Phelps v. Donaldson
| Decision Date | 18 February 1963 |
| Docket Number | No. 46321,46321 |
| Citation | 243 La. 1118,150 So.2d 35 |
| Parties | Mrs. Frances PHELPS, Individually and as Administratrix of the Estate of the Minor, Meade Phelps, v. Dr. K. V. DONALDSON. |
| Court | Louisiana Supreme Court |
Watson, Williams & Brittain, Natchitoches, for plaintiff-applicant.
Stafford & Pitts, Alexandria, for defendant-respondent.
The plaintiff, Mrs. Phelps, initiated this suit individually and on behalf of her minor daughter, Meade Phelps, against the defendant orthodontist, Dr. Donaldson, for damages 1 in tort for alleged malpractice for injuries sustained as a result of his negligence and failure to straighten properly her daughter's teeth; and alternatively, for damages for the breach of a contract warranting particular results. The case is now before us on a writ of certiorari granted upon the plaintiff's application to review the judgment of the Court of Appeal, Third Circuit, affirming the judgment of the lower court dismissing the plaintiff's suit. See La.App., 142 So.2d 585.
The district court maintained the defendant's plea of prescription on the main demand, having found as a fact the suit was instituted more than a year after the discovery of the defects complained of; and as to the alternative demand, found as a fact the plaintiff had failed to prove the alleged contract, therefore dismissed her suit.
The Court of Appeal was of the opinion that malpractice actions are manifestly tortious in nature and are subject to the prescription of one year; it concurred in the trial court's finding that the suit had not been timely filed, therefore affirmed this judgment without giving consideration to the alternative demand and dismissed the suit.
The record reveals that the plaintiff engaged the defendant in July, 1955, to perform orthodontic treatments on Meade, who was then twelve years of age and who had previously lost one upper left six-year molar and two lower six-year molars. In an effort to fill the resulting spaces, the other teenth had moved or 'drifted' and dipped. In the upper right arch, in addition to the drifting, a bicuspid tooth had erupted toward the palate.
The plaintiff maintains that she engaged the services of the defendant to pull the erupted bicuspid into line and to straighten the other teeth and that she had been assured by the defendant that he would do so. The treatments continued until July, 1957; the plaintiff alleged in her petition that she first noticed the work had been improperly done in November, 1957, and in particular, complained of the defendant's having moved the teeth so as to cause a central incisor to be situated directly in the front of the child's mouth, resulting in disfigurement.
Suit was filed in October, 1958, which would have been timely had the date of the first observation of the allegedly defective work as set forth in the petition been correct; but both the trial court and the Court of Appeal found as a fact the plaintiff had been dissatisfied with the defendant's workmanship...
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