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Cacioppo v. Alton Ochsner Foundation Hospital12/26/2001
defendants Ochsner and Dr. Mills had a professional duty to protect the public from the unlicensed practice of medicine, and an affirmative duty to disclose the fact that none of the physicians who operated on Frank Jr. were licensed to practice in Louisiana. Plaintiffs contend that the statements by the Ochsner defendants in the medical review panel submission state that Dr. LeBlanc was board certified, and statements made by the physicians in their depositions did nothing to discharge this duty and prevented the plaintiffs from availing themselves of their causes of action.
In response, the defendants argue that plaintiffs knew as of June 1992 that Dr. LeBlanc, rather than Dr. Mills, performed the surgery because this information was contained in the medical review panel submission. Further, they argue that in 1997, plaintiffs learned Dr. LeBlanc was not licensed. Defendants conclude that by 1997 plaintiffs knew all the facts that now form the basis of their claims asserted against the defendants in December 2000.
Plaintiffs claims against the doctors are of fraud and battery, thus they are subject to the one year prescription period for delictual actions. C.C.art. 3492. The courts have recognized the harsh consequences resulting from the strict interpretation of prescription statutes and have adopted the doctrine of contra non valentum as a jurisprudential exception to prescription. Under this doctrine, prescription does not begin to run until a plaintiff either knew or should have known of a cause of action, regardless of how much time has passed between the wrongful conduct and the gaining of knowledge, Bergeron v. Pan American Assur. Co., 98-2421 (La. App. 4 4/7/99), 731 So.2d 1037. Contra non valentum applies when the defendant prevents the plaintiff from bringing suit or when the plaintiff does not know nor reasonably should have known of the cause of action. Id.
Plaintiffs claim that the defendants' actions of hiding the fact that none of the physicians who performed the surgery were licensed in Louisiana prohibited them from discovering that they had a cause of action. We disagree. The medical review panel submission, which was made part of the appellate record, states that Dr. LeBlanc, rather than Dr. Mills, performed the surgery. In his deposition taken on March 29, 1996, Dr. Mills acknowledged that the only knowledge he had of the surgery came from Dr. LeBlanc. In the original legal malpractice petition, plaintiffs allege that in 1997 Frank Sr. obtained written documentation from the Louisiana Board of Medical Examiners, which stated that LeBlanc has never been licensed to practice medicine in Louisiana. Frank Sr. was able to obtain this information on his own. The Ochsner defendants did nothing to prevent plaintiffs from discovering that Drs. Eskind and Busby were not licensed at the time of the surgery.
Applying the doctrine of contra non valentum to the facts before us, prescription for the fraud and battery claims ran in 1998, one year after it was discovered that Dr. LeBlanc was not licensed. The Oschner defendants were not added to the lawsuit until December 26, 2000 at which time plaintiffs' cause of action against them for fraud and battery had already prescribed.
In his Reasons for Judgment, the trial judge stated he was reluctant to grant the Exception of Prescription because the Ochsner defendants were in effect "getting off." We too are reluctant to affirm the exception, however, we find no law which supports a reversal.
For the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear his own costs.
AFFIRMED
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