Walker v. Bossier Medical Center

• Court: Court of Appeal of Louisiana
• Citation: Walker v. Bossier Med. Ctr., 873 So.2d 841 (La. App. 2004)
• Decision Date: 12 May 2004
• Docket Number: No. 38,148-CA.,38,148-CA.
• Parties: Aiko WALKER, et al, Plaintiffs-Appellants v. BOSSIER MEDICAL CENTER, Defendant-Appellee.
• Writing for the Court: BROWN, C.J.

873 So.2d 841

Aiko WALKER, et al, Plaintiffs-Appellants v. BOSSIER MEDICAL CENTER, Defendant-Appellee.

No. 38,148-CA.

Court of Appeal of Louisiana, Second Circuit.

May 12, 2004.

John L. Hammons, Shreveport, Annis C. Flournoy, for Appellants.

Rene' J. Pfefferle, Baton Rouge, for Appellee, Bossier Medical Center.

Cynthia C. Anderson, Joseph S. Woodley, Shreveport, for Appellee, Lifeshare Blood Centers.

Department of Justice, Richard P. Ieyoub, Attorney General, Merrick J. Norman, Jr., John E. Baker, Assistant Attorney Generals, for Appellee, State of Louisiana.

Before BROWN, WILLIAMS, STEWART, DREW, and LOLLEY, JJ.

BROWN, C.J.

The issue in this case is whether the trial court erred in sustaining defendant's exception of prescription and dismissing plaintiffs' action. To make this decision, we are called upon to determine the constitutionality of the prescriptive period for medical malpractice actions set forth in La. R.S. 9:5628 as applied to a claim asserted by a plaintiff who suffers from a disease with a latency period which exceeds the three-year statutory limitation. We reverse and remand.

Facts

In January 1981, Aiko Walker was hospitalized for surgery at Bossier Medical Center Health Care Foundation ("Bossier Medical") which necessitated a blood transfusion. More than a decade later, in February 1992, Mrs. Walker was diagnosed with Hepatitis C, which was causally related to the 1981 transfusion of defective blood. Thereafter, on January 23, 1993, Mrs. Walker petitioned for a review of her claim by a medical review panel. After an adverse opinion was issued, plaintiffs, Aiko and Paul Walker, filed a petition in district court seeking damages from defendant, Bossier Medical, alleging strict liability. Plaintiffs amended their petition, naming as additional defendants Lifeshare Blood Center and the Louisiana Attorney General.

Bossier Medical filed a peremptory exception of prescription arguing that the three-year limitation period of La. R.S. 9:5628 barred the Walkers' claim.¹ Dr. David Dies testified that 99% of patients contracting Hepatitis C will not experience any symptoms for a period of approximately ten years from the date of receipt of contaminated blood.

Relying on Crier v. Whitecloud, 496 So.2d 305 (La.1986), the trial court found that the malpractice act provides a three-year prescriptive period which runs from the occurrence of the event for all malpractice actions, including those arising from alleged defects in blood. The court rendered judgment sustaining defendant's exception of prescription and dismissing plaintiffs' action. It is from this judgment that plaintiffs have appealed.

Discussion

La. R.S. 9:5628 provides:

(A) No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), 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 filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. (Emphasis added).

(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.

In Crier v. Whitecloud, 496 So.2d 305 (La.1986), the supreme court held that Mrs. Crier's rights to due process, open access to courts, and equal protection were not violated by the statute of limitations set forth in the medical malpractice act;² however, the court has been unwilling to extend this holding beyond the particular facts of Crier. See David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.07/02/03), 849 So.2d 38, 51. In David, the state's highest court left open the issue of the constitutionality of La. R.S. 9:5628 as it applies to an action filed by a claimant with a disease whose latency period is greater than three years. The court stated in David that the jurisprudence addressing the applicability of La. R.S. 9:5628 to a cause of action brought by a plaintiff suffering from a disease with a latency period in excess of three years has been in a state of flux and remanded the matter to the trial court to allow the plaintiff to amend his petition to include a constitutional challenge. Id.

In Whitnell v. Silverman, 95-0112 (La.12/06/96), 686 So.2d 23, the supreme court held that the three-year statute of limitations set forth in La. R.S. 9:5628 did not violate the Louisiana Constitution's equal protection provision as applied to the plaintiff, whose disease had a latency period of less than three years. In a footnote, the court observed that:

[t]his ruling by the Court does not address the constitutionality of La. R.S. 9:5628 as it applies to individuals with diseases that have latency periods in excess of three years. The court has basically declined to decide on this issue because it is not presently before it.

Whitnell, supra at 29, n. 13.

In his dissent in Whitnell, supra at 33, Justice Lemmon noted:

A case with a lengthy latency period might call for our reexamination of the Crier decision on the constitutionality of Section 5628. Section 5628 distinguishes not only between victims of medical malpractice and victims of other torts, but also between medical malpractice victims with injuries that manifest themselves within three years and victims with injuries that remain latent beyond three years. While such classifications are usually analyzed for equal protection purposes under a rational basis standard (the asserted rational basis being the perceived medical malpractice insurance crisis in the 1970s), there are also due process implications to the analysis.

There have been suggestions that only a small percentage of medical malpractice claimants are affected by a three year statute of repose. (Citation omitted). The converse, however, is equally true— only a small percentage of claims against health care providers are eliminated by such a statute. Depriving a few perhaps horribly injured innocent victims of their claims in order to relieve a few health care providers of late filing problems such as lost evidence, faded memories and unavailable witnesses appears to be fundamentally unfair, which is the hallmark of a due process violation. The medical malpractice victim, who has the ultimate burden of proof at trial, labors under the same difficulties caused by the late manifestation of an injury, which is not attributable to the victim.

Louisiana appellate courts which have been presented with attacks on the constitutionality of La. R.S. 9:5628 as it applies to diseases with latency periods in excess of three years have upheld the statute on equal protection grounds.³ The parties in the instant case have likewise focused the majority of their argument to this court on whether La. R.S. 9:5628 meets constitutional muster from an equal protection standpoint. Pretermitting an analysis of La. R.S. 9:5628 for compliance with constitutional equal protection requirements, our focus is on whether the statute, as applied to a claimant such as Mrs. Walker, whose condition made it impossible for her to know or for any physician to diagnose her disease within the statutory period of limitations, comports with constitutional due process requirements.

The fourteenth amendment to the United States Constitution and Art. I, § 2 of the Louisiana Constitution guarantee freedom from the deprivation of life, liberty or property without due process of law. Crier, supra. The hallmark of property is an individual entitlement grounded in state law which cannot be removed except for cause. Id. It is well settled that the right to file a damage suit in tort is a vested property right protected by the guarantees of due process. Walls v. American Optical Corp., 98-0455 (La.09/08/99), 740 So.2d 1262; Crier, supra; Lott v. Haley, 370 So.2d 521 (La. 1979). When a party has a right, either to sue for a cause of action or to defend himself against one, that right becomes a vested property right which is given due process protection. Bourgeois v. A. P. Green, Industries, Inc., 00-1528 (La.04/03/01), 783 So.2d 1251; Prejean v. Dixie Lloyds Insurance Co., 94-2979 (La.09/15/95), 660 So.2d 836.

The receipt of defective blood through a transfusion may lead to the development of a disease with a long latency period which cannot be diagnosed within the occurrence-oriented statute of limitations. These diseases can be devastating. A more egregious situation can hardly be conceived than for a claimant such as Mrs. Walker, who suffers from an incurable, debilitating disease which was contracted through no fault of her own, to be prevented from seeking of legal redress by the operation of the statutory limitation set forth in La. R.S. 9:5628, even though she could not have known of the disease. A claimant like Mrs. Walker is surely among the most blameless and seriously injured plaintiffs. To find La. R.S. 9:5628 constitutional as applied to plaintiffs who suffer from diseases with latency periods which prohibit their manifestation and discovery until well after the three-year, event-oriented period provided by Section 5628 would be to prevent a small number of the least blameworthy, yet most seriously injured claimants from having their day in court. To do so would divest such plaintiffs of their fundamental right to due process through the legal system while allowing defendant health care providers to avoid accountability and litigation.

Giving due deference to the function of the legislature, we limit our conclusion to hold that ...