Sciacca v. Polizzi

• Decision Date: 08 September 1981
• Docket Number: No. 81-C-0533,81-C-0533
• Citation: 403 So.2d 728
• Parties: Helen SCIACCA v. Louis POLIZZI, M.D. and Julius Schmid Company, a/k/a Schmid Laboratories, Inc.
• Court: Louisiana Supreme Court

Page 728

403 So.2d 728

Helen SCIACCA v. Louis POLIZZI, M.D. and Julius Schmid Company, a/k/a Schmid Laboratories, Inc.

No. 81-C-0533.

Supreme Court of Louisiana.

Sept. 8, 1981.

Carey J. Guglielmo and Richard Creed, Jr., of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-applicant.

Mark Alan Jolissaint, Slidell, for plaintiff-respondent.

Jerry L. Saporito, and B. Frank Davis of Bernard, Cassisa, Babst & Saporito, Metairie, for Julius Schmid Co. a/k/a Schmid Laboratories, Inc.

BLANCHE, Justice.

Plaintiff, Helen Sciacca, filed suit on May 13, 1976 against Louis Polizzi, a physician, and Julius Schmid Co. a/k/a Schmid Laboratories, Inc. She styled her suit as a "Petition for Damages Due to Breach of Contract." Plaintiff alleged therein that she suffered numerous injuries and damages as a result of Dr. Polizzi's improper insertion of a "Safety Coil" intrauterine device (IUD) into her uterus and/or because of a defect or defects in the "Safety Coil" IUD manufactured by Schmid Laboratories. Both defendants filed exceptions of prescription. The trial court sustained the exceptions and dismissed plaintiff's suit. The court of appeal affirmed the ruling on Schmid Laboratories' exception, but reversed the trial court ruling on Dr. Polizzi's exception, overruling that exception and remanding the case to the trial court for further proceedings. This Court granted Dr. Polizzi's application for a writ of certiorari to review the court of appeal decision on his exception.

FACTS

According to Helen Sciacca's petition, on or about April 18, 1972 she entered into a contract with Dr. Polizzi under the terms of which Dr. Polizzi was to perform medical services and supply to her a means of preventing conception. In the course of the performance of this contract, the doctor recommended a "Safety Coil" a/k/a "Saf-T-Coil" intrauterine device as the method of birth control for plaintiff. Plaintiff alleges that Dr. Polizzi warranted to her that this IUD was harmless and that insertion of the device in the uterus was safe.

On April 18, 1972 at Slidell Memorial Hospital, Dr. Polizzi inserted the IUD in Ms. Sciacca's uterus. Plaintiff began to experience severe abdominal pains in January of 1974 and on February 9, 1974 doctors surgically removed the IUD. According to Ms. Sciacca, the IUD had punctured her uterus and otherwise caused damage to her reproductive organs necessitating removal of both fallopian tubes and one ovary in order to save her life. As a result, plaintiff alleges she is permanently sterile.

Ms. Sciacca also alleges severe post-operative complications. Approximately six months after the February 9 surgery, she underwent emergency surgery to remedy massive infection and blockage in the small intestine and other areas of her abdomen due to a union of the small intestine and uterus in the course of the healing of the puncture wounds from the IUD. She was subsequently hospitalized after this surgery because of severe abdominal bleeding and swelling and another infection and small intestine obstruction. Plaintiff also developed a "serum sickness" or allergic reaction to some of the medication prescribed to her in the course of her treatment and her neck became swollen and her body covered with hives. Plaintiff alleges that this "serum sickness" is permanent.

At issue in this case is the prescriptive period applicable to a suit by a patient against her physician. Plaintiff contends that the allegations of her petition set out a suit in contract (for damages for the breach of that contract) and that the ten year liberative prescriptive period for personal actions provided by Civil Code art. 3544 governs her suit. Defendant takes the position that plaintiff's action is in tort and that the controlling prescriptive period for that action is the one year period applicable to quasi-offenses provided by Civil Code art. 3536.

Retroactivity of R.S. 9:5628

In 1975 the Louisiana Legislature promulgated a law specifically limiting the time period in which an action for damages for injury or death may be filed against a physician. That statute, R.S. 9:5628, provides as follows:

"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." Added by Acts 1975, No. 808, § 1. Amended by Acts 1976, No. 214, § 1.

This Court determined in Lott v. Haley, 370 So.2d 521 (La. 1979) that this prescriptive statute, which became effective on September 12, 1975, would not be applied retroactively to the facts of that case. We recognized that, although statutes of limitation are remedial in nature and are generally applied retroactively, a retroactive application of this statute would operate to eliminate the plaintiff's vested right to sue on his preexisting January 21, 1972 cause of action since the statute did not provide a reasonable period following its enactment for the assertion of a claim within its purview. The plaintiff's action would have prescribed had the statute been applied since his suit was filed more than three years from the date of the alleged act, omission or neglect, but would not have prescribed under preexisting law.

In the instant case we find that plaintiff discovered or should have discovered the existence of facts that would entitle her to bring suit against defendant by at least February 9, 1974 when the IUD inserted by defendant was surgically removed and it was determined that there was damage to her reproductive organs. For the reasons discussed below we find that Ms. Sciacca's suit had prescribed prior to the May 13, 1976 filing date either in accordance with our interpretation of the law as it existed prior to the enactment of R.S. 9:5628 or by application of that statute. Therefore, it is unnecessary to rule on the retroactive application of the statute in this case. Prescriptive Period Applicable to Medical Malpractice Suits

The controlling prescriptive period in medical malpractice suits that are not governed by R.S. 9:5628 is determined by the nature of the plaintiff's cause of action. There is a conflict among the states as to the applicable prescriptive period, 61 Am.Jur.2d, Physicians, Surgeons, etc., § 316, p. 466, and among the appellate courts within this jurisdiction (see discussion below). The conflict results from differing opinions as to whether a suit by a patient against his physician for alleged wrongdoing is a suit in tort, which would be governed in our jurisdiction by the one year prescriptive period of Civil Code art. 3536, or a suit in contract, in which case the ten year prescriptive period of Civil Code art. 3544 would apply.

The issue was first directly addressed in the context of Louisiana law in Kozan v. Comstock, 270 F.2d 839 (5th Cir. 1959). The Fifth Circuit applied Louisiana law and concluded that absent a special warrant or contract a malpractice suit against a physician is a tort action that is subject to the tort prescriptive period. Judge Wisdom set out the following rationale for this conclusion:

"It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even in these instances in which no contract is present the physician still owes a duty to the patient. The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view. ¹⁷

"We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant that a particular result will be obtained. In such instances an action in contract may lie against a physician. ¹⁸ However, in the absence a special warranty or contract, a malpractice suit against a of physician is an action in tort and is subject to the limitation period for tort actions."

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270 F.2d at 844-845.

This Court basically took the same approach in Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963...