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Brown v. Our Lady of the Lake Regional Medical Center12/28/2001
Disposition: AFFIRMED.
Plaintiff-appellant, Charles Brown, individually and ostensibly on behalf of the estate of Mabel Brown, appeals a judgment dismissing as prescribed his wrongful death claim against defendant-appellee, Our Lady of the Lake Regional Medical Center (OLOL). For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2000, Charles Brown filed a petition for damages in district court. According to the allegations of that petition, on May 7, 1997, Charles Brown's 83-year-old mother, Mabel Brown, fell in her home, fracturing her left hip. She was admitted into OLOL and treated by defendants, Drs. Harold Voss, Joe Morgan, and Lawrence Messina. At some time during her hospital stay, Mabel's right hip was fractured. After receiving medical attention for her injuries, Mabel was discharged.
In their respective briefs, the parties assert that on either April 28 or May 1, 1998, Charles and Mabel Brown requested that a medical review panel be established to review their claims of medical malpractice against OLOL (as well as the physician-defendants). The record does not contain a copy of the complaint requesting a medical review panel. Thus, the date of initiation of the medical malpractice complaint cannot be established definitively. Mabel Brown died on March 15, 1999. On January 12, 2000, the medical review panel issued its opinion.
On April 15, 2000, OLOL filed a peremptory exception of prescription, challenging the wrongful death claim asserted by Charles Brown in his April 4, 2000 petition for damages. After hearing arguments, by judgment signed on August 14, 2000, the trial court dismissed Charles Brown's wrongful death claim against OLOL as prescribed. Charles Brown appeals.
DISCUSSION
Prescription statutes are intended to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period. Giroir v. South La. Medical Ctr., 475 So.2d 1040, 1045 (La. 1985). Ordinarily, the burden of proof is on the party pleading prescription; however, if on the face of the petition it appears prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Adams v. Ochsner Clinic of Baton Rouge, 99-2502, p. 3 (La. App. 1st Cir. 11/3/00), 771 So.2d 258, 260, writ denied, 2000-3159 (La. 1/12/01), 781 So.2d 558. Wrongful death actions are not within the scope of La. R.S. 9:5628, which governs the time plaintiffs have to assert medical malpractice claims. The prescriptive period for a wrongful death action is controlled by La. C.C. art. 3492, the one-year liberative period applicable to delictual actions. Taylor v. Giddens, 618 So.2d 834, 840-41 (La. 1993). Thus, on the face of his petition, Brown's wrongful death claim is prescribed, and the burden of proving its timeliness is his.
Although the applicable prescriptive period for wrongful death actions is the one-year period set forth in La. C.C. art. 3492, the Medical Malpractice Act (the Act) continues to govern and procedurally control wrongful death actions. Taylor, 618 So.2d at 841.
Charles Brown does not dispute that accrual of the one-year prescriptive period for wrongful death actions commenced on March 15, 1999, the day Mabel died. Instead, citing La. R.S. 40:1299.47A(2)(a) of the Act, he asserts that prescription was suspended when he filed his request for a medical review panel to review his allegations of malpractice.
Louisiana Revised Statute 40:1299.47A(2)(a) provides in relevant part:
The filing of the request for a review of a claim shall suspend the time within which
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