Hebert v. Doctors Memorial Hosp.

• Decision Date: 31 March 1986
• Docket Number: No. 85-C-2277,85-C-2277
• Parties: Herman HEBERT and Lucy Hebert v. DOCTORS MEMORIAL HOSPITAL.
• Court: Louisiana Supreme Court

Page 717

486 So.2d 717

Herman HEBERT and Lucy Hebert v. DOCTORS MEMORIAL HOSPITAL.

No. 85-C-2277.

Supreme Court of Louisiana.

March 31, 1986.

Larry P. Boudreaux, Roy A. Jefferson, Jr., for applicant.

Donald T.W. Phelps, Daniel Reed, Seale, Smith & Phelps, for respondent.

CALOGERO, Justice.

Did the trial and appeal courts correctly dismiss plaintiffs' medical malpractice lawsuit against a treating physician because it had prescribed? If not, was the lawsuit nonetheless perempted by virtue of La.Rev.Stat. Sec. 9:5628 because it was not filed within three years from the date of the alleged negligence? ¹

For the reasons which follow we answer both of the foregoing questions in the negative, reverse the lower court rulings and remand to the district court for further proceedings.

On March 17, 1975, Mrs. Lucy Hebert, while a patient at Doctors Memorial Hospital in Baton Rouge, fell to the floor and sustained injuries. Within a year, on March 15, 1976, she sued the hospital. Evident only from the record of the case and included filings in the clerk's office, the suit remained pending in the district court, when on October 3, 1983 plaintiffs, Mr. and Mrs. Hebert, amended their petition and added Dr. Morgan as a defendant. On January 12, 1984 a "limited motion to dismiss," with prejudice, signed by plaintiffs' attorney, and accompanied by an order or judgment dismissing the suit with prejudice as to the hospital, was filed in the record.

On February 22, 1984 Dr. Morgan filed an exception of prescription and attached a "restrictive receipt and release" dated 2/25/81 (but by admission of the parties executed 2/25/82 ) and a memorandum in support of the exception.

In the restrictive receipt and release plaintiffs acknowledged receipt of money and settlement of their claim against Doctors Memorial Hospital and agreed "to dismiss immediately [the lawsuit] as to Doctors Memorial Hospital, only, with prejudice." They further expressly reserved any claims they might have against any other "person, firm or corporation who may be liable to them as a result of the injury" which Mrs. Hebert suffered at the hospital.

In opposition to the exception of prescription plaintiffs argued that their amended petition adding Dr. Morgan related back to the date of filing of the original petition which had named the hospital alone as a defendant. Alternatively, they contended that prescription as to the claim against Dr. Morgan was interrupted by timely suit against the hospital, a solidary obligor, and that such interruption continued as long as the suit against the hospital remained pending. That was until at least October 3, 1983, the date the amending petition adding Dr. Morgan was filed, for it was not until January 12, 1984 that a judgment dismissing the hospital was signed and filed in the record.

The district judge maintained the exception of prescription. The Court of Appeal affirmed. First, they correctly held that the amended pleading adding Dr. Morgan did not relate back to the date of the filing of the pleading. "[A]rt. 1153 does not authorize the relation back of an amendment which merely adds a new defendant. Lowe v. Rivers, 448 So.2d 848, 850 (La.App. 2d Cir.1984) (citing McClendon v. Security Insurance Co., 340 So.2d 426, 428 (La.App. 4th Cir.1976))." Hebert v. Doctors Memorial Hospital, 477 So.2d 1227, 1229 (La.App. 1st Cir.1985). La.Code Civ.Pro. art. 1153 states that

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La.1983) this Court enunciated four factors which must be satisfied in order for a subsequent amendment to relate back to the date of the filing of the original petition. Those factors are:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;

(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;

(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;

(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Defendant admits that the first criterion of the Ray test is met. As to the second, however, there is no evidence in the record that Dr. Morgan had any knowledge of the pendency of plaintiff's March 15, 1976 suit against Doctors Memorial until he was subpoenaed on August 31, 1981, to testify at a trial set for September 28, 1981. And it cannot be said that but for a mistake concerning identity of the proper party defendant, the action would have been brought against him (third criterion). The properly identified hospital, alone, and not Dr. Morgan, was named in the original suit, unlike in Ray v. Alexandria Mall where a mistaken "Alexandria Mall" rather than the correct "Alexandria Mall Company" was originally named. Most significantly however, Dr. Morgan was not a substitute defendant and was indeed a wholly new and unrelated defendant (fourth criterion).

Next, plaintiff argued that irrespective of whether the petition adding Dr. Morgan is to be construed as filed in 1976 because it "relates back," timely suit against the hospital interrupted prescription on the claim against Dr. Morgan, for Doctors Memorial was assertedly a solidary obligor (C.C. art. 1793), ² and the interruption continued as long as suit against the hospital was pending, Louviere v. Shell Oil Co., 440 So.2d 93, 96 (La.1983). The Court of Appeal concluded, however, that the suit against the hospital was no longer pending after plaintiffs executed releases relative to the hospital on 2/25/82. Under this reasoning, prescription commenced anew on 2/25/82 and the claim against Dr. Morgan prescribed one year later, some seven full months before plaintiffs sued Dr. Morgan on October 3, 1983. For these reasons the Court of Appeal maintained the exception of prescription and dismissed plaintiffs' suit.

Defendant convinced the Court of Appeal that "when plaintiffs settled with and released the hospital on 2/25/82 no other defendants remained in the suit," that "for a period of one year and eight months plaintiffs' suit had no defendant," that "the suit ceased to exist the day plaintiff released the only defendant" for "after that point the suit had no object, no defendant, no substance," despite the absence of a judgment of dismissal; that a suit is not still pending when a sole defendant has been released (the release was not placed of record), and no judgment of dismissal signed or filed.

We come to the contrary conclusion. The lawsuit against the hospital was pending in the Nineteenth Judicial Court, Parish of East Baton Rouge from the moment it was filed on 3/15/76, until it was dismissed by judgment of the court on 1/12/84. In the interim nothing had been done to dispose of the lawsuit. One of the attorneys, probably defendant's, although it might just as well have been plaintiffs', possessed in his office file a release of the hospital executed by the plaintiffs. Also, and this is not necessarily dispositive, the record does not reflect that a motion to dismiss had been signed by plaintiffs' counsel. The signed release, which was in existence on and following 2/25/82, was not filed in court until 2/22/84 when it was attached to Dr. Morgan's exception of prescription and memorandum in support filed that day.

La.Civ.Code art. 3463, which merely codified the jurisprudence, ³ was enacted in 1982. It provides:

Art. 3463 Duration of interruption; abandonment or discontinuance of suit

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial. (Emphasis provided)

Neither the comments nor the jurisprudence offer much help as to what is meant by the phrase "as long as the suit is pending." That is not surprising considering the clarity of the phrase. Black's Law Dictionary (5th ed. 1979) at page 1021, says that "an action or suit is 'pending' from its inception until the rendition of final judgment." It defines "Pendency" at page 1020, as "the state of an action, etc., after it has begun and before the final disposition of it." And final disposition connotes a state of affairs "such that nothing further remains to fix the rights and obligations of the parties." The commonly understood meaning of the word in a legal context is appropriate. ⁴

Defendant's argument that the lawsuit was not pending after plaintiffs signed a release of the hospital relies heavily on La.Civ.Code art. 3078, which provides:

Res Judicata; error; lesion

Transactions ⁵ have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

Defendants contend that plaintiffs' claim against the hospital was res judicata from the day plaintiffs signed the release, i.e., February 25, 1982. Therefore the lawsuit was no longer pending after that date. That argument is simply not convincing.

If an executed release is in fact later determined in court to be valid, it is entitled judicially to "a force equal to the authority of things adjudged." La.Civ.Code art. 3078. Held valid in Court, it will thus support a...