Taylor v. Giddens

• Citation: 607 So.2d 878
• Decision Date: 28 October 1992
• Docket Number: No. 24054-CA,24054-CA
• Parties: Frank H. TAYLOR, et al., Plaintiffs-Appellants, v. Dr. William R. GIDDENS, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 878

607 So.2d 878

Frank H. TAYLOR, et al., Plaintiffs-Appellants, v. Dr. William R. GIDDENS, et al., Defendants-Appellees.

No. 24054-CA.

Court of Appeal of Louisiana Second Circuit.

Oct. 28, 1992.

Writ Granted Jan. 29, 1993.

Garic Kenneth Barranger, Covington, Edmond Thomas, Shreveport, for plaintiffs-appellants.

Pugh, Pugh & Pugh by Robert G. Pugh, Jr., Shreveport, for defendant-appellee Dr. Carlisle.

Cook, Yancey, King & Galloway by Samuel W. Caverlee, Cynthia C. Anderson, Shreveport, for defendant-appellee Dr. Giddens.

Before NORRIS, HIGHTOWER and STEWART, JJ.

STEWART, Judge.

Connolly Logan Taylor died of cancer on January 9, 1985. On January 8, 1986, her husband, Frank H. Taylor, and children filed a claim with the commissioner of insurance against Dr. William R. Giddens and Dr. J.E. Carlisle under the Medical Malpractice Act (LSA-R.S. 40:1299.41, et seq.). Plaintiffs alleged that defendants negligently failed to diagnose Mrs. Taylor's esophageal cancer when she was tested in June 1982. The trial court sustained defendants' exceptions of prescription. Plaintiffs appeal, alleging that defendants' negligence was not discovered until after Mrs. Taylor's death and that the running of prescription did not commence until her death. We affirm.

FACTS

Mrs. Taylor consulted Dr. Giddens in June 1982, complaining of difficulty in swallowing (dysphagia). Giddens referred her to Dr. Carlisle, a radiologist, for a GI series of X-ray tests. She saw Dr. Carlisle for the GI series on June 29, 1982. The GI-series includes a fluoroscopic examination of the esophagus, stomach and duodenum, with films of the gastroesophageal junction. Dr. Carlisle's report stated that the esophagus was normal, and Dr. Giddens informed Mrs. Taylor of this finding.

In September 1982, Mrs. Taylor went to see gastroenterologist Dr. Tom Allen. Allen performed tests and, a few days later, diagnosed Mrs. Taylor as having cancer of the esophagus. Soon thereafter, Mr. Taylor called Dr. Giddens and told him about the cancer and also told Dr. Giddens that this failure to diagnose probably killed Mrs. Taylor.

Mrs. Taylor underwent an extensive operation on her esophagus, after which she appeared to recover. But, by May 1984, the Taylors learned that the cancer had metastasized.

Mr. Taylor contacted attorney Troy Bain and, on May 11, 1984 filled out a "Medical Malpractice Interview Form" for Mr. Bain. Bain discussed with Mr. Taylor the prescription of the malpractice claim. Prior to Mrs. Taylor's death on January 9, 1985, Mr. Taylor did not contact Mr. Bain again.

In January or February 1985, Mr. Taylor talked with Dr. Giddens and Dr. Carlisle. Giddens told him that Carlisle did not X-ray the upper portion of Mrs. Taylor's anatomy which Giddens intended at the time the GI series was requested. Carlisle told him that he performed a lower GI series and that Giddens did not request the upper GI series, which would have been appropriate to diagnose the cause of her dysphagia. In essence, a breakdown in communication--because the term "GI Series" had a different meaning for each doctor--led to the failure to diagnose Mrs. Taylor's cancer in June 1982.

On January 8, 1986, Mr. Taylor filed a petition with the Commissioner of Insurance for appointment of a medical review panel. Pursuant to LSA-R.S. 40:1299.47(B)(2)(a) and (b), Drs. Giddens and Carlisle each filed, in the First Judicial District Court, an exception of prescription based on both one and three-year prescription. Several depositions were filed, as well as Mr. Taylor's affidavit. The trial court found that prescription had run, but allowed Taylor to amend his petition.

Mr. Taylor filed a third supplemental and amended petition alleging that Drs. Giddens and Carlisle withheld information of an improper diagnosis. Each doctor again filed an exception of prescription, noting that there had been no diagnosis of cancer of the esophagus which was hidden from the patient or parties. The trial court sustained the renewed exceptions of prescription. Plaintiffs, Mrs. Taylor's husband and children, appeal.

DISCUSSION

Appellants contend that, by virtue of the doctrine of contra non valentem agere nulla currit praescriptio, Mrs. Taylor's death was the moment at which prescription commenced running because they were prevented from instituting suit (1) for legal cause, as well as (2) due to conditions related to the proceedings. According to plaintiffs, the legal cause is the fact that courts could not recognize the action because it did not exist for these plaintiffs until the death of their wife or mother; the condition connected with the proceedings is that suit prior to her death by plaintiffs would have been premature.

Appellants further assert that the R.S. 9:5628 three year prescription applies only to those causes of action which the decedent, herself, could have brought. They argue that, because the three year prescription had not run at the time of Mrs. Taylor's death, they had one year after her death to begin this action. In Lambert v. Michel, 364 So.2d 248 (La.App. 3d Cir.1978), writ denied, 366 So.2d 917 (La.1979), cited as appellants' support for this argument, the court stated that because R.S. 9:5628 is silent on (1) the survival action and (2) the wrongful death action, the statute must be considered a general statute which conflicts with, and must therefore defer to, the specific provisions of C.C. art. 2315. However, this court has declined to follow this reasoning in Lambert, supra. See Gover v. Bridges, 486 So.2d 1117 (La.App.2d Cir.1986), affirmed, 497 So.2d 1364; Dunn v. North Community Hospital, 545 So.2d 1267, 1269 (La.App. 2d Cir.), writ denied, 550 So.2d 633 (La.1989).

Actions for medical malpractice prescribe one year from the date of the alleged act of malpractice or within one year from the date of the discovery of the alleged act. However, all actions must be brought within three years from the date of the alleged act or they are forever barred. LSA-R.S. 9:5628. The language of the statute is unambiguous and provides no exception for either wrongful death or survival actions. Appellants' argument that this prescription applies only to actions which Mrs. Taylor could have brought is without merit.

LSA-R.S. 9:5628, rather than LSA-C.C. art. 2315, governs survival and wrongful death claims arising from alleged malpractice, however we recognized the doctrine of contra non valentem in Dunn, supra, 545 So.2d at 1270, as follows:

First, all such actions must be brought within the three year outside limit of 9:5628. The sole "exception" to this might be where a doctor intentionally and successfully concealed his malpractice until it was too late for the plaintiff to bring suit. However, rather than applying contra non valentem, such a case could be resolved by holding that the doctor's actions estopped him from raising the exception of prescription. Aside from this "exception," even the doctrine of contra non valentem could not save a claim that was not filed within the three year outside limit.

Second, as to wrongful death actions brought within the three year period, such claims should be brought either within one year of the act or its discovery, or within one year of the death of the patient, whichever is later. The one year period running either from the date of the alleged act or discovery of the alleged act is imposed by the second of the four situations in which contra non valentem applies. While La.C.C. Article 2315.2 does not control instead of 9:5628, under the second arm of the contra non valentem doctrine the result will be in harmony with the result which would obtain from application of Article 2315.2. Regardless, suit must be brought within the three year outside period.

The one year prescriptive period commences running on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Constructive knowledge sufficient to commence the running of prescription requires more than a mere apprehension that something might be wrong. Prescription does not run against one who is ignorant of the facts upon which his cause of action is based as long as such ignorance...