Walter Lewis GOVER, et al., Plaintiffs-Appellants,
v.
Dr. Ronze McIntrye BRIDGES, et al., Defendants-Appellees.
Court of Appeal of Louisiana, Second Circuit.
Bowers & Bowers by Gary A. Bowers, Shreveport, for plaintiff-appellant Walter Lewis Gover.
Francis M. Gowen, Jr., Shreveport, for plaintiff-appellant Evelyn Gover Smith.
Lunn, Irion, Johnson, Salley & Carlisle by Brian D. Smith, Shreveport, for defendants-appellees.
Before FRED W. JONES, Jr., SEXTON and LINDSAY, JJ.
*1118 LINDSAY, Judge.
The plaintiffs, Walter Gover and his sister Evelyn Gover Smith, filed a claim for the wrongful death of their mother based on medical malpractiсe. Defendant filed an exception of prescription which was sustained by the trial court. Plaintiffs appealed the trial court ruling. We affirm.
FACTS
On January 9, 1976 the decedent, Velma E. Gover, mother of the plaintiffs, was examined by the defendant, Dr. Ronze McIntyre Bridges, and was found to have a lump in the left breast. Decedent was 75 years old, had a history of heart trouble, and weighed more than 300 pounds. Decedent entered the Minden Medical Center on January 23, 1976 in order to stabilize her heart condition prior to surgery. It appears that the original plan was to perform a biopsy under local anesthetic and then make a determination regarding the proper medical treatment. The decedent signed a consent form authorizing the biopsy by the defendant and "such additional operations or procedures as are considered theraputically necessary on the basis of findings during the course of the operation."
No biopsy was performed under local anesthetic. On the contrary, on January 26, 1976 the decеdent underwent a radical mastectomy under general anesthetic. Although she developed heart problems during the operation, her condition was stabilized. Following the operation she was transferred to a semi-private room. Evelyn Gover Smith stayed at the hospital with the decedent following surgery. Late that night the decedent agаin developed heart problems. Mrs. Smith summoned help, but efforts to revive decedent were unsuccessful and she passed away on the night of January 26, 1976.
On March 15, 1976 decedent's daughter, Evelyn Gover Smith, wrote the Minden hospital indicating she thought the decedent was in the hospital only for a biopsy, and she requested information as to the cause of death. Defendant responded with a letter indicating decedent was told a two step process would be followed in which decedent would first have a biopsy and then a radical mastectomy if the mass was determined to be cancerous. Defendant expressed his regrets, stating that "everything was done possible to prevent what hapрened."
On March 30, 1985 Evelyn Gover Smith read an article in The Times regarding a malpractice judgment rendered against the defendant in the district court in Webster Parish in the case of Cooper v. Bridges. After reading the article Evelyn Gover Smith contacted the attorneys who represented Mrs. Cooper and her family. It was determined that the attorneys had received a copy of decedent's hospital chаrt in response to a subpoena duces tecum in the Cooper case requesting charts on all of defendant's patients who died in January, 1976. On May 30, 1985 plaintiffs filed suit against defendant and his insurer, St. Paul Fire and Marine Insurance Company.
Defendant filed an exception of prescription based on LSA-R.S. 9:5628 which provides claims arising from medical malpractice must be brought within one year from the date of the alleged act, omission or neglect or within one year from discovery of the alleged act, omission or neglect, and in all events within three years from the date of the act, omission or neglect.
A hearing was held on the exception of prescription. Plaintiffs argued that defendant misrepresented the facts to them in his letter and as a result they were unable to bring their claim at an earlier date. They also argued that due to this misrepresentation, the doctrine of contra non valentem agere nulla currit praescriptio suspended the running of prescription. At the hearing, Dr. Bridges admitted his letter was in error in stating that a biopsy was to be performed first.
Dr. George McCormick, the coroner for Caddo Parish and a forensic pathologist, testified for plaintiff that the phrase in the defendant's letter indicating that everything possible was done to prevent the death was inaccurate. He testified that *1119 additional blood gas tests should have been performed prior to surgery, as well as a stress test. He also testified the two step process of performing the biopsy under local anesthetic first would have prevented the heart problems experienced by the decedent.
The trial court sustained the exception of prescription. In oral reasons the court found that LSA-R.S. 9:5628 legislatively overruled the doctrine of contra non valentem and therefore the claim had presсribed. The court also found the plaintiffs knew of the decedent's size and her heart condition, and they were aware that following the surgery decedent had undergone a mastectomy under general anesthestic and not a biopsy under local anesthetic. The court reasoned that those factors were sufficient to put plaintiffs on notice and to prompt further inquiry. The court also found LSA-R.S. 9:5628 was constitutional, finding a legitimate state interest in lowering health care costs by limiting the time during which malpractice claims could be brought.
Plaintiffs appealed, claiming that the trial court erred in sustaining the exception of prescription. They argue that LSA-R.S. 9:5628 does not apply to wrоngful death claims, that contra non valentem has not been completely legislatively overruled and should apply in this case because defendant's misrepresentation prevented them from bringing their claim. They also argue that LSA-R.S. 9:5628 is unconstitutional because it violates equal protection and due process by discriminating against tort victims without a rational basis, citing U.S. Const.Amend. XIV § 1; La.Const. Art. 1 Sections 2 and 22 (1974).
APPLICABILITY OF LSA-R.S. 9:5628
Plaintiffs argue that LSA-R.S. 9:5628 dealing with the time period in which to bring a medical malpractice claim does not apply to this action for wrongful death of the decedent. They argue that LSA-C.C. Art. 2315 is the applicable law, as this article establishes the right to bring claims for wrongful death, enumerates those persons entitled to bring thе action and establishes a one-year limit from the time of death to bring suit. They also argue that the one-year time limit fixed under LSA-C.C. Art. 2315 is suspended by the doctrine of contra non valentem agere nulla currit praescriptio.
The argument that LSA-C.C. Art. 2315 applies rather than LSA-R.S. 9:5628 is based on two cases dealing with this issue. In Lambert v. Michel,
We disagree with the reasoning in Lambert and Giroir. LSA-R.S. 9:5628 is the specific statute setting forth the time limits for filing claims based on medical malpractice. The language of the statute is broаd enough to include not only actions for personal injury due to malpractice, but also survival and wrongful death claims:
No action for damages for injury or death against any physician, chiropractor, *1120 dentist, or hospital duly licensed under the laws of this state whether based in tort, breach of contract or otherwise, arising out of patiеnt care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year of date of discovery of alleged act, omission 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 а period of three years from the date of the alleged act, omission or neglect....
This language includes wrongful death claims as these are actions for damages based in tort arising out of patient care. Therefore, such actions must be brought within one year from the date of the alleged act, omission or neglect, or within onе year of discovery of the alleged act, omission or neglect, but in all events within three years of the date of the alleged act, omission or neglect. Therefore, we find that LSA-R.S. 9:5628 establishes the time limit within which plaintiffs were required to file their claim for wrongful death based upon medical malpractice.
CONTRA NON VALENTEM AGERE NULLA CURRIT PRAESCRIPTIO
We next turn to a consideration of whether the doctrine of contra non valentem agere nulla currit praescriptio applies to this statute to suspеnd the running of prescription.
Under this doctrine, prescription does not run against a person unable to bring an action. The doctrine was recognized in Corsey v. State Department of Corrections,
In Chaney v. State through Department of Health,
The application of contra non valentem to LSA-R.S. 9:5628, when plaintiff is prevented from bringing a claim by fraud or misrepresentation by the defendant, was addressed in Harvey v. Davis,
However, a different result was reachеd by the Third Circuit as to the effect of LSA-R.S. 9:5628 on the doctrine of contra non valentum. In Ramirez v. St. Paul Fire and Marine Insurance Company,
The claim that contra non valentem suspended the running of prescription under LSA-R.S. 9:5628 was raised before this court in Grant v. Carroll,
In the present case, plaintiffs argue that defendant's letter, which indicated a two step procedure was utilized to perform decedent's mastectomy and the statement that everything possible was done to prevent the death, was misleading and prevented them from asserting their causе of action. They argue these misrepresentations by defendant triggered the doctrine of contra non valentem and suspended the running of prescription until 1985 when they obtained a copy of decedent's hospital chart and became aware of the misrepresentations.
The trial court did not apply the doctrine of contra non valentem and found that plaintiffs did not prove the requisite fraud or misrepresentation neсessary to suspend prescription under the doctrine, even if it was applicable. The trial court found that at the time the operation was performed, plaintiffs were aware of decedent's heart condition and weight, and were aware that a radical mastectomy under general anesthetic had been performed, instead of a biopsy under local anesthetic. The record indicates the plaintiffs knew as much immediately following the operation as they did when they sought legal assistance more than nine years later. Under the facts of this case, it is not necessary to determine whether LSA-R.S. 9:5628 legislatively overruled the entire doctrine of contra non valentem. Rather, we agree with the trial court that if that doctrine should apply, plaintiffs failed to show the requisite fraud, misrepresentation, or ill practices necessary to prevent them from asserting their claim and preventing the running of prescription.
CONSTITUTIONALITY OF LSA-R.S. 9:5628
In argument and brief, plaintiffs contend that LSA-R.S. 9:5628 is unconstitutional because it violates equal protection and duе process. This record does not contain any special pleadings attacking the constitutionality of LSA-R.S. 9:5628. Although unclear, the record indicates that the issue was first raised in the trial court by plaintiff's brief in opposition to defendant's peremptory exception of prescription. *1122 Regardless of whether the issue was properly рresented to the trial court (and ultimately to this court) the trial court did consider the issue and ruled that the statute was constitutional.
The constitutionality of the statute is argued in brief in this court. Assuming again that the issue is properly before us, we find no constitutional infirmity in LSA-R.S. 9:5628. The claim that this statute denies equal protection and due process has previously been raised in other appellate courts in this state. Blanchard v. Farmer,
Each of the cоnstitutional attacks on the statute advanced by plaintiffs in the instant case have been considered in the cases mentioned above. These arguments have again been considered here and rejected. Accordingly, the trial court determination that the statute is constitutional is affirmed.
CONCLUSION
For the reasons stated above, we find that LSA-R.S. 9:5628 is а constitutionally valid, special statute, dealing with damage claims arising from alleged medical malpractice, including claims for wrongful death. Even if the doctrine of contra non valentem agere nulla currit praescriptio has not been completely overruled by the legislative enactment of LSA-R.S. 9:5628, we find that the trial court was correct in its finding that plaintiffs failed to prove sufficient circumstancеs which would trigger the operation of that doctrine including fraud, misrepresentation, or ill practice by the defendant. We therefore affirm the trial court ruling that plaintiffs' actions for wrongful death of their mother due to the defendant's alleged medical malpractice have prescribed.
The ruling of the trial court sustaining defendant's exception of prescription is affirmed.
AFFIRMED.
NOTES
Notes
[1] We note the Louisiana Supreme Court has granted writs in Crier v. Whitecloud, supra, however a ruling on the writ has not been handed down as of the date of this opinion.