Jeter v. Shamblin12/6/2000
Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.
BROWN, J., concurs. Like Crier, supra, this case does not involve an insidious disease that does not develop until many years after the causative act.
In this medical malpractice action, Bobbie F. Jeter ("Jeter") appeals the judgment of the trial court in favor of Dr. James R. Shamblin ("Shamblin"), rejecting her challenge of the constitutionality of La. R.S. 9:5628. Finding no error below, we affirm.
Facts
This appeal arises from medical treatment Jeter received from Shamblin in the 1980's, and the general facts from which this appeal arises were discussed previously by this court and are adopted herein. See, Jeter v. Shamblin, 32,618 (La. App. 2d Cir. 02/01/00), 750 So. 2d 521. In her earlier appeal, Jeter also raised the issue of the constitutionality of La. R.S. 9:5628; however, in Jeter, supra, we determined that Jeter had neither alleged the unconstitutionality of La. R.S. 9:5628 in a petition before the trial court, nor did she notify the Louisiana Attorney General of her challenge as required by La. R.S. 13:4448. Id. at 526. Consequently, on that limited issue, we remanded to the trial court, allowing Jeter to specially plead the unconstitutionality of the statute and to give the requisite notice to the attorney general. Id. Upon remand to the trial court, Jeter raised the unconstitutionality issue in her Motion to Declare Section 5628 Unconstitutional. The trial court again rejected Jeter's challenge to La. R.S. 9:5628, denying her motion in a judgment rendered March 3, 2000. This appeal ensued.
Discussion
Initially, we note that upon remand to the trial court, the record reflects that Jeter complied with the dictates of La. R.S. 13:4448, and the Louisiana Attorney General was served with notice of the proceedings at the trial court challenging the constitutionality of this Louisiana statute. The Clerk of this court also notified, by mail, the Louisiana Attorney General of this appeal. Thus, this appeal is ripe for our review.
Jeter again contends that La. R.S. 9:5628 violates the Equal Protection Clause of the Louisiana Constitution of 1974 (La. Const. art. I of 1974, § 3). Specifically, she argues that La. R.S. 9:5628 makes an arbitrary distinction between victims of per se negligence at the hands of healthcare professionals, and victims of per se negligence at the hands of persons other than healthcare professionals.
La. Const. art. I of 1974, § 3 provides as follows: No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. . . .
When a statute makes distinctions among persons based upon the enumerated classes (i.e., birth, age, sex, culture, physical condition, or political ideas or affiliations), the advocate of the classification has the burden of proving that the classification has a reasonable basis. Crier v. Whitecloud, 496 So. 2d 305, 310 (La. 1986); Whitnell v. Silverman, 95-0112 (La. 12/06/96), 686 So. 2d 23, 27. However, where a statute classifies individuals on a basis other than the enumerated classes, the statute will be upheld unless the member of the allegedly disadvantaged class shows that it does not suitably further any appropriate state interest. Crier, supra; Whitnell, supra.
Additionally, we note that the legislature has wide discretion in enacting laws which affect some class
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