Billedeau v. PratherBilledeau v. Prather
Charles Boudreaux, Jr. of Pugh & Boudreaux, Lafayette, for defendant-appellee.
Before GUIDRY, DOUCET, JJ., and MANSOUR,* J. Pro. Tem.
OPINION
ALFRED A. MANSOUR, Judge Pro. Tem.
Plaintiff filed this medical malpractice suit on June 2, 1981. He alleged that he was injured in 1974 when his hand acсidentally broke through a glass pane at his residence; that he was treatеd by defendant; that on June 2, 1980, he was seen by another physician who discovered a sliver of glass lodged in his hand.
Defendant filed a peremptory exception based on
1. June 21, 1974—The date on which defеndant first treated plaintiff;
2. November 8, 1976, June 9-13, 1977—Subsequent dates of treatment of plaintiff by defendant;
3. June 13, 1977—Last date of treatment of plaintiff by defendant;
4. June 2, 1980—Discovеry of glass in plaintiff‘s hand; and,
5. June 2, 1981—Suit filed by plaintiff.
The trial court, citing Ramirez v. St. Paul Fire & Marine Ins. Co., 433 So. 2d 219 (La.App. 3 Cir.1983), writ den. 441 So. 2d 212 (La.), sustained the exception and dismissed plaintiff‘s suit with prejudice. This appeal followed.
The plaintiff‘s position is that our decision in Ramirez is inconsistent with that of the Louisiana Supreme Court in Lott v. Haley, 370 So. 2d 521 (La.1979). He argues that Lott precludes the application of
“Nonеtheless, a newly created statute of limitation or one which shortens existing рeriods of limitation will not violate the constitutional prohibition against divesting а vested right provided it allows a reasonable time for those affectеd by the act to assert their rights.” (370 So. 2d at p. 524)
The Supreme Court declined to apply the statute retroactively in Lott because of the chronology of events in that particular case.
Ramirez was decided May 2, 1983, and on May 23, 1983, the Supreme Court of Louisiana decided Chaney v. State Through Dept. of Health, 432 So. 2d 256 (La.1983). In Chaney the Court held that the doctrine of contra non valentem does not apply to the three year limitation of
“We сonclude that a claim which antedated the effective date of R.S. 9:5628 rеmained viable for three years after the effective date of that statute and thereafter succumbed to the absolute bar impressed by the Louisiаna Legislature, Statutes of limitation, being procedural and remedial in naturе, are generally accorded retroactive effect, unless they аre unconstitutionally cast. And, as the Louisiana Supreme Court observed in Lott, 370 So. 2d at 524: ‘a newly-created statute of limitation or one which shortens existing periods of limitаtion will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act tо assert their rights.’ Citing Cooper v. Lykes, 218 La. 251, 49 So. 2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937). Interpreting R.S. 9:5628 as allowing three years from its effective date fоr the assertion of all prestatute claims, results in the statute passing constitutiоnal muster.”
The Louisiana Supreme Court, in two recent decisions, has held that the three year period of limitation provided for in
For the foregoing reasons we decide (1) that
AFFIRMED.