Maltby v. Gauthier

• Decision Date: 18 May 1987
• Docket Number: No. 86-C-1123,86-C-1123
• Parties: Robert M. MALTBY, Individually and on Behalf of his Wife, and Robin Posey Maltby v. Kohlmann GAUTHIER, M.D., Metairie General Hospital, Certain Members of its Staff and Their Insurers.
• Court: Louisiana Supreme Court

Page 1190

506 So.2d 1190

Robert M. MALTBY, Individually and on Behalf of his Wife and Robin Posey Maltby v. Kohlmann GAUTHIER, M.D., Metairie General Hospital, Certain Members of its Staff and Their Insurers.

No. 86-C-1123.

Supreme Court of Louisiana.

May 18, 1987.

John Ferrara, New Orleans, for applicant.

Rene' A. Curry, Jr., J.T. Holmes, Ralph Kaskell, Jr., Nancy J. Marshall, Frederick R. Bott, Deutsch, Kerrigan & Stiles, New Orleans, Robert E. Birtel, Metairie, M. Arnaud Pilie, Pilie & Pilie, New Orleans, for respondent.

LEMMON, Justice.

The issue in this case is whether La.R.S. 9:5628 operates to bar an action for damages caused by medical malpractice based on acts or omissions by health care providers which occurred prior to the effective date of the statute, when the action was not filed within three years of the effective date. Inasmuch as there is no indication of any legislative intent, either expressed in the statute or implied from an analysis of the overall language and purpose of the statute, to affect claims based on acts or omissions occurring before the effective date of the statute, we conclude that La.R.S. 9:5628 does not bar the present action.

In November, 1972 and January, 1973, plaintiff Robin Maltby underwent surgery performed by defendant Dr. Kohlmann Gauthier at Metairie General Hospital. On February 11, 1980, the Maltbys filed this action alleging that malpractice by the doctor and/or members of the hospital staff during the 1972 and 1973 surgery caused damage to her reproductive organs. Plaintiffs further alleged that they did not obtain knowledge of the damage and the malpractice until February 12, 1979, when Mrs. Maltby's obstetrician informed her of the problem.

Defendants filed an exception of prescription. The trial court maintained the exception and dismissed the action. The court of appeal affirmed the dismissal, holding that La.R.S. 9:5628 barred an action filed more than three years after the effective date of the statute, even though the act or omission occurred before the effective date. 489 So.2d 396 (1986). We granted certiorari. 497 So.2d 1006 (1986).

Prior to the enactment of La.R.S. 9:5628, a tort victim (including a victim of medical malpractice) was entitled under certain circumstances to invoke the doctrine of contra non valentem agere nulla currit praescriptio. That doctrine operated to suspend the running of prescription during the period in which the cause of action was not known or reasonably knowable to the tort victim, even though the ignorance was not induced by the tortfeasor. Corsey v. State of Louisiana, Department of Corrections, 375 So.2d 1319 (La.1979).

The enactment of La.R.S. 9:5628, which became effective on September 12, 1975, placed an outside limit of three years on the applicability of the doctrine of contra non valentem for claims arising from acts or omissions which occurred after the effective date of the statute. ¹ Unless La.R.S. 9:5628 also precludes application of the doctrine of contra non valentem to some claims that arose before the enactment of the statute, the present suit is timely, since it was filed within one year of discovery of the cause of action.

The decision on rehearing in Crier v. Whitecloud, 496 So.2d 305 (La.1986) held that a claim, based on an act or omission occurring after the effective date of the La.R.S. 9:5628, was prescribed because it was filed more than three years from the date of the alleged act or omission, even though the cause of action was not known or reasonably knowable to the tort victim within the three-year period. ² On the other hand, the decision in Lott v. Haley, 370 So.2d 521 (La.1979) held that a suit, based on an act or omission occurring before the effective date of La.R.S. 9:5628, was not prescribed, although it was filed later than three years from the date of the alleged act or omission. The Lott decision reasoned that the plaintiff's cause of action had vested prior to the effective date of the statute and that the suit would have been timely under the law previously in effect.

The Lott case, unlike the present action, was filed within three years of the effective date of the statute. Citing this difference, defendants argue that Lott does not control the decision in this case and that a period of three years (the outside limit provided in the statute) was a reasonable time limitation for asserting claims vested at the time of the statute's enactment. On the other hand, plaintiffs argue that the statute should not be interpreted to affect any cause of action which had already become vested before the effective date of the statute. Defendants counter that the Lott decision and the decision in Reichenphader v. Allstate Insurance Co., 418 So.2d 648 (La.1982), recognized that a newly enacted statute which shortens an existing period of limitation does not violate the constitutional prohibition against affecting a vested right, provided the statute allows a reasonable time for those adversely affected to assert their vested rights. ³

Although the Legislature could have done so, the enactment of R.S. 9:5628 did not expressly provide either for a delay in the effectiveness of the statute, as in Reichenphader, or for a grace period for persons with vested claims to assert their rights. Either type of provision arguably would have indicated a legislative intent for the statute to apply to vested causes of action, and the remaining question for the court would have been whether the period provided was a reasonable one. ⁴ However the Legislature's failure to provide for either type of period can be construed as an indication that no effect on vested causes of action was intended. ⁵ When the Legislature, in enacting prescriptive statutes potentially affecting...