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Adams v. Ochsner Clinic of Baton Rouge11/3/2000
ll motive or intent, Dr. Hannis' failure to disclose does not constitute an "ill practice" within the meaning of the third category of contra non valentem. We have been unable to find, nor have we been referred to, any medical malpractice case wherein a physician's action was determined to be an "ill practice" even though the action was taken without an ill motive or intent. Mr. and Mrs. Adams refer to us to jurisprudence interpreting the term "ill practices" as it is used in La. C.C.P. art. 2004, which allows for annulment of a final judgment "obtained by fraud or ill practices." It is true that cases interpreting La. C.C.P. art. 2004 have concluded that an intentional act need not be present to find an "ill practice," or that an "ill practice" can occur "innocently." See Webb v. Polk Chevrolet, Inc., 451 So.2d 139, 142 (La. App. 1 Cir. 1984), reversed, 458 So.2d 469 (La. 1984); see also State, Department of Social Services, OFS v. Jones, 94-2605 (La. App. 1 Cir. 10/6/95), 671 So.2d 404, 407. However, without precedent or a compelling basis for doing so, we decline to expand the third category of contra non valentem by jurisprudential analogy to an unrelated area of law. The supreme court has given no indication that such an expansion is warranted. Further, removing the ill motive or intent requirement from a finding of "ill practices" would substantially lower the standard for proving an "ill practice" below that required to prove "concealment," "misrepresentation," or "fraud," the other types of action that trigger application of the third category of contra non valentem. We see no reason to expand the third category of contra non valentem in this manner.
DECREE
For the foregoing reasons, the judgment of the trial court, granting the exception of prescription filed by Dr. Hannis and Ochsner Clinic, is AFFIRMED. Costs of the appeal are assessed to Mr. and Mrs. Adams.
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