Taylor v. Giddens

• Decision Date: 24 May 1993
• Docket Number: No. 92-C-3054,92-C-3054
• Citation: 618 So.2d 834
• Parties: Frank H. TAYLOR, et al. v. Dr. William R. GIDDENS and Dr. Jack E. Carlisle.
• Court: Louisiana Supreme Court

Page 834

618 So.2d 834

Frank H. TAYLOR, et al. v. Dr. William R. GIDDENS and Dr. Jack E. Carlisle.

No. 92-C-3054.

Supreme Court of Louisiana.

May 24, 1993.

Garic Kenneth Barranger, Covington, Edmund Mazyck Thomas, Shreveport, for applicant.

Robert G. Pugh, Jr., Pugh, Pugh & Pugh, Samuel W. Caverlee, Cynthia C. Anderson, Cook, Yancey, King & Galloway, Shreveport, for respondent.

ORTIQUE, Justice ¹.

We granted writ to determine whether survival actions and/or wrongful death actions are governed by the prescriptive period set forth in LSA-R.S. 9:5628. ² Plaintiffs, the widower and children of an alleged medical malpractice victim, filed their petition for the appointment of a medical review panel approximately three and one-half years after the occurrence of the tortious act, but within one year of the victim's death. The defendants, the internist and radiologist who failed to diagnose the victim's esophageal cancer, filed exceptions of prescription urging the survival and wrongful death actions had prescribed under both the one and the three year time limitations of LSA-R.S. 9:5628. Their exceptions were sustained by the trial court and affirmed by the court of appeal. After concluding that LSA-R.S. 9:5628 provides the prescriptive period for survival actions but does not provide the prescriptive period for wrongful death actions, we affirm in part, reverse in part and remand. The commencement and running of the prescriptive period for the wrongful death action is controlled by the one year liberative period applicable to delictual actions, LSA-C.C. art. 3492, and the action is available to the certain beneficiaries named in LSA-C.C. art. 2315.2 (formerly named in LSA-C.C. art. 2315).

I.

Dr. William R. Giddens, an internist at The Diagnostic Clinic in Shreveport, was initially visited by Connolly Logan Taylor ("Mrs. Taylor") in June, 1982. She complained of dysphagia, a difficulty in swallowing solids. Dr. Giddens referred her to the radiologists at Schumpert Memorial Medical Center ("Schumpert") for upper GI x-rays. He allegedly gave her a note to give to the radiologist with "dysphagia, upper GI" written on it and instructed her to inform the radiologist about her dysphagia. While scheduling her x-ray examination, Dr. Giddens attempted to contact the radiologist who would have the x-ray assignment. Even though he did not speak with the radiologist, he expected Mrs. Taylor's esophagus to be x-rayed.

Dr. Jack E. Carlisle, a radiologist at Schumpert, x-rayed Mrs. Taylor. He allegedly did not receive Dr. Giddens' note and was not alerted by Mrs. Taylor to the dysphagia when he took her history. ³ The GI series which Dr. Carlisle performed included a fluoroscopic examination of the esophagus, stomach and duodenum, with films of the gastroesophageal junction. ⁴ He did not x-ray her esophagus. As per routine practice, Dr. Giddens received only the radiologist's report which indicated the esophagus was normal, although the x-rays were available for his review at Schumpert. When he telephoned Dr. Carlisle to discuss the x-ray examination, it was Dr. Carlisle's day off. Consequently, without discussing the matter with the radiologist, Dr. Giddens informed Mrs. Taylor that her esophagus was normal and diagnosed her as having a nervous esophagus. He informed her that an esophagoscopy would be necessary if her symptoms continued.

After the x-rays were taken, Mrs. Taylor told her husband, Frank Taylor ("Mr. Taylor"), that the x-rays were "botched-up." The wife of the mayor of Shreveport had arrived for tests at Schumpert and was given VIP treatment, delaying Mrs. Taylor's appointment. She also told her husband Dr. Giddens' diagnosis was ridiculous. He said she did not believe the diagnosis.

Mrs. Taylor's symptoms abated and the family took a month vacation to the Bahamas. Upon their return to Shreveport, Mrs. Taylor's dysphagia worsened. While perusing a medical book at a bookstore, she diagnosed herself as having esophageal cancer. Rather than return to Dr. Giddens, she went to a gastroenterologist, Dr. Thomas V. Allen. Due to the persistence of the dysphagia and her previous negative x-rays, he performed two diagnostic tests, an esophageal motility, which showed esophageal spasms, and an esophagoscopy. The esophagoscopy showed a mass in the lining of the esophagus with a narrowing in the opening of the esophagus. Dr. Allen took two biopsies, the washing showed a class IV pap smear and the pinch showed a squamous type malignant tumor. ⁵

Mr. Taylor, a businessman and a Tulane Law School graduate, had telephoned Dr. Giddens on September 23, 1982, and informed him that his wife had been reading medical books and, due to her research on the subject and the persistence of her symptoms, suspected that she might have cancer of the esophagus. Dr. Giddens indicated he would contact Drs. Wilder, Allen or McGinty to schedule an esophagoscopy. Consequently, Dr. Giddens was surprised to discover on September 27, 1982, that Mrs. Taylor had been esophagoscoped by Dr. Allen and the biopsy was positive. Dr. Giddens testified that,

[he] thought [he] was the doctor on the case, and [he] wasn't the doctor on the case because they had Dr. Allen [perform the esophagoscopy] without [his] knowledge. Nevertheless, [he] called to talk and speak with Mr. Taylor, her husband, and explain that [he] regretted to hear the news and [he] couldn't explain the situation, but that [he] was available if [he] could be of any help and Mr. Taylor told [him] at that time [his] negligence had cost his wife her life, and so hearing that, [he] assumed that he was dismissed from the case and could only stand by and wait. ⁶

Mr. Taylor admits that he knew in September 1982 that Dr. Giddens reported his wife's esophagus was normal and Dr. Allen diagnosed cancer of the esophagus. He testified that her primary treating physician was Dr. Frazier at St. Luke's in Houston, Texas, and her nutritionist was Dr. Dudrick, also at St. Luke's. ⁷ He also admits he went to a medical malpractice attorney on May 11, 1984, and "--by the time I went to see him, I knew there had been a foul-up." ⁸ The attorney urged him to file suit prior to Mrs. Taylor's death but he said he "lost interest" in the suit and got caught up in keeping Mrs. Taylor alive. He did not return to the attorney until after his wife's death.

Mrs. Taylor died on January 9, 1985. In February, 1985, Mr. Taylor questioned the internist and radiologist for the first time concerning the basis for their failure to diagnose the cancer. He learned that Mrs. Taylor's esophagus had been examined, but it had not been x-rayed. Thereafter, Mr. Taylor and Mrs. Taylor's children filed a petition for the appointment of a medical review panel with the Commissioner of Insurance on January 8, 1986, pursuant to the Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq, naming the internist and radiologists as defendants.

The defendants filed peremptory exceptions of prescription against the petition in district court, claiming the actions had prescribed under both the one and the three year time limitations set forth in LSA-R.S. 9:5628. The plaintiffs amended their petition, but the trial court sustained the exception. The plaintiffs filed a second amending petition alleging the defendants withheld information concerning the basis for the failure to diagnose. Defendants renewed their exceptions and they were sustained by the trial court. The appellate court affirmed, 607 So.2d 878 (La.App.2d Cir.1992), holding that the language of LSA-R.S. 9:5628 is unambiguous and provides no exception for wrongful death and/or survival actions brought beyond the statute's one year and three year prescriptive periods, and that the doctrine of contra non valentem is not factually supported in this case and, nevertheless, could not extend the malpractice action beyond the three year prescriptive period limit. We granted certiorari, 612 So.2d 43 (La.1993), to determine whether the provisions of LSA-R.S. 9:5628 set forth the prescriptive period for survival and/or wrongful death actions having a genesis in medical malpractice.

II.

The appellate courts of this state are in conflict as to whether LSA-R.S. 9:5628 applies to actions for survival and/or wrongful death. The Second and Fourth Circuits hold that the broad language of LSA-R.S. 9:5628 applies to those actions, while the First and Third Circuits hold the statute is a general law that does not specifically provide for the two actions and therefore must yield to the specific provisions of LSA-C.C. art. 2315, now arts. 2315.1 (survival) and 2315.2 (wrongful death). See Dunn v. North Community Hosp., 545 So.2d 1267 (La.App. 2d Cir.1989), writ den., 550 So.2d 633 (La.1989) [both actions]; Minor v. Casten, 521 So.2d 465 (La.App. 4th Cir.1988) [both actions]; Gover v. Bridges, 486 So.2d 1117 (La.App. 2d Cir.1986), aff'd on other grounds, 497 So.2d 1364 (La.1986) [wrongful death only]; Giroir v. South Louisiana Medical Center, 453 So.2d 949 (La.App. 1st Cir.1984), aff'd in part, rev'd in part, on other grounds, 475 So.2d 1040 (La.1985) [both actions]; Lambert v. Michel, 364 So.2d 248 (La.App. 3d Cir.1978), writ den. ("the result is correct"), 366 So.2d 917 (La.1979) [wrongful death action only; dicta addressed survival actions; held: providing that the victim's action had not prescribed by the date of death, the two actions exist for one year from date of death]. The Fifth Circuit has not entertained the issue.

The polemic statute provides in pertinent part as follows:

Sec. 5628. Actions for medical malpractice

A. No action for damages for injury or death against any physician, ..., 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; however, even as to claims...