Griffin v. Kinberger

• Decision Date: 28 May 1987
• Docket Number: No. 85-CC-0657,85-CC-0657
• Citation: 507 So.2d 821
• Parties: Marcus S. GRIFFIN et al. v. Frank KINBERGER, M.D. et al.
• Court: Louisiana Supreme Court

Page 821

507 So.2d 821

Marcus S. GRIFFIN et al. v. Frank KINBERGER, M.D. et al.

No. 85-CC-0657.

Supreme Court of Louisiana.

May 28, 1987.

C. William Bradley, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, et al, for applicant.

Edward Castaing, Jr., Dymond, Crull & Castaing, Henri Wolbrette, III, Stephanie Lawrence, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for respondent.

LEMMON, Justice.

This medical malpractice action presents two issues. The first issue is whether La.R.S. 9:5628, which sets an outside limit of three years on the applicability of the doctrine of contra non valentem agere nulla currit praescriptio in medical malpractice cases, may be used to bar an action based on an act or omission that occurred before September 12, 1975, the effective date of the statute. For the reasons assigned in Maltby v. Gauthier, 506 So.2d 1190 (La.1987), we hold that La.R.S. 9:5628 is not applicable to claims which became vested before the effective date of the statute.

The second issue is whether plaintiffs, more than a year prior to filing this suit, had actual or constructive knowledge that they were the victims of medical malpractice sufficient to commence the running of the one-year prescriptive period of La.C.C. art. 3492 (formerly La.C.C. art. 3536 and 3537). We conclude that plaintiffs, under the evidence apparently accepted by the trial court, were not unreasonable in failing to recognize at some earlier point in time the connection between the condition upon which this action is based and the alleged malpractice.

On November 13, 1964, plaintiff Sharon Anselmo gave birth to a child at Southern Baptist Hospital. Because the child was born prematurely, he was placed in an incubator and was administered oxygen. This oxygen treatment continued from the date of birth through November 30 or December 2, 1964.

On August 17, 1983, plaintiffs filed this action for damages caused by medical malpractice. They alleged that the negligent administration of oxygen at the time of the child's birth caused retrolental fibroplasia (RLF) in the child's left eye, resulting in total blindness of that eye, and that the child has also developed glaucoma in his left eye, a myopic right eye, and cataracts and RLF in his right eye.

Plaintiffs further alleged that they first noticed the child was having trouble with his eyes sometime in 1965, when Mrs. Anselmo brought this problem to the attention of defendant Dr. Kinberger, the original pediatrician, and an ophthalmologist. The doctors consistently assured Mrs. Anselmo, who was an eighteen-year old mother with a sixth grade education, that this condition was a natural and expected consequence of the necessary administration of oxygen to premature children at birth. ¹ She asserted that she had no reason to believe that the child's condition was the result of neglience or the improper administering of oxygen at birth.

Plaintiffs further alleged that they were first alerted to the possibility of medical malpractice on October 21, 1982 when Mrs. Anselmo read a newspaper article that reported a substantial settlement in Florida of a claim involving a child who had lost her vision in one eye after being negligently treated with oxygen during a premature birth. The following month, Mrs. Anselmo took the child to another hospital, where a doctor diagnosed the child as having retrolental fibroplasia. She contended that this was the first time she had ever heard of this disease.

Defendants filed exceptions of prescription, pleading the three-year prescription of La.R.S. 9:5628 and the one-year prescription of La.C.C. art. 3492. The trial court overruled the exceptions, citing Lott v. Haley, 370 So.2d 521 (La.1979). The court, however, did not directly address the issue of the one-year prescription under La.C.C. art. 3492. The court of appeal denied defendants' application for supervisory writs. We granted certiorari to address these issues. 497 So.2d 1005 (La.1986).

A prescriptive statute is subject to the discovery rule embodied in the doctrine of contra non valentem agere nulla currit praescriptio, when that doctrine is invoked to suspend the running of prescription during the period in which the cause of action was not known or reasonably knowable to the plaintiff. Corsey v. State of Louisiana, Department of Corrections, 375 So.2d 1319 (La.1979). The enactment of La.R.S. 9:5628 placed an outside limit of three years on the applicability of the doctrine in medical malpractice cases. However, La.R.S. 9:5628 is not applicable in this case, since the act or ommission which gave rise to the cause of action...