Jerry Wayne BRANCH, et ux. v. WILLIS-KNIGHTON MEDICAL CENTER.
No. 92-CC-3086.
Supreme Court of Louisiana.
April 28, 1994.
636 So.2d 211
DENNIS, Justice.
John L. Hammons, Nelson, Hammons & White, Shreveport, for applicant.
Milton Caldwell Roberts, Jr., Mayer, Smith & Roberts, Shreveport, for respondent.
DENNIS, Justice.*
This is a suit by Jerry Wayne Branch and his wife seeking strict tort products liability recovery from Willis-Knighton Medical Center (“WKMC“) for damage sustained by the couple because Branch contracted hepatitis from contaminated blood sold to him in 1976 by WKMC. The only question at this stage of the case is whether the suit was timely brought because it was filed less than one year after the Branches’ discovery of the
We conclude that the plaintiffs’ suit was filed timely because their strict tort products liability action is subject to the general one year prescription applicable to all delictual actions, not the special prescription rule applicable to medical malpractice actions. Accordingly, we reverse the court of appeal judgment applying the special rule and reinstate the judgment of the trial court overruling the defendant‘s exception of prescription.
The facts alleged by the plaintiffs’ petition are as follows. Jerry Wayne Branch underwent a surgical fusion of his lumbar spine at Willis-Knighton Medical Center (“WKMC“) while he was hospitalized there from July 19, 1976 through August 4, 1976. Branch was transfused with one unit of blood sold by WKMC during his hospitalization. Branch has received no other blood transfusions. Over thirteen years later, on September 6, 1989, Branch submitted to a liver biopsy, and subsequently he went through other diagnostic studies. From the results of these tests, Branch discovered that he was infected with hepatitis C that he had contracted from the blood sold to him by WKMC in 1976.
Branch and his wife filed this suit against WKMC on September 5, 1990 alleging that WKMC is liable for the damage caused them by the contaminated blood that WKMC sold to Branch in 1976. WKMC filed an exception of prescription. The trial court overruled the exception, concluding that, under the general rule of liberative prescription applicable to plaintiffs’ products or strict tort liability action, the running of prescription was suspended under the doctrine of contra non valentem until the plaintiffs discovered the existence of their claim on September 6, 1989. Therefore, the trial court decided, the plaintiffs’ suit was timely because one year did not elapse from the time of the plaintiffs’ discovery of their claim and the filing of their petition on September 5, 1990.
The court of appeal granted WKMC‘s application for a writ and reversed. Branch v. Willis-Knighton Medical Center, 607 So.2d 883 (La.App. 2d Cir.1992). The court reasoned that the plaintiffs’ strict tort products liability action was barred by the three year over-all limitation period of the special statute of limitations applicable to actions for medical malpractice. We granted certiorari to consider whether the plaintiffs’ strict tort products liability action is subject to the general liberative prescription rule for delictual actions or the special statute of limitation applicable to actions for medical malpractice.
1.
The manufacturer‘s liability development in the United States has heavily influenced products liability law in Louisiana. American products liability is civil liability for damage caused by a dangerous or defective product. There are several theories upon which products liability may be based, including negligence, breach of warranty, misrepresentation or strict tort liability. The courts in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal.1963) and following cases recognized and applied strict products liability in tort because of serious obstacles to a victim‘s recovery in product injury cases under the other theories. Jurists and scholars advanced a variety of policy justifications for strict tort products liability, including (1) shifting the loss from consumers to manufacturers, who through pricing and insurance are better able to bear the loss incurred by injury from defective products; (2) providing manufacturers with an incentive to market safer products; and (3) relieving the plaintiff of the burden of proving specific acts or omissions
This court embraced the strict products liability in tort theory reflected in Restatement (Second), § 402 A in Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971). Although Justice Tate, the author of the opinion, did not cite the Restatement (Second) or directly acknowledge that the court was adopting that theory, the rule he announced was very similar:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff‘s injuries were caused by reason of the defect. Id., 250 So.2d at 755.
In fact, the rule may be traced almost verbatim to an earlier opinion by Justice Tate, written while a judge on an intermediate appellate court, in which he cited § 402 A as his principal source. Meche v. Farmers Drier & Storage Co., 193 So.2d 807 (La.App. 3d Cir.1967). See generally, Comment, Basic Principles of Manufacturer‘s Liability under the Civil Code of Quebec, Conférences sur le Nouveau Code Civil Du Québec, 406-408 (1991).
Subsequently, in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981), this court held that under the strict tort product liability theory a hospital blood bank may be held strictly liable in tort when the blood it sells creates an unreasonable risk of harm to others, e.g., when that blood is contaminated with hepatitis virus, and, in fact, results in injury or disease to a human being. In doing so, the court expressly rejected the blood bank‘s defense based on the
In 1981, after the DeBattista decision, the legislature added
2.
The majority of the court of appeal erred, however, in applying the special medical malpractice statute of limitations to the plaintiffs’ strict products liability action and therefore incorrectly reversed the trial court‘s judgment and sustained the exception of prescription. That statute was added by Act No. 808 of 1975, which, in pertinent part, provided:
Section 1. Section 5628 of Title 9 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:
§ 5628. Actions for medical malpractice
A. No action for damages for injury or death against any physician, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, 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, ommission [sic] or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
The law does not apply to strict tort products liability actions arising out of the sale of blood in a defective condition unreasonably dangerous to the user or consumer. In fact,
Most medical malpractice actions are based on the physician‘s alleged failure to exercise the requisite skill and care. 1 Louisell & Williams, supra § 8.03. In modern times two separate bases, implied contract and tort, have been recognized for the identical duty of exercising due care. Id. Therefore,
Strict products liability actions, on the other hand, arise out of the sale of a product in a defective condition unreasonably dangerous to the user or consumer and the causation thereby of physical harm to such a person. See, e.g., Restatement (Second) Torts § 402 A. Furthermore,
The background and history of
During the 1970‘s the rising costs of medical malpractice insurance and the decreasing availability of such coverage gave rise to the perception of a “medical malpractice crisis” in certain states. Note, Constitutional Law—Louisiana Medical Malpractice Review Panel Upheld Under Equal Protection Scrutiny, 53 Tul.L.Rev. 640, 641 (1979). In 1975, the legislatures of many states, prompted by the lobby of the American Medical Association and the malpractice insurance companies (AMA lobby), enacted significant changes in substantive and procedural laws governing the adjudication of medical malpractice claims. Id., and sources cited therein. Legislation was adopted to limit the amount of awards, constrain attorneys’ contingent fees, shorten and tighten statutes of limitations, redefine medical standards of care, and require pretrial screening or arbitration of claims. Id.
Evidently, the AMA lobby considered the shortening and tightening of statutes of limitations affecting claims against physicians to be one of the most effective means of controlling the malpractice insurance crisis. Comment, Recent Medical Malpractice Legislation—A First Checkup, 50 Tul.L.Rev. 655, 672 (1976). During 1975, eighteen states were persuaded to redefine their statutes of limitations to restrict the number of medical malpractice suits brought. Id. The legislation effected basically two kinds of changes in the statutes of limitations for discovering and bringing malpractice actions. In states that had adopted the “discovery rule,” which delays the running of prescription until the victim discovers the injury, the new law typically imposed an over-all period of peremption or repose limiting the time during which the discovery rule could prevent the running of prescription. Id. at 673. In states where the discovery rule was not recognized, the new law simply shortened the statutory period for bringing malpractice suits. Id.
In Louisiana, in response to or in anticipation of a malpractice insurance crisis, the legislature in its 1975 regular session, adopted a series of laws limiting the rights of medical malpractice claimants. Besides the special statute of limitations for medical malpractice claims,
The legislation took this path in Louisiana probably because, prior to the enactment of
In addition to the reasons noted above, the provision making
The conclusion that the special medical malpractice statute of limitation,
§ 1299.41. Definitions and general applications
A. As used in this Part:
* * * * * *
(7) “Tort” means any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence
along with his best judgement [sic] in the application of his skill. (8) “Malpractice” means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.
(9) “Health care” means any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient‘s medical care, treatment or confinement.
The Medical Malpractice Act, like the special medical malpractice statute of limitations, does not mention strict liability or products liability and uses terms associated with the traditional medical malpractice action based primarily on professional negligence and implied contract concepts, viz., “legal wrong,” “breach of duty,” “negligent or unlawful act or omission,” “standard of care,” “professional services,” “degree of skill ordinarily employed,” “same community or locality,” “reasonable care and diligence,” “breach of contract” and “treatment performed or furnished.” On the other hand, like the medical malpractice statute of limitations, the Medical Malpractice Act does not contain the terms and concepts indispensable to the definition, classification and administration of strict tort products liability actions. Interpreting the special statute of limitation for medical malpractice actions in reference to the Medical Malpractice Act, therefore, makes firmer our conclusion that it was not the legislative aim to subject any strict tort product liability action to the special statute of repose for malpractice suits.
For the foregoing reasons we are convinced that
Because plaintiffs’ strict tort product liability action is not subject to the special rule of prescription applicable to medical malpractice actions,
REVERSED AND REMANDED.
LEMMON, J., dissents and assigns reasons.
LEMMON, Justice, dissenting.
I disagree that the sale of blood by a hospital to a patient for a transfusion during surgery was the sale of a product which was unreasonably dangerous to normal use, meaning that the blood was “dangerous to an extent beyond that which would be contemplated by an ordinary consumer.” DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26, 30 (La.1981). The danger of a patient‘s contracting hepatitis from a blood transfusion is a risk to which the patient agrees when he consents to the procedure after being informed of the risk by the surgeon or hospital representative. Id. (Blanche, J., dissenting).1 A reasonable consumer of
The cause of action for a patient who contracts hepatitis from blood sold by a hospital for transfusion is generally one based on lack of informed consent (or on negligence of hospital employees in obtaining or handling the blood). A cause of action based of lack of informed consent may be available in this case, but (as the majority points out) is subject to the three-year peremptive limitation of