An Uncertain Prescription-Medical Malpractice Actions in Louisiana

• Author: Daniel A. Kramer
• Position: J.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University
• Pages: 487-518

An Uncertain Prescription—Medical Malpractice

Actions in Louisiana

INTRODUCTION

Terry Warren died on October 12, 2000, as a result of heart

problems while undergoing treatment.1 Although Mr. Warren’s

widow and one daughter asserted wrongful death and survival

actions against the treating physicians, the other daughter was not

allowed to do so because the prescriptive period had expired by the

time her claims were asserted.2 According to the Louisiana

Supreme Court, the general codal rules of interruption of

prescription do not apply in medical malpractice actions.3 This

interpretation allows for the possibility that a wrongful death

claimant’s action can prescribe before it ever accrues, even if the

victim of malpractice timely files suit before his death, leaving the

wrongful death plaintiff with no chance at a remedy.4

In 1975, the Louisiana Legislature passed what is commonly

known as the Medical Malpractice Act in an effort to curtail rising

medical costs and insurance rates.5 Louisiana Revised Statutes

sections 40:1299.41–.49 set forth the procedure by which medical

malpractice actions must be asserted.6 Louisiana Revised Statutes

section 9:5628 governs the prescriptive period for such actions.7

Perceived conflicts between the Medical Malpractice Act and

the Louisiana Civil Code challenge Louisiana courts, which have

wrestled with the suspension of prescription provided by Louisiana

Revised Statutes section 40:1299.47 and the interruption of

prescription provided by the Civil Code.8 The challenges lie in

Copyright 2012, by DANIEL A. KRAMER.

1. Warren v. La. Med. Mut. Ins. Co., 21 So.3d 186, 203 (La. 2009).

2. Id. at 203, 206–08.

3. Borel v. Young, 989 So. 2d 42, 67 (La. 2008).

4. Wrongful death and survival actions do not accrue until the death of the

decedent. See Taylor v. Giddens, 618 So. 2d 834, 840 (La. 1993); discussion

infra Part II.B.3.

5. Louisiana Revised Statutes sections 40:1299.41–.49 are commonly

known under the name “the Medical Malpractice Act.” In addition, section

9:5628 is often included under the umbrella of “the Act.” The policies behind

the Medical Malpractice Act were described in Kandy G. Webb, Comment,

Recent Medical Malpractice Legislation—A First Checkup, 50 TUL. L. REV.

655, 666 (1976).

6. See Taylor, 618 So. 2d at 841.

7. LA. REV. STAT. ANN. § 9:5628 (2007).

8. See, e.g., Hernandez v. Lafayette Bone & Joint Clinic, 467 So. 2d 113

(La. Ct. App. 3d. 1985), overruled by LeBreton v. Rabito, 714 So.2d 1226 (La.

1998); Taylor, 618 So. 2d 834; LeBreton, 714 So. 2d 1226; Borel, 989 So. 2d

42; Warren v. La. Med. Mut. Ins. Co., 21 So. 3d 186 (La. 2009).

488 LOUISIANA LAW REVIEW [Vol. 72

determining (1) whether suspension of prescription provided in

Louisiana Revised Statutes section 40:1229.47 should preempt the

general rules of prescription found in the Louisiana Civil Code; (2)

whether such preemption should extend to barring relation back of

amended petitions; and (3) whether the prescriptive period for

wrongful death claims is governed by Louisiana Revised Statutes

section 9:5628 or Louisiana Civil Code article 3492.9

This Comment explores a line of cases, including LeBreton v.

Rabito, Borel v. Young, and Warren v. Louisiana Medical Mutual

Insurance Co., and suggests an alternative interpretation that

would lead to results more in line with the general rules of

prescription set forth in the Louisiana Civil Code.10 Part I provides

a background in this area of the law by reviewing pertinent statutes

and principles of Louisiana procedure. Part II analyzes the

reasoning of the cases in question and criticizes certain decisions.11

It also contrasts application of current law with an alternative

suggested by the analysis. Part III concludes the comment, briefly

outlining suggestions designed to eliminate the unfair procedural

bar created in LeBreton, Borel, and Warren. The judge-made

barrier of uninterruptible prescription in medical malpractice cases

is bad medicine for Louisiana’s codal command, whereby the

person at fault must repair the damage he has caused.12

I. BACKGROUND

A. The Medical Malpractice Act

The Louisiana Legislature passed the Medical Malpractice Act13

amid a trend of increasing numbers of medical malpractice claims

9. Compare Taylor, 618 So. 2d at 841 (holding that Louisiana Civil Code

article 3492 governs the prescriptive period for wrongful death in medical

malpractice actions), with Warren, 21 So. 3d at 207–08 (applying the

prescriptive period set forth Louisiana Revised Statutes section 9:5628 to a

claim of wrongful death arising in medical malpractice).

10. LeBreton, 714 So. 2d 1226; Borel, 989 So. 2d 42; Warren, 21 So. 3d 186.

11. The primary cases examined are LeBreton v. Rabito, 714 So. 2d 1226

(La. 1998); Borel v. Young, 989 So. 2d 42 (La. 2008); and Warren v. La. Med.

Mut. Ins. Co., 21 So. 3d 186 (2009).

12. LA. CIV. CODE ANN. art. 2315 (2010).

13. Louisiana Revised Statutes sections 40:1299.41–.49 are commonly

known as the Medical Malpractice Act, but the discussion herein will be

confined mostly to Act No. 808, 1975 La. Acts 1860 (enacting Louisiana

Revised Statutes section 9:5628), and Act No. 817, 1975 La. Acts 1875

(enacting Louisiana Revised Statutes sections 40:1299.41–.49), which were

enacted to slow the growth of rising medical costs. See E. Scott Hackenberg,

Comment, Puttering About in a Small Land: Louisiana Revised Statutes 9:5628

2012] COMMENT 489

and higher damages awards, which consequently led to higher

malpractice insurance costs and higher medical costs for patients.14

The Act was a compromise between the public good, represented by

lower medical costs and increased access to medical care, and the

private harm of limiting actions in malpractice.15

Louisiana Revised Statutes section 40:1299.47 requires that all

malpractice claims against qualified health care providers, other

than those submitted for binding arbitration, must be reviewed by a

medical review panel (MRP).16 The MRP procedure serves as an

inexpensive way to filter out spurious medical malpractice

claims.17 Louisiana Revised Statutes section 9:5628 provides a

prescriptive period of one year from the date of the commission or

discovery of the alleged malpractice on actions for damages

against health care providers.18 However, “in all events such

and Judicial Responses to the Plight of the Medical Malpractice Victim, 50 LA.

L. REV. 815, 815–16 (1990); see also Webb, supra note 5, at 666.

14. Webb, supra note 5, at 658-59.

15. Crier v. Whitecloud, 496 So. 2d 305, 308–9 (La. 1986) (citing Webb,

supra note 5); Hackenberg, supra note 13, at 815–16; Marc S. Firestone,

Comment, Prescription—What You Don’t Know Can Hurt You—Louisiana

Adheres to a Three Year Limit on the Discovery Rule, 58 TUL. L. REV. 1547,

1553 n.40 (1984).

16. Louisiana Revised Statutes section 40:1299.47 provides: “All

malpractice claims against health care providers covered by this Part, other than

claims validly agreed for submission to a lawfully binding arbitration procedure,

shall be reviewed by a medical review panel established as hereinafter provided

for in this Section.” LA. REV. STAT. ANN. § 40:1299.47(A)(1)(a) (Supp. 2011).

Louisiana Revised Statutes section 40:1299.42 provides the requirements for

qualification under the Act, which include filing proof of financial responsibility

with the Patient’s Compensation Fund Oversight Board and payment of a

surcharge. LA. REV. STAT. ANN. §40:1299.42 (Supp. 2011).

17. Webb, supra note 5, at 681. Negative review panel findings do not bar

subsequent court claims. Id.

18. Louisiana Revised Statutes section 9:5628 provides:

No action for damages for injury or death against a ny [listed health care

provider], hospital or nursing home . . . 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.

LA. REV. STAT. ANN. § 9:5628(A) (2007). The three year “outside limit” is a

codification of the “discovery doctrine,” known in Louisiana and civil law

jurisdictions as contra non valentem, short for contra non valentem agere nulla

currit praescriptio, which means “prescription does not run against a party

unable to act.” Hebert v. Doctors Mem’l Hosp., 486 So. 2d 717, 721 n.7 (La.

1986). Despite the text of Louisiana Civil Code article 3467, “[p]rescription runs