Fust v. Arnar-Stone Laboratories, Inc., ARNAR-STONE

Citation736 F.2d 1098
Decision Date23 July 1984
Docket NumberARNAR-STONE,No. 84-3057,84-3057
PartiesDarlene FUST, wife of/and George H. Fust, Sr., Individually and on behalf of his minor son, George H. Fust, Jr., Plaintiffs-Appellants, v.LABORATORIES, INC., et al., Defendants, Herman L. Fontenelle, M.D., et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Orrill & Avery, R. Ray Orrill, Jr., New Orleans, La., Anthony V. Ligi, Jr., Metairie, La., for plaintiffs-appellants.

Lemle, Kellher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, La., for Fontenelle, et al.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, POLITZ and JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

The appeal in this diversity case from the grant of defendants' motion for summary judgment requires a determination of the time allowed for asserting a medical malpractice claim under Louisiana law.

Facts

Darlene Fust received prenatal care from Dr. Herman L. Fontenelle from March 1975 until November 1975 when her son George Fust, Jr. was born. During the pregnancy, Dr. Fontenelle administered several drugs to Mrs. Fust which allegedly caused severe birth defects to her son. Mrs. Fust maintains that it was not until August 1979 that she learned the defects were causally related to the drugs received during pregnancy. In January 1980, Mr. and Mrs. Fust, individually, and on behalf of their minor child, filed suit against five drug manufacturers and Dr. Fontenelle alleging that the drugs had caused George Fust, Jr. to suffer severe choreo-atheroid type cerebral palsy and spastic quadriplegia. The drug manufacturers were voluntarily dismissed, and following the death of Dr. Fontenelle, his malpractice insurer was added as a defendant. The suit was then stayed pending completion of the medical review panel procedures required by Louisiana law. La.R.S. 40:1299.47. Thereafter the defendants sought summary judgment on the grounds that under La.R.S. 9:5628 the claim was prescribed. The district court found the claim untimely filed.

Analysis

When does a medical malpractice claim prescribe under Louisiana law? The answer to that question depends on the applicability of La.R.S. 9:5628, effective September 12, 1975, 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.

Prior to the advent of the time period described in La.R.S. 9:5628, medical malpractice claims prescribed one year from the date of the malpractice or the date when the patient actually knew or should have known that the malpractice had occurred. La.Civ.Code arts. 3536 and 3537; Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653 (5th Cir.1979). The Civil Code did not contain the three year maximum period; that absolute limitation was added by the 1975 legislation.

In this case, the alleged malpractice occurred continuously between March and November 1975. Mrs. Fust purportedly learned of the possible negligence of the obstetrician in August of 1979, four years later. Suit was filed within five months of the purported discovery of negligence.

If R.S. 9:5628 applies, as held by the district court, the Fust claims are barred by the absolute three-year limitation. If that statute does not apply, and if the allegation of the date of first knowledge is correct, a matter which is not free of challenge, the claims were timely asserted. Since the majority of the period of prenatal care accrued before the effective date of R.S. 9:5628, we must address the issue of its retroactive application.

The leading case on the retroactivity of this statute is Lott v. Haley, 370 So.2d 521, 524 (La.1979), in which the Louisiana Supreme Court stated:

According to the general rule, statutes of limitation are accorded retroactive application. However, in the instant case, La.R.S. 9:5628 operates to eliminate plaintiff's vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his...

To continue reading

Request your trial
20 cases
  • Federal Deposit Ins. Corp. v. Howse
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 4, 1990
    ...are considered to be procedural rather than substantive. FDIC v. Petersen, 770 F.2d 141, 142 (10th Cir.1985); Fust v. Arnar-Stone Labs, Inc., 736 F.2d 1098, 1100 (5th Cir.1984) ("Statutes of limitation, being procedural and remedial in nature, are generally accorded retroactive effect, unle......
  • Jackson v. Thweatt
    • United States
    • Supreme Court of Texas
    • March 9, 1994
    ...procedural rules apply retroactively. See United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Fust v. Arnar-Stone Labs, Inc., 736 F.2d 1098, 1100 (5th Cir.1984). In accordance with this principle, most courts have concluded that section 1821(d)(14) applies retroactively to......
  • U.S. v. Seale
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 9, 2008
    ...... "usually apply to pending cases and have retroactive effect"); Fust v. Arnar-Stone Labs., Inc., 736 F.2d 1098, 1100 (5th Cir.1984) ......
  • Johns v. Evergreen Presbyterian Ministries, Inc.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • July 16, 1993
    ...409 (1916) (Holmes, J.); and 2 Sutherland, Statutes & Statutory Construction § 41.04 (Sands rev. 1973)); Fust v. Arnar-Stone Laboratories, 736 F.2d 1098, 1100 (5th Cir. 1984) ("Statutes of limitations, being procedural and remedial in nature, are generally accorded retroactive effect, unles......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT