LeBreton v. RabitoLeBreton v. Rabito
Diana LeBRETON
v.
Felix O. RABITO, M.D., Patrick C. Breaux, M.D. and Thomas A. Krefft, M.D.
Supreme Court of Louisiana.
Edward J. Rice, Arthur F. Hickham, Jr., Adams & Reese, New Orleans, for Applicant.
Eugene P. Redmann, Lloyd W. Hayes, Thomas Hayes & Buckley, New Orleans, for Respondent.
Deborah I. Schroeder, Metairie, for Amici Curiae Lammico.
Amy Waters Phillips, Baton Rouge, for Amici Curiae Louisiana State Medical Society.
KNOLL, Justice.[*]
The sole issue before us in this medical malpractice claim is whether the lower courts erred as matter of law in applying the general provision on interruption of prescription found in La.Civ.Code art. 3462 simultaneously with the specific provision on suspension of prescription contained in
FACTS
On August 13, 1991, Albert LeBreton, Jr. suffered a heart attack at his home and was taken to Pendleton Memorial Hospital. At the time of his arrival at the hospital, Mr. LeBreton was unconscious. Over the next few days of hospitalization, Drs. Felix Rabito, Patrick Breaux, and Thomas Krefft treated Mr. LeBreton. On August 18, 1991, after consultation with Mrs. LeBreton, Dr. Breaux ordered the cessation of all artificial life support, including mechanical respiration, antibiotic treatment, food, and hydration, from Mr. LeBreton. The plaintiff, Diana LeBreton, Mr. LeBreton's daughter, protested her mother's decision and asked the treating physicians to reinstate nourishment, hydration, and medication to her father.[2] The physicians refused the daughter's request. Subsequently, on August 20, 1991, Mr. LeBreton died.
On August 18, 1992, the plaintiff filed a wrongful death claim in Civil District Court, Orleans Parish, against Drs. Rabito, Breaux, and Krefft. Her wrongful death action alleged that the "deliberate act of euthanasia" by the defendants caused her father's death. Although plaintiff contended in her petition that her action did not fall under the Louisiana Medical Malpractice Act, since defendants acted intentionally, she also filed a request on August 19, 1992, for a review of the claim by a medical review panel with the Patient's Compensation Fund Oversight Board.
Drs. Rabito and Breaux interposed a dilatory exception of prematurity to the suit filed in Civil District Court. On July 20, 1993, the trial court granted the exception and dismissed plaintiff's suit without prejudice. Dr. Krefft also filed a dilatory exception of prematurity which was granted on August 26, 1993, dismissing plaintiff's suit against him without prejudice.
On August 12, 1996, the medical review panel issued its opinion, finding no medical malpractice on the part of Drs. Rabito, Breaux, and Krefft. On August 14, 1996, the medical review panel sent notification of its opinion to plaintiff's attorney. On February 3, 1997, approximately five months after plaintiff's attorney was notified of the panel's opinion, plaintiff filed suit for wrongful death in Civil District Court against Drs. Rabito, Breaux, and Krefft. Shortly thereafter, Drs. Rabito, Breaux, and Krefft filed peremptory exceptions of prescription, alleging that plaintiff's wrongful death claim was prescribed on its face.[3]
The trial court, relying on Hernandez, supra, overruled the doctors' peremptory exception of prescription. The appellate court denied the doctors' supervisory writ on the same ground.
OVERVIEW OF HERNANDEZ
In Hernandez, the plaintiff discovered the alleged act of medical malpractice on March 16, 1981, and suit was filed in the district court against the Lafayette Bone & Joint Clinic and three physicians on March 15, 1982. The following week on March 22, 1982, the plaintiff requested a medical review panel. On July 12, 1982, the trial court, acting on the defendant's dilatory exception of prematurity, dismissed the suit without prejudice.
The medical review panel acted on August 9, 1983, and notified plaintiff of its decision *1228 on August 12, 1983. Four months later, on December 16, 1983, the plaintiff filed a second suit against the defendants. After the defendants filed a peremptory exception of prescription to the second suit, the trial court found that the plaintiff's claim was prescribed. The Court of Appeal, Third Circuit, reversed.
The Third Circuit held that the plaintiff's filing of his law suit on March 15, 1982, interrupted prescription under La.Civ.Code art. 3462 which provides as follows:
Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.
It further held that under La.Civ.Code art. 3466 prescription effectively begins "to run anew from the last day of interruption." However, it determined that the one-year prescriptive period for medical malpractice claims did not begin to run anew because under
The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification... to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part,....
Furthermore, based upon La.Civ.Code art. 3472 "[t]he period of suspension is not counted toward accrual of prescription" and did not commence again until the period of suspension terminated. Accordingly, the Hernandez court reasoned, on the basis of La. Civ.Code art. 3466 and
LIBERATIVE PRESCRIPTION
In their argument before us, Drs. Rabito, Breaux, and Krefft contend that instead of applying the general rules of prescription provided in the Civil Code, this case should have been resolved with the more specific rules enunciated in the Medical Malpractice Act. Simply stated, they urge that the lower courts should not have simultaneously applied the principles of interruption and suspension of prescription. We agree.
Liberative prescription is a mode of extinguishing a legal claim that has not been filed by a creditor during a time period stipulated by law. La.Civ.Code art. 3447; G. Baudier-Lacantinerie & A. Tissier, TRAITE THEORIQUE ET PRATIQUE DE DROIT CIVIL, No. 25 (4th ed.1924), reprinted in 5 CIVIL LAW TRANSLATIONS at 15 (La. St. Law Inst. Trans.1972). The basis for prescription may be said to rest on three major policies. First, it promotes social and legal stability. Id., supra, No. 27, at 16-17. Second, prescription is based partially on a presumption of payment. Id., supra, No. 32, at 21. Third, when prescription extinguishes a debt it is usually because of the negligence of the creditor.[4]
Prescription runs against all persons unless an exception is established by legislation. La.Civ.Code art. 3467. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. Wimberly v. Gatch, 93-2361 *1229 (La.4/11/94),
Because prescription adversely affects creditors, prescription may be suspended in favor of creditors who cannot enforce their claims. Suspension of prescription constitutes a temporary halt to its running. One doctrinal source aptly describes suspension as a period of time in which prescription slumbers. G. Baudier-Lacantinerie & A. Tissier, supra, No. 415, at 221-22. Prescription is suspended for as long as the cause of suspension continues. After the cause for the suspension ends, the prescriptive time begins running and the "time which precede[d] the suspension is added to the time which follows it to compose the necessary period; only the period of the suspension is deducted." Id. At the root of the principle of suspension is the recognition that a creditor should not lose his legal claim during a period when enforcement of the claim is prevented. Id., Nos. 368, 389, at 193, 207-08.
In contrast to suspension, interruption not only stops the running of prescription, it "annuls the commenced prescription so that after the interruption ceases, a new prescription must commence." Id., No. 415, at 221. Furthermore, unlike suspension which requires no act by the creditor, interruption results from an act by a creditor or a debtor's renunciation. La.Civ.Code arts. 3462-66.
In the case sub judice, it is clear that the one-year prescriptive period found in La.Civ. Code art. 3492 governs plaintiff's wrongful death action against Drs. Rabito, Breaux, and Krefft. La.Civ.Code art. 3492; Taylor v. Giddens,
Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. State ex rel. Bickman v. Dees,
Actions for medical malpractice against certain health care providers, such as the defendants herein, are governed by special laws, Part XXIII of Chapter 5, Miscellaneous Health Provisions of
La.R.S. 40:1299.47(B)(1)(a)(i) provides:
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section. (Emphasis added).
As we recognized in Everett v. Goldman,
As elaborated upon hereafter, we find that our determination comports with the rationale for suspension espoused by G. Baudier-Lacantinerie & A. Tissier, as well as Plainiol. In 1 M. Plainiol, TRAITE ELEMENTAIRE DE DROIT CIVIL, No. 2698 (12 th ed.1939), reprinted in TREATISE ON THE CIVIL LAW at 594 (La.St.L.Trans.1959), Plainiol explained that suspension of prescription "is a measure of equity, invented through regard for certain persons who are not in a position to interrupt prescription when it is running against them." In this statement Plainiol recognized that suspension exists as an equalizer to litigants who find themselves in those instances where interruption of prescription is not available. In the present case, by virtue of the legislative enactment calling for the necessity of a medical preview panel prior to submission of the case to the district court, the legislature by special provision for the inclusion of suspension excluded the applicability of interruption of prescription.
Keeping in mind Plainiol's explanation for the underlying need for the principle of suspension, it is evident that the Louisiana Medical Malpractice Act took cognizance of the need to suspend prescription and fully protects plaintiffs who would otherwise suffer the detrimental effect of liberative prescription. Because the Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider *1231 prior to panel review, the act specifies that the filing of a request for review before a panel suspends prescription.
We further find that our ruling also serves the judicial system by eliminating an advantage which Hernandez granted to those litigants who failed to follow the proper procedural sequence in medical malpractice litigation. As applied by Hernandez, those litigants who did not first submit their claim to a medical malpractice review panel as provided in
DECREE
We find that although the plaintiff's claim was suspended from August 19, 1992, until November 12, 1996, her action for wrongful death was clearly prescribed by February 3, 1997. Therefore, we reverse the lower courts' holdings and it is ordered, adjudged and decreed that the wrongful death action of Diana LeBreton against Drs. Felix O. Rabito, Patrick C. Breaux, and Thomas A. Krefft is dismissed with prejudice.
REVERSED AND RENDERED.
LEMMON, J., concurs and assigns reasons.
CALOGERO, C.J., dissents and assigns reasons.
LEMMON, Justice, concurring.
I agree with the result and with much of the reasoning in the opinion by the majority, but would prefer to rest the result on the basis that the prescriptive period for instituting a medical malpractice action is inapplicable once a timely claim has been filed for a medical review panel and the panel has rendered a decision.
After a medical malpractice victim asserts a cause of action against a qualified health care provider under
*1232 CALOGERO, Chief Justice, dissenting.
The majority concludes that a medical malpractice plaintiff cannot simultaneously take advantage of an interruption of prescription, caused by the filing of suit in a court of competent jurisdiction under Civil Code article 3462, and a suspension of prescription, caused by the subsequent filing of a request for review of a medical malpractice claim before a medical review panel under
Although the majority expressly recognizes the long-standing rule of statutory construction that "where two statutes deal with the same subject matter, they should be harmonized if possible ....," slip op. at 1229, the majority ignores the fact that the two provisions at issue can be harmonized and that, because no conflict between the provisions exists, the court need not apply one provision to the exclusion of the other.
I find no conflict at all between the provisions at issue (Civil Code article 3462 and
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
LA. CIV. CODE ANN. art. 9 (West 1993) (emphasis added). In applying this rule, I note that neither Civil Code article 3462, which provides for the interruption of prescription, nor
Under Civil Code article 3462, prescription is interrupted by the filing of a suit in a court of competent jurisdiction and venuea simple straightforward rule. Thus, because plaintiff initially filed suit on August 18, 1992 in a court of competent jurisdiction and venue within the one-year prescriptive period, as the majority concedes, prescription was interrupted as a matter of law on that date and simple. Thus, the majority need nothave engaged in a furprovisions ther search for legislative intent as to whether prescription should be interrupted even though the suit was filed prior to the claim's being reviewed by the medical review panel.
Likewise, under
Usually, after prescription has been interwritten under Civil Code article 3462, the *1233 prescriptive period begins to run anew from the date of a judgment dismissing the suit without prejudice. However, in the instant case, prescription could not have begun to run anew from the July 20, 1993 judgment that dismissed plaintiff's suit without prejudice for prematurity because a suspension of prescription was in effect at that time pursuant to
As further support for its conclusion that the plaintiff cannot simultaneously take advantage of the interruption of prescription pursuant to Civil Code article 3462 and the suspension of prescription pursuant to
For the reasons given above, I respectfully dissent.
NOTES
Notes
[*] Kimball, J., not on panel. Rule IV, Part 2, Section 3.
[2] After being removed from mechanical respiration, Mr. LeBreton was able to breathe on his own.
[3] Drs. Rabito and Breaux filed their exception of prescription on March 26, 1997; Dr. Krefft filed his exception of prescription on April 10, 1997.
[4] Theoretically this may be so. However, as noted by Joyce M. Cossich, Comment, The Suspension and Commencement of the Running of Liberative Prescription, 34 Loyola Law Review 341, 343, 345, 371 (1988), this latter reason may no longer be true in all matters. Undiscovered injuries due to legal and medical malpractice and latent or slowly progressive disease as a result of wrongful exposure to hazardous substances or occupational accident are but two examples which challenge this policy reason.
[5] We save for another day the question of whether the medical malpractice victim gets any period of time that remained unused at the time of the filing of the request for the medical review panel when the ninety-day period of suspension after the decision of the medical review panel is completed. That question is not presently before us.
[6] Plaintiff has conceded that she can only defeat defendants' peremptory exception of prescription if she can simultaneously take advantage of interruption and suspension of prescription.
[7] As regards the non-qualified health care provider and cases not involving medical malpractice, La.Civ.Code art. 3462, the general provision, provides for interruption of prescription.
[1] The Medical Malpractice Act contemplates one procedure with specific time delays between the required steps of the request for a medical review panel (which suspends prescription), the petition to the district court after the panel decision, and the petitions for appeal to the court of appeal and for certiorari to this court. The scheme does not contemplate an additional interruption of prescription by an improperly filed suit in district court which is immediately subject to dismissal on prematurity.
[1] I also take issue with the majority's conclusion that