131 So. 3d 371
La. Ct. App.2013Background
- Weber filed suit on August 4, 2006, seeking wrongful death and survival claims on behalf of her aunt, Mary London, who died after Hurricane Katrina at Metropolitan Hospice.
- The action was originally pled as a class action and consolidated with other similar suits against Metropolitan.
- Metropolitan filed exceptions of no right of action and prescription, which the trial court granted, dismissing the case.
- Weber amended her petition on February 24, 2011, in her capacity as the succession representative for London.
- The trial court granted Metropolitan’s exceptions as to both the wrongful death and survival claims without a hearing or written reasons for the underlying judgment.
- On appeal, the court affirmed dismissal of the wrongful death claim but reversed as to the survival claim and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether no right of action barred the survival claim | Weber — Weber, as London's succession representative, has a right to pursue survival. | Metropolitan — survival is limited to designated classes and Weber does not fit them here. | Trial court erred; survival claim may proceed. |
| Whether the amended petition relates back to defeat prescription | Weber — amended petition relates back under Giroir and defeats prescription. | Metropolitan — relation back does not apply due to medical malpractice considerations and timing. | Amended petition relates back; survival claim not prescribed. |
Key Cases Cited
- Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La. 1985) (amendment can relate back when same conduct; notice to defendant; no prejudice)
- Warren v. Louisiana Medical Mut. Ins. Co., 21 So.3d 186 (La. 2008) (LMMA; medical malpractice actions have special prescription rules)
- LaCoste v. Pendleton Methodist Hosp., L.L.C., 966 So.2d 519 (La. 2007) (LMMA limits apply to medical malpractice; not general tort)
- Estate of Robinson v. Continental Cas. Co., 31 So.3d 1194 (La. App. 2 Cir. 2010) (amended survival petitions and relation back distinguished from this case)
- Montalbano v. Buffman Inc., 90 So.3d 503 (La. App. 4 Cir. 2012) (Katrina abandonment cases; LMMA distinctions reaffirmed)
- Burandt v. Pendleton Memorial Methodist Hospital, 123 So.3d 236 (La. App. 4 Cir. 2013) (Katrina-related negligence not sounding in medical malpractice)