Minor v. Casten

• Decision Date: 10 February 1988
• Docket Number: No. CA-8180,CA-8180
• Citation: 521 So.2d 465
• Parties: Loretta Wilson MINOR, Kathleen Minor Lurding, Sandra Minor and Jennifer Minor Carter v. Peter CASTEN, D.D.S. and St. Paul Fire & Marine Insurance Company. 521 So.2d 465
• Court: Court of Appeal of Louisiana — District of US

Page 465

521 So.2d 465

Loretta Wilson MINOR, Kathleen Minor Lurding, Sandra Minor and Jennifer Minor Carter v. Peter CASTEN, D.D.S. and St. Paul Fire & Marine Insurance Company.

No. CA-8180.

521 So.2d 465

Court of Appeal of Louisiana Fourth Circuit.

Feb. 10, 1988.

Concurring Opinion Feb. 23, 1988.

Jerome Friedman, Metairie, Adolph J. Levy, New Orleans, for plaintiffs.

Chester A. Fleming III, Boggs, Loehn & Rodrigue, New Orleans, for defendants.

Before BARRY, ARMSTRONG and PLOTKIN, JJ.

BARRY, Judge.

Plaintiffs appeal a judgment which maintains the defendants' exception of prescription. The issue is the applicable prescriptive period in a wrongful death and survival action based on dental malpractice.

On April 20, 1978 O.J. Minor went to Peter Casten, D.D.S., for dental treatment and saw him regularly until August 2, 1982. Mr. Minor claims Dr. Casten advised him to spray chloroseptic on a lesion on the roof of his mouth beginning in November, 1981. Dr. Casten never referred him to a specialist nor did he treat the lesion as a possible cancer.

On or about November 15, 1982 an oral surgeon biopsied Mr. Minor's mouth and diagnosed squamous cell carcinoma. On December 1 he was admitted to the hospital and underwent a right tongue, jaw and neck dissection. When discharged on December 14 the diagnosis was carcinoma of the right floor of the mouth, tongue and mandible with cervical metastasis. From December, 1982 through February 14, 1983 Mr. Minor underwent radiotherapy, but a biopsy on March 21, 1983 revealed continuing carcinoma. He underwent further surgery and died on September 19, 1983.

On September 19, 1984 Mrs. Minor and the children of his first marriage filed a wrongful death and survival action against Dr. Casten and his insurer, St. Paul Fire & Marine Insurance Company, alleging malpractice. The defendants' exception of prescription was maintained under La.R.S. 9:5628 based on the filing more than one year after Dr. Casten's alleged failure to diagnose the cancer. A motion for new trial was denied.

Plaintiffs argue the wrongful death and survival actions were timely under La.C.C. Arts. 2315 (pre-1986) and 3536 (pre-1984). Article 2315 provided at the time that the right to recover damages survived for one year from the death of the injured party. The liberative prescription of one year from the date of injury or damage (death) under La.C.C. Art. 3536 (pre-1984) applied to the wrongful death action. ¹

The defendants contend La.R.S. 9:5628, enacted in 1975 and amended in 1976 to add chiropractors, should apply:

A. No action for damages for injury or death against any physician, chiropractor, dentist, or 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; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must 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.

Our Circuits have disagreed on whether the wrongful death statute or R.S. 9:5628 should prevail. The First and Third Circuits have held that R.S. 9:5628, which does not provide for the two actions, must yield to the specific provisions of C.C. Art. 2315. Giroir v. South Louisiana Medical Center, 453 So.2d 949 (La.App. 1st Cir.1984), reversed in part on other grounds, 475 So.2d 1040 (La.1985) (involving both actions); Lambert v. Michel, 364 So.2d 248 (La.App. 3rd Cir.1978), writ denied 366 So.2d 917 (La.1979) (involving only a wrongful death action).

In Gover v. Bridges, 486 So.2d 1117 (La.App. 2d Cir.1986), affm'd 497 So.2d 1364 (La.1986), the Second Circuit disagreed with Giroir and Lambert and stated that R.S. 9:5628 applies to medical malpractice. At issue was a suit filed more than three years after Mrs. Gover's death. Gover, a wrongful death action, held that suit must be brought within one year from the date of the alleged act, omission, or neglect, or within one year of discovery of the act, omission or neglect, but within the three year maximum. The court concluded that "the language of the statute is broad enough to include not only actions for personal injury due to malpractice, but also survival and wrongful death claims...." 486 So.2d at 1119.

Gover is cited in James v. Phoenix General Hospital, Inc., 154 Ariz. 594, 744 P.2d 695, fn. 12 (1987), which discusses at length the two trends nationwide. Louisiana is included as a jurisdiction which interprets its medical malpractice statute (with legislative intent to impose constraints) as procedurally controlling wrongful death actions.

A negligence action, Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 721 (La.1986), provides further support: "Until 1975, actions for damages for negligent injury or death for medical malpractice were governed by the same liberative prescription articles as applied in other torts." The Supreme Court noted the 1975 enactment and concluded that R.S. 9:5628 "now governs the time for filing medical malpractice actions." 486 So.2d at 722. See also Brown v. Department of Health and Human Resources, 498 So.2d 785 (La.App. 4th Cir.1986), writs denied 500 So.2d 430 (La.1987).

The applicable statute for this lawsuit is R.S. 9:5628 which has passed constitutional muster. Crier v. Whitecloud, 496 So.2d 305 (La.1986). See Comment, Recent Medical Malpractice Legislation --First Checkup, 50 TUL.L.REV. 655, 672 (1976). The focus of Supreme Court jurisprudence has been the maximum prescriptive period. In Crier, supra, the court upheld the three year statutory period without regard to the time of discovery.

This court denied writs in a case where the trial court applied R.S. 9:5628 and denied an exception of prescription when the mother of a baby who died hours after birth filed suit within one year of the discovery of the "act, omission or neglect," but more than one year after the baby's death. Brown, supra.

Prescription runs against all persons unless an exception is established by legislation. La.C.C. Art. 3467 (pre-1982 Art. 3521). However, our jurisprudence recognizes as a limited exception the doctrine of contra non valentem agere nulla currit praescriptio, i.e., prescription does not run against a party who is unable to bring an action. Hebert, 486 So.2d at 721, n. 7; Cheramie v. Terral, 516 So.2d 1329 (La.App. 4th Cir.1987).

There are four situations where contra non valentem might apply to prevent prescription: (1) where there was a legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where some condition coupled with the proceedings prevented the creditor from suing or acting; (3) where the debtor has done an act to prevent the creditor from using his cause of action; (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though not induced by the defendant. Gover, 497 So.2d at 1368; Corsey v. State Department of Corrections, 375 So.2d 1319 (La.1979). See Comment, The Scope of the Maxim Contra Non Valentem in Louisiana, 12 TUL.L.REV. 244 (1938). Recently the doctrine was upheld as still a viable exception to the running of prescription. Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034 (La.1987).

In Chaney v. State Department of Health and Human Resources, 432 So.2d 256 (La.1983), the Supreme Court held that R.S. 9:5628 legislatively overruled the fourth exception as to a medical malpractice suit filed more than three years after the act, omission or neglect. See also Hebert v. Doctors Memorial Hospital, supra. The court made no finding as to what effect the statute has on the other three exceptions. Gover, 497 So.2d at 1368.

Gover considered claims relating to the third situation of the doctrine, but did not find the necessary fraud to trigger its use where the plaintiffs filed suit nine years after their mother's death. This Court has utilized the doctrine's third situation (involving fraud) to find prescription had not run when suit was filed more than three years after the alleged malpractice. Harvey v. Davis, 432 So.2d 1203 (La.App. 4th Cir.1983).

These plaintiffs sued within the three year maximum. They seek to invoke contra non valentem because their suit was filed more than one year from the alleged neglect or its discovery. Relevant to these facts are the first and second situations which (along with the third) are viable and permit an equitable review of the circumstances of each case to determine if prescription will be tolled. Casenote, Gover v. Bridges: Prescription Applicability of Contra Non Valentem Doctrine To Medical Malpractice Actions, 61 TUL.L.REV. 1541 (1987).

These plaintiffs could not assert a cause of action against Dr. Casten until Mr. Minor's death on September 19, 1983. Therefore, the date of discovery of the neglect, act or omission is not relevant. Under contra non valentem the one year prescription of R.S. 9:5628 started on September 19, 1983 and their petition was timely on September 19, 1984.

The judgment is reversed and the case remanded for further proceedings.

REVERSED; REMANDED.

PLOTKIN, Judge, concurs with reasons.

I concur with the panel's result in this case, but disagree with its legal analysis. I particularly disagree with the conclusion that the Louisiana Supreme Court's decision in Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986), controls this case and that contra non valentum applies to this adjudication.

The facts in this case are not in dispute. The decedent, O.J. Minor,...