White v. West Carroll Hosp., Inc.

Decision Date30 November 1992
Docket NumberNo. 92-C-1330,92-C-1330
PartiesSuzette WHITE et vir. v. WEST CARROLL HOSPITAL, INC. and Louisiana Hospital Association Insurance Trust Fund.
CourtLouisiana Supreme Court

John E. Morton, Fuhrer, Flournoy, Hunter & Morton, Alexandria, for applicant.

Peter T. Dazzio, Watson, Blanche, Wilson & Posner, Baton Rouge, Donald J. Anzelmo Crawford & Anzelmo, Monroe, Melinda M. Tucker, David A. Dalia, Dale C. Wilks, New Orleans, for respondents.

Lawrence S. Kullman, New Orleans, for New Orleans City, and New Orleans Museum of Art, amicus curiae.

Jack A. Grant, Gretna, for Jefferson Parish School Bd., and Lafourche Parish School Bd., amicus curiae.

Kenneth F. Sills, Baton Rouge, for East Baton Rouge Parish School Bd., St. Charles Parish School Bd., Evangeline Parish School Bd., Natchitoches Parish School, amicus curiae.

William B. Baggett, Lake Charles, for Acadia Parish School Bd., Allen Parish School, Calcasieu Parish School Bd., Cameron Parish School Bd., Iberia Parish School Bd., Jefferson Davis Parish School Bd., Lafayette Parish School Bd., LaSalle Parish School Bd., St. Martin Parish School Bd., Vermillion Parish School Bd., amicus curiae.

Frederick H. Sutherland, Shreveport, for Caddo Parish School Bldg., Webster Parish School Bd., amicus curiae.

Thomas A. Raymer, New Orleans, for Roman Catholic Church, and Catholic Schools of New Orleans, amicus curiae.

Phillip A. Wittmann, Barry W. Ashe, James C. Gulotta, Jr., Douglas D. Dodd, Paul J. Masinter, New Orleans, for W.R. Grace & Co., amicus curiae.

MARCUS, Justice.

Mrs. Suzette White was hospitalized at West Carroll Hospital in May of 1987 by her treating physician, Dr. Joan Brunson, for medical problems associated with her heart condition. While hospitalized, she suffered an allergic reaction to certain types of hospital tape used by hospital employees.

On January 4, 1988, Mrs. Suzette White and her husband filed suit in the Fifth Judicial District Court (No. 19,599) asserting medical malpractice claims against West Carroll Hospital, Inc. Morris Management, Inc. was added as a party defendant on May 11, 1988. The deposition of Dr. Brunson was taken on May 4, 1988, and that of Suzette White on November 21, 1988. An exception of prematurity was filed by the hospital and heard by the trial judge. On August 31, 1988, the trial judge issued "Reasons for Judgment" indicating that the suit was premature and should be dismissed. The record does not reveal that a judgment was signed by the trial judge. Subsequently, a medical review panel was convened. On March 15, 1989, it rendered an opinion in favor of the hospital.

On April 24, 1989, Mrs. Suzette White and her husband brought the present suit (No. 20,060) against West Carroll Parish Hospital, Inc., West Carroll Hospital, Inc. and Morris Management, Inc. (hospitals) in the same judicial district court alleging the same medical malpractice claims as in the prior suit. Defendants answered, denying the allegations of the petition, and filed a third party demand against Dr. Brunson, alleging that in the event defendants were liable to Mrs. White, then their fault was predicated on the actions or inactions of Dr. Brunson. On November 28, 1989, plaintiffs filed a supplemental and amending petition adding Dr. Brunson and her insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), alleging solidary liability with the hospitals.

Dr. Brunson and LAMMICO filed exceptions of prematurity and prescription to plaintiffs' amending petition. Relying upon La.R.S. 9:5628, 1 the trial judge found that on the face of the petition, plaintiffs' action against Dr. Brunson and LAMMICO had prescribed since suit was not filed against them until almost two years after the alleged acts of malpractice occurred. The trial judge further found that prescription had not been suspended pursuant to La.R.S. 40:1299.41 G in that plaintiffs failed to act against Dr. Brunson and LAMMICO within the ninety day suspension period which commences when the review panel is convened. 2 The trial judge found that the filing of the present suit against the hospitals on April 24, 1989 did not serve to interrupt prescription as to Dr. Brunson and LAMMICO, alleged solidary obligors with the hospitals, since the claims were already prescribed against them when this suit was filed. Last, the trial judge rejected plaintiffs' claim based on the doctrine of contra non valentem, finding that evidence supported the conclusion that Mrs. White had actual and at least constructive knowledge sufficient to cause prescription to commence more than one year prior to the filing of the instant suit against Dr. Brunson and LAMMICO. On May 23, 1991, the trial judge granted the exception of prescription in favor of Dr. Brunson and LAMMICO, dismissing plaintiffs' claims. 3

Plaintiffs appealed. On appeal, plaintiffs attempted to supplement the record in this proceeding (No. 20,060) with the record of the prior suit (No. 19,599). 4 Also, during the pendency of the appeal, the Louisiana Legislature passed Act No. 661, effective September 6, 1991, which amended certain provisions of the Louisiana Medical Malpractice Act regarding prescriptive periods. In essence, La.R.S. 40:1299.41 G and 40:1299.47(A)(2)(a) were amended to provide that the filing of a claim with the medical review panel suspends prescription with regard to non-named solidary obligors to the same extent that prescription is suspended for those named in the request for review by the panel. 5 On appeal, plaintiffs first argued that suit No. 19,599 served to interrupt prescription against Dr. Brunson and LAMMICO. Supplementation of the record in the present suit with the record in suit No. 19,599 would support this claim. Second, they argued that the doctrine of contra non valentem should apply to prevent the commencement of the running of prescription and that the refusal of the trial court to allow additional evidence regarding constructive knowledge and concealment of information was error. Third, plaintiffs argued that Act 661 should be applied retroactively to suspend the running of prescription on the medical malpractice claims against Dr. Brunson and LAMMICO.

The court of appeal affirmed the judgment of the trial court. Finding that the supplemental record of suit No. 19,599 was not part of the appellate record, it refused to supplement the record on appeal. Second, the court of appeal rejected plaintiff's argument on the application of the doctrine of contra non valentem and found that the trial court did not abuse its discretion in disallowing additional evidence. Third, it refused to apply the provisions of Act 661 of the 1991 Louisiana Legislature retroactively. It affirmed the granting of the exception of prescription dismissing plaintiffs' suit against Dr. Brunson and LAMMICO with prejudice. 6 On plaintiffs' application, we granted certiorari to review the correctness of that decision. 7

The issues presented for our review are (1) whether the existence of suit No. 19,599 served to interrupt prescription against Dr. Brunson and LAMMICO, alleged solidary obligors with the hospitals and whether the record in this suit should be supplemented by the record in suit No. 19,599; (2) whether the doctrine of contra non valentem should apply to prevent the commencement of the running of prescription against Dr. Brunson and her insurer and whether the trial court abused its discretion in disallowing additional evidence on constructive knowledge and concealment of knowledge; and (3) whether Act 661 of the 1991 Louisiana Legislature should be applied retroactively. 8

INTERRUPTION OF PRESCRIPTION BY THE PRIOR SUIT

For the first time on appeal, plaintiffs argued that prescription of the medical malpractice claims against Dr. Brunson and LAMMICO was interrupted by the filing of suit No. 19,599 against West Carroll Hospital, Inc. and Morris Management, Inc., alleged solidary obligors with Dr. Brunson and LAMMICO, and that such interruption continued as long as that suit remained pending. Plaintiffs argue that the appellate court should have considered the record from suit No. 19,599 or alternatively, that the case should have been remanded to the trial court to permit the introduction of the record from suit No. 19,599 into the record of this suit. They cite as authority La.Code Civ.P. arts. 2164 and 2132.

La.Code Civ.P. art. 2164 provides in pertinent part:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.

La.Code Civ.P. art. 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

The court of appeal rejected these articles as authority to supplement the record on appeal. Because the record of the prior suit was not introduced in evidence in the trial court, the court of appeal would not consider it in the disposition of the appeal.

The court of appeal was correct. To receive the record in prior suit No. 19,599 in evidence in this suit would constitute the taking of evidence and the exercise of original jurisdiction in a matter in which neither the court of appeal nor this court is vested with authority to do so. This is not a matter dealing with correcting erroneous records or supplementing records which are deficient as to matters actually introduced in evidence. Barber v. Testa, 331 So.2d 139, 140 (La.App. 3d Cir.1976). Accordingly, this court cannot consider evidence which was not part of the record made in the trial court in this suit.

In Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463, 464 (1970), this court stated that ...

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