Henson v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 28 December 1977
• Docket Number: No. 11648,11648
• Parties: Louis HENSON, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 612

354 So.2d 612

Louis HENSON, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.

No. 11648.

Court of Appeal of Louisiana, First Circuit.

Dec. 28, 1977.

Rehearing Denied Feb. 13, 1978.

Writ Granted March 31, 1978.

David C. Kimmel, Baton Rouge, of counsel for plaintiff-appellant Louis henson.

Donald S. Zuber, Baton Rouge, of counsel for defendant-appellee St. Paul Fire & Marine Ins. Co.

Before LANDRY, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

Plaintiff, Louis Henson, brought this suit against defendant, St. Paul Fire and Marine Insurance Co., as the insurer of Dr. Robert A. Peden. Plaintiff alleged that Peden negligently injured him during surgery on July 5, 1973. Suit was filed on February 19, 1976. Defendant interposed the peremptory exception of prescription. No evidence was received on the exception, the defendant choosing to rely solely on the allegations of plaintiff's petition which showed that suit was filed more than one year after the surgery. St. Paul asserted that the applicable prescriptive period was one year under either the general tort prescription of C.C. Art. 3536 or the special medical malpractice prescription of R.S. 9:5628. ¹ Plaintiff relied on the doctrine of contra non valentem agere nulla currit praescriptio (no prescription runs against a person unable to bring an action) as well as the assertion that the applicable prescriptive period should be ten years under the general contract prescription of C.C. Art. 3544.

For oral reasons assigned, the trial judge held that the applicable prescriptive period was one year and dismissed plaintiff's suit. We reverse and remand.

With respect to the applicable prescriptive period or periods, the fact that an action may constitute a tort does not prevent its also being a breach of contract. The plaintiff in such a situation has two remedies. Federal Insurance Co. v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972). This court has held that in situations where a single set of circumstances gives rise to an action in both tort and contract, the claims are considered separately in determining whether they have prescribed. Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir.), writs denied 320 So.2d 551, 553 (La.1975).

We first address ourselves to plaintiff's tort claim. The applicable prescriptive period for the tort claim is one year. Under both C.C. Art. 3536 and R.S. 9:5628 one year is provided. Therefore the adoption of the special provision in 1975 does not affect this claim. It is apparent from plaintiff's petition that this claim is prescribed unless there has been a suspension or interruption. The doctrine of contra non valentem is available in certain limited situations under Louisiana law. Being a judicially created exception to the rule that prescription runs against all persons not specifically excepted by law (C.C. Art. 3521), it is applied in a limited and restricted sense. Jackson, above.

The requirements for application of the doctrine are set out in Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970). The basic idea behind the doctrine in tort cases is that prescription will not run against one who is unaware of his injuries or the cause of them when such ignorance is caused by the defendant. It is not necessary that the plaintiff have actual knowledge of the facts entitling him to bring his action. He is held to have knowledge of everything to which inquiry based on the knowledge which he does have would have led him. In the case under consideration Henson was aware immediately after the surgery that he had numbness and severe pain in the left side of his face. Dr. Peden informed him that this was normal and would cease in time. In October of 1974, plaintiff consulted Dr. Cox who informed him that he should wait six or eight months and the condition might improve. Under these alleged facts we find, as did the trial court, that as of October, 1974, plaintiff was on notice of sufficient facts to put him on inquiry. Up until that time plaintiff was not aware of his injury. He could reasonably have believed that his pain was a normal and temporary consequence of the operation. However, when he was told that the condition might improve he should have known that an injury had occurred which was apparently caused by the surgery. Suit was filed over one year after plaintiff received this constructive knowledge. Therefore his tort action had prescribed.

On the contractual claim defendant is apparently contending both that the claim has prescribed and that the plaintiff's petition has not stated a cause of action in contract. Defendant never filed an exception of no cause of action and has not used this phrase in brief or argument. However, we feel that his actual position is that there is no cause of action on the contractual claim. In any event, being able to notice this issue on our own motion, we do so. C.C.P. Art. 927.

Looking first to the issue of no cause of action we find that the Third Circuit has held that a medical malpractice claim cannot be considered a contractual claim unless the physician warrants or promises a particular result. Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied 315 So.2d 144 (La.1975). ² The Fourth Circuit has held that such a specific promise is unnecessary in order to found such an action in contract. Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir.), writ denied 254 La. 842, 227 So.2d 590 (1969). We believe that in his petition plaintiff has sufficiently alleged the promise of a particular result to get past the no cause of action exception even under the test of the Third Circuit in Steel, above. (Plaintiff has alleged that Dr. Peden informed him that the surgery would produce a satisfactory result and warranted that no ill effects would ensue from the operation.) However, for the reasons which follow, we choose not to base our decision on this narrow ground, but rather to follow the Fourth Circuit view in Creighton, above.

When a patient goes to a doctor for treatment and the doctor agrees to treat him a contract has been entered into. "Any other conclusion is difficult to reach intellectually." Steel v. Aetna Life & Casualty, 315 So.2d 144 (La.1975) (JJ. Barham and Tate concurring in writ denial); see also C.C. Art. 1816. Any other conclusion would mean that a doctor would have no contractual action against his clients if they refused to pay him. He would be relegated to a quasi contractual theory of negotiorum gestio or unjustified enrichment. Such would certainly not be a logical conclusion.

Having determined that a contract exists in such a situation, we must decide what are the obligations of the doctor. "The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect." C.C. Art. 1903. It follows naturally that the doctor's duty is that of using due care. The obligation under the contract should certainly not be less than one's duty under general tort law. Delaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975).

We therefore agree with the conclusion of the Fourth Circuit in Creighton. This result is also in line with the modern civilian concept of obligations de moyen and with the decisions reached by the courts in both France and Quebec. The Work of the Louisiana Appellate Courts for the 1974-1975 Term Contracts in Particular, 36 La.L.Rev. 417, 421-426 (1976). It is also consistent with the rule of this circuit in attorney malpractice cases. Jackson, above. The decision of the Third Circuit appears to be an importation from the common law. See 70 C.J.S. ...