December 21, 2012

In an appellate court decision rendered by the Fifth Circuit Court of Appeal of the State of Louisiana (“the Court”) on November 13, 2012, the Court interpreted LSA-R.S. 9:5628, which controls the prescriptive period for medical malpractice actions and states that an action for damages against a health care provided must be brought within one year from the date of the alleged act or one year from the date of discovery of the alleged act with a three year limitation from the date of the alleged negligent act.

The Court noted that the Louisiana Supreme Court has held that both the one-year and three-year periods set forth in LSA-R.S. 9:5628 are prescriptive periods, as opposed to preemptive periods. Being prescriptive periods, the time periods are subject to interruption or suspension and are subject to the doctrine of contra non valentem. Contra non valentem means that prescription does not run against a person who could not bring his suit and may be suspended.

The Court stated that contra non valentem applies in four general situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Both the third and fourth categories of contra non valentem have been applied to medical malpractice actions. The fourth category of contra non valentem, commonly known as the “discovery rule,” has been codified in LSA-R.S. 9:5628. However, as explained by the Louisiana Supreme Court, the codified discovery exception of contra non valentem under LSA-R.S. 9:5628 is qualified in that it is made inapplicable after three years from the act, omission or neglect.

The third category applies when the defendant engages in conduct which prevents the plaintiff from availing himself of his judicial remedies. When applied to medical malpractice claims, the Louisiana Supreme Court has explained that “a doctor’s continuing professional relationship with his patient might give rise to the suspension or interruption of prescription.” The Louisiana Supreme Court stated that the continuation of the special relationship between a doctor and patient offers the possibility of correction of the injury and, thus, may postpone the running of prescription, reasoning that as long as the patient remains in the doctor’s care, he could reasonably expect a correction of the diagnosis or tortious treatment.

In the particular case that it was deciding, the Court noted that the medical malpractice plaintiff established that prescription had been suspended through the fourth category of contra non valentem (the June 17, 2008, surgery failed to resolve her left-sided pelvic pain). Although the medical malpractice plaintiff did not return to the medical malpractice defendant until December 1, 2008, she had insufficient knowledge there was a remaining medical problem for the months between June 2008 and December 2008. Therefore, the Court held that the trial court erred in sustaining Defendants’ peremptory exception of prescription against the plaintiff for any treatment or surgery performed more than one year prior to the filing of the request for review but within three years of the date of the treatment.

Source: Renea Fanguy versus Lexington Insurance Company and Michael Graham, M.D., No. 12-CA-136 C/W 11-C-102.

If you may be the victim of medical malpractice in Louisiana or in another state in the United States, you should promptly seek the advice of a Louisiana medical malpractice attorney or a medical malpractice attorney in your state to assist you with your medical malpractice claim.

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