Harvey v. DavisHarvey v. Davis
In this medical malpractice case, the defendant-relator, Dwight McKenna, M.D., seeks supervisory writs to set aside the trial court‘s judgment overruling his exception of prescription. According to defendant, the suit filed more than three years after the alleged malpractice is untimely under
Plaintiffs allege that defendants “... engaged in a scheme, both together and independently, to conceal the facts of their negligence from plaintiff ... and in fact did conceal the true facts of plaintiffs’ medical condition from plaintiff and his mother, and in doing so committed fraud, misrepresentation and other ill practices, which impeded and prevented the plaintiff and his guardian and representatives from knowing of and asserting his cause of action.” By these allegations of fraud, plaintiffs claim, under the doctrine of contra non valentum, that prescription cannot run because defendant‘s conduct prevented them from knowing or acting upon their cause of action. See Corsey v. State Dept. of Corrections, 375 So.2d 1319 (La.1979); Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916). We agree.
We distinguish Chaney v. State, through Dept. of Health, 432 So.2d 256, recently decided by the Supreme Court on May 23, 1983. Unlike our case, the plaintiffs in Chaney relied on the doctrine of contra non valentum based on allegations of ignorance of their cause of actions rather than any fraudulent concealment by the defendants. In Chaney, the Supreme Court narrowly held that the three year prescriptive period of
Under these circumstances, we conclude the trial judge properly overruled defendant‘s plea of prescription. Accordingly, the application is denied.