Geiger v. State ex rel Dept. of Health

• Decision Date: 12 April 2002
• Docket Number: No. 2001-CC-2206.,2001-CC-2206.
• Citation: 815 So.2d 80
• Parties: Bennett GEIGER and Peggy Pendarvis, Individually and on Behalf of their Minor Daughter, Suzanne Nicole Pendarvis, v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITAL and Earl K. Long Medical Center.
• Court: Louisiana Supreme Court

815 So.2d 80

Bennett GEIGER and Peggy Pendarvis, Individually and on Behalf of their Minor Daughter, Suzanne Nicole Pendarvis, v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITAL and Earl K. Long Medical Center.

No. 2001-CC-2206.

Supreme Court of Louisiana.

April 12, 2002.

Richard P. Ieyoub, Attorney General, Barry G. Toups, Thibodaux, for applicant.

Steven A. Adams, for respondent.

Carlton Jone, III, Larry M. Roedel, Baton Rouge, for Louisiana Patient's Compensation Fund

KIMBALL, J.

In this medical malpractice suit against the state, the state filed an exception of prescription which was overruled by the trial court. The court of appeal affirmed on the ground that prescription was interrupted by a previous and timely-filed products liability suit which alleged solidary liability between the products liability defendants and the state. In this court, the parties admit that the evidence shows that the products liability suit was not timely, and neither party advocates the correctness of the court of appeal's reasoning, thereby rendering this issue moot. For the following reasons, we find that the medical malpractice suit against the state has prescribed from the date of the act of alleged malpractice, but we remand the case to the trial court for a hearing on whether the plaintiffs' claim has prescribed from the date of discovery of the act of alleged malpractice.

FACTS AND PROCEDURAL HISTORY

The plaintiffs are the parents of a seven-month-old child who fell from an indoor swing and was treated at Earl K. Long Hospital in Baton Rouge. Individually and on behalf of their minor child, the plaintiffs filed suit on July 14, 1993 against Spalding & Evenflo Companies, Inc., Evenflo Juvenile Furniture Co., and Infanseat in products liability, and against the Department of Health and Human Resources and Earl K. Long Memorial Hospital in medical malpractice. The plaintiffs alleged that the products liability defendants and the medical malpractice defendants were liable "jointly, severally and in solido."

On August 4, 1993, the state filed exceptions of prematurity and lack of subject matter jurisdiction on the ground that the plaintiffs had not presented their complaint to a state medical review panel before filing suit, as required by La. R.S. 40:1299.39.1(B)(1)(a)(i)¹. The trial court sustained those exceptions and dismissed the plaintiffs' medical malpractice claims against the state without prejudice on September 3, 1993. The products liability defendants filed a motion for summary judgment on December 8, 1994, but the record does not reveal what action was taken on that motion or what ultimately became of that suit. According to the court of appeal, the plaintiffs dismissed with prejudice their suit against the products liability defendants on September 25, 1995.

It is undisputed that the plaintiffs filed a request for a medical review panel on August 20, 1993.² In June of 1996, the medical review panel rendered its opinion, finding that the evidence supports a conclusion of medical malpractice. On June 26, 1996, the plaintiffs filed a second lawsuit, which was against the state alone in medical malpractice.

The state filed an exception of prescription to the 1996 suit on August 3, 1999, and the trial court held a prescription hearing in October of that year. At the hearing, the state argued that the claim had prescribed because more than one year had elapsed from the date of the act of alleged malpractice before the plaintiffs filed their panel request, and that, under LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, the filing of the 1993 suit did not interrupt the running of prescription. The plaintiffs countered that the claim had not prescribed from the date of the act of alleged malpractice because the 1993 suit did indeed interrupt prescription, that the interruption lasted until the suit was dismissed, and that the panel request was therefore timely because it had been filed before the suit was dismissed. On March 17, 2000, the trial court overruled the exception of prescription after considering the evidence and the law, but without giving specific reasons.

From this ruling, the state applied for supervisory writs, which the court of appeal denied on October 6, 2000 in a two-to-one decision. On January 5, 2001, we granted writs and remanded the matter to the court of appeal for briefing, argument, and opinion. Geiger v. State through the Dept. of Health & Hosp., 00-3073, p. 1 (La.1/5/01), 777 So.2d 1238, 1238. On remand, the court of appeal again denied writs in a two-to-one decision. Geiger v. State through the Dept. of Health & Hosp., 00-0784, p. 1 (La.App. 1 Cir. 6/22/01), 812 So.2d 669 (unpublished opinion). The majority suggested that, had the plaintiffs' first suit in 1993 been against the state alone, it would not have interrupted prescription under LeBreton. It concluded that the 1993 suit did interrupt prescription for a different reason, namely that it was a timely-filed suit which alleged that the products liability defendants and the medical malpractice defendants were solidarily liable. It held that "[a] timely products liability suit filed against these defendants operates as a valid interruption of prescription as to them and any other solidary tortfeasor." Geiger, 00-0784 at p. 3, 812 So.2d at 670. The state again sought writs, which we granted to consider the effect of LeBreton on a timely-filed products liability suit alleging solidarity with the medical malpractice defendants. Geiger v. State through the Dept. of Health & Hosp., 01-2206, p. 1 (La.11/16/01), 801 So.2d 1069.

LAW AND DISCUSSION

In 1975, the legislature responded to what it perceived as a medical malpractice crisis in Louisiana by enacting the Medical Malpractice Act. Spradlin v. Acadia-St. Landry Med. Found., 98-1977, p. 6 (La.2/29/00), 758 So.2d 116, 120. The act provides limited liability and other benefits to those who become a "qualified health care provider" (QHCP). La. R.S. 40:1299.41 et seq.; see also Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 21-3 (1996 & supp.2001). One of the benefits available to a QHCP is a special prescriptive rule for medical malpractice claims, which is found in Title 9 of the Revised Statutes, and which states in pertinent part:

A. No action for damages for injury or death against any ... 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; 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.

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.

La. R.S. 9:5628. This accrual of prescription is suspended by the plaintiffs filing of a request for a review of the claim by a medical review panel. La. R.S. 40:1299.47.³ The suspension runs from the date of the filing of the panel request until ninety days after the plaintiff is notified by the medical review panel of the issuance of its opinion. Id.

The parties do not dispute that the act of alleged malpractice occurred on July 14, 1992.⁴ Therefore, 402 days elapsed from the date of the act until the filing of the panel request on August 20, 1993, which is more than the one year that is allowed under § 5628. The filing of a panel request after the accrual of a year is ineffective to suspend prescription from the date of the act because prescription cannot be suspended after it has run. Rizer v. American Sur. & Fid. Ins. Co., 95-1200, p. 6 (La.3/8/96), 669 So.2d 387, 390-91. Therefore, a principal issue in this case is whether prescription had already accrued on July 14, 1993, or whether some other event interrupted or suspended the accrual of prescription. As noted above, the court of appeal concluded that the plaintiffs filed a timely products liability suit on July 14, 1993 that interrupted prescription as to the products liability defendants and any other solidary tortfeasor, including the state. Geiger, 00-0784 at p. 3, 812 So.2d at 670.

In this court, the state contends that the court of appeal was incorrect in relying on the solidarity alleged in the "timely" products liability suit for two reasons. First, the state points out that the plaintiffs admitted to this court that the child's fall occurred on July 13, 1992, and the products liability claim therefore prescribed on July 13, 1993, rendering untimely the products liability suit filed on July 14, 1993. Second, the state argues that solidarity between the products liability defendants and the medical malpractice defendants was never established in the 1993 suit, and cannot now be established because that suit was dismissed in its entirety. In response, the plaintiffs admit the evidence shows that the products liability suit was not timely, but they maintain that that is of no moment because they are not arguing that prescription was interrupted by a timely-filed products liability suit alleging solidarity with the medical malpractice defendants. In fact, plaintiffs' counsel stated although he agreed with the result reached by the court of appeal, he did not agree with the way the court arrived there.

Because the parties do not dispute that the evidence shows that the products liability suit was untimely, and because neither the plaintiffs nor the state advocate the interruption of prescription by a timely-filed products liability suit alleging solidarity with the medical malpractice defendants, such is no longer at issue in this case.

The state further contends that its...