, William S. McKenzie, Erick Y. Miyagi, Taylor, Porter, Brooks & Phillips, Baton Rouge, Counsel for Applicant.

Keith D. Jones, Jones, Aaron & Smith, Baton Rouge, Counsel for Respondent.

Clark R. Cosse, III, Baton Rouge, Counsel for amici curiae Louisiana Hospital Association and Metropolitan Hospital Council of New Orleans.

Peter T. Dazzio, Chris LeBlanc, Baton Rouge, Counsel for amicus curiae Louisiana Hospital Association Medical.

John E. Baker, Counsel for amicus curiae Louisiana Patient's Compensation Fund Oversight.

John O. Pieksen, Jr., Jack M. Stolier, New Orleans, Counsel for amicus curiae Rural Hospital Coalition Inc.

Stephen G. McGoffin, Daniel C. Palmintier, Lafayette, David R. Sobel, Alexandria, Counsel for amici curiae HCA Health Services of LA Inc., Doctors Memorial Hospital, North Monroe Hospital, Lakeview Medical Center L.L.C., Lakeview Regional Medical Center, Highland Park Hospital, Medical Center of Baton Rouge, Inc., Lakeside Hospital, Women's and Children's Hospital Inc., Galen Medical Inc., Women's and Children's Hospital (Lake Charles), Highland Hospital (Shreveport), Christus Health, Christus St. Frances Cabrini Hospital, Christus St. Patrick Hospital, Christus Schumpert Health System, Voluntary Hospitals of America Inc.

WEIMER, Justice.¹

We granted this writ to consider whether an individual who contracted hepatitis C from a blood transfusion administered by a hospital in 1979 can bring an action for damages 20 years later if the hospital is held strictly liable for providing contaminated blood. Finding that the prescriptive period of three years² provided in LSA-R.S. 9:5628 bars such an action, we reverse the judgments of the lower courts and remand to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Rocky Wayne David received blood transfusions at Our Lady of the Lake Hospital, Inc. (OLOL) in 1979. The blood was ordered by his treating physician after surgery to remove kidney stones and was collected, processed, and administered by OLOL under the direction of a boardcertified pathologist. Alleging OLOL should be held strictly liable for providing him with blood contaminated with hepatitis C, David filed suit in 1999.

In an exception of prescription OLOL averred David's claim was prescribed pursuant to LSA-R.S. 9:5628 because suit was not filed within three years of his blood transfusions. The trial court denied the exception, concluding plaintiff had one year from actual knowledge of the condition in which to bring his claim.

On February 9, 2001, a five-judge panel of the Court of Appeal, First Circuit granted OLOL's writ application and reversed the trial court's judgment which had overruled the exception of prescription. Citing Boutte v. Jefferson Parish Hospital Service District No. 1, 99-2402 (La.4/11/00), 759 So.2d 45, the appellate court held LSA-R.S. 9:5628 applied to plaintiff's claim even though OLOL was not a qualified health care provider under the Louisiana Medical Malpractice Act at the time of the blood transfusion. Thereafter, this court granted a writ application by David and remanded the case to the appellate court for a full opinion. David v. Our Lady of the Lake Hospital, Inc., 01-0656 (La.5/11/01), 792 So.2d 3.

The first circuit issued an opinion denying OLOL's writ application on the basis of Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921.³

Seeking reversal of the lower courts' rulings on the prescription issue, OLOL filed a writ application with this court, which was granted February 7, 2003. David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.2/07/03), 836 So.2d 81.

DISCUSSION

The sole issue before this court is whether the prescriptive period for a strict liability claim against a hospital arising from a blood transfusion given to a patient in 1979 is governed by LSA-R.S. 9:5628. Despite the fact that this court has addressed the issue on three different occasions in the last eight years, we agree with OLOL that the issue deserves this court's attention once again.

Blood shield legislation/jurisprudence:

In 1968, the legislature enacted Louisiana's first blood shield statute.⁴ Former LSA-C.C. art. 1764 (now repealed) was amended by Act 301 of 1968, adding section B, as follows:

Notwithstanding the provisions of Section A.2. of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.

This blood-shield statute withstood constitutional challenges in appellate courts of three circuits: Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333 So.2d 354 (La.App. 3 Cir.), writ denied, 337 So.2d 220 (La.1976); Koppenol v. St. Tammany Parish Hospital, 341 So.2d 1242 (La.App. 1 Cir.), writ denied, 343 So.2d 1067 (La. 1977); and Adams v. New Orleans Blood Bank, Inc., 343 So.2d 363 (La.App. 4 Cir. 1977). The first circuit noted that by the late 1970's, 47 states had adopted similar statutes and in each instance where constitutionality was challenged the statute was upheld. See, Koppenol, 341 So.2d at 1245.

The plaintiffs also asserted claims of strict liability under Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), which claims were rejected. See, Juneau, 333 So.2d at 358 (in enacting Article 1764(B) the legislature intended for the furnishing of blood to be considered a service for all purposes, not just for the warranty of fitness in a sale); accord, Adams, 343 So.2d at 364; see also, Koppenol, 341 So.2d at 1245, (the legislature considered and weighed the necessity and need for blood against the risk of contracting hepatitis and concluded the need outweighed the risk; the legislature saw fit in Article 1764(B) to exclude this type of injury from the application of warranty (express and implied) and from strict liability, as in RESTATEMENT (SECOND) OF TORTS § 402A (1965).).

Another attempt at recovering damages for tainted blood came in Martin v. Southern Baptist Hospital, 352 So.2d 351 (La. App. 4 Cir.1977), writ denied, 354 So.2d 210 (La.1978). Plaintiff acknowledged that the implied warranty of fitness was barred by LSA-C.C. art. 1764(B). Instead, plaintiff urged entitlement to a cause of action against the hospital for strict liability under LSA-C.C. art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975). The court held that to permit the application of strict liability in these blood cases would instill in the medical profession fear of the use of blood until foolproof tests could be devised, an untenable result. The court cited with approval the provision in LSA-C.C. art. 1764(B) that blood is not a "commodity," but is a medical service, saying this "public policy statute" recognized the life-saving need for use of blood in some cases.

Meanwhile, in its 1975 regular session the Louisiana Legislature enacted a series of laws limiting the rights of medical malpractice claimants. The legislation included the Uniform Consent Law, LSA-R.S. 40:1299.40; the Medical Malpractice Act MMA), LSA-R.S. 40:1299.41 et seq.; the law strengthening the powers of the State Board of Medical Examiners, LSA-R.S. 37:1261 et seq.; and the prescriptive statute for actions for medical malpractice, LSA-R.S. 9:5628 (actions based upon tort, breach of contract or otherwise arising out of patient care shall be brought within one year from the date of the alleged malpractice or from the date of discovery, but no later than three years from the date of the alleged act). Although by 1981 the theory of strict liability had become established in Louisiana, the appellate courts had relied on the 1968 amendment to LSA-C.C. art. 1764 to reject that theory's application in blood cases.⁵ Thus, DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26 (La.1981), was the first case to hold that a plaintiff seeking damages for being transfused in 1973 with blood tainted with hepatitis had a cause of action in strict liability. Justice Dennis, writing for the majority, concluded that blood contaminated with hepatitis virus is defective, i.e., unreasonably dangerous to normal use because the risks involved in receiving a transfusion of blood in this condition are greater than a reasonable consumer would expect. The majority cited LSA-C.C. arts. 2315-2324 and RESTATEMENT (SECOND) OF TORTS § 402A: DEFECTIVE CONDITION, but did not mention comment k of 402A. (See Note 8, infra.) Rejecting defendants' reliance on LSA-C.C. art. 1764(B)(1) to bar strict liability, Justice Dennis explained the liability of the distributor of blood was not one governed by the law of contractual warranties, but by the law of strict liability in tort. The majority interpreted Article 1764(B) as being limited to "that article" and thus, it should not have been read to include an "unspoken legislative intent to modify the strict tort liability of blood banks under Article 2315." Id. at 32.⁶

By Act 611 of 1981, a new civil code article designated as Article 2322.1, and by Act 331 of 1981, a new section designated as LSA-R.S. 9:2797 were enacted, providing that strict liability "shall not be applicable to physicians, hospitals ... or nonprofit community blood banks ... in the... transfusion ... of human blood ... which results in transmission of viral diseases... undetectable by appropriate medical and scientific laboratory tests." Both acts limited the effectiveness of the provisions to causes of action arising after the effective dates of the acts.

The Branch, Boutte, Williams decisions:

In 1994, Justice ...