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Ginn v. Woman's Hospital Foundation9/22/2000
the Act made no mention of claims arising from defects in blood, and the Act was not amended to encompass such claims until August 5, 1976. Thus, plaintiff contends, this case does not fall within the purview of the Act, and plaintiff's cause of action for damages against the purveyor of the blood is not a claim which must be submitted to a review panel for consideration as a "covered claim" under the Act. We agree.
Defendant's interpretation of section (F) rests upon the assumption that the 1976 amendments apply retroactively to September 1, 1975, the effective date of the original Act. However, we find this application to be in direct contravention of the August 5, 1976, effective date of the amendments specifically assigned by the legislature. Thus, we are not persuaded by this argument.
When plaintiff's alleged injury occurred, she acquired a cause of action in strict tort liability under Civil Code article 2315, which is a vested property right protected by the guarantee of due process. Faucheaux v. Alton Ochsner Medical Foundation Hospital and Clinic, 470 So. 2d 878, 878-879; (La. 1985). Legislation enacted after the acquisition of such a vested property right, therefore, cannot be retroactively applied so as to divest plaintiff of her cause of action because such a retroactive application would contravene the due process guaranties. Terrebonne v. South Lafourche Tidal Control, 445 So. 2d 1221, 1224-1225 (La. 1984); Faucheaux, 470 So. 2d at 879 (La. 1985). Additionally, even interpretive legislation cannot operate to disturb already vested rights. The Legislature cannot retroactively affect, under the guise of interpretive legislation, substantive rights vested under earlier unambiguous legislation. See Gulf Oil Corp. v. State Mineral Board, 317 So. 2d 576 (La. 1974).
Noting that the blood transfusions allegedly contaminated with hepatitis C were received by plaintiff prior to the effective date of the amendment, plaintiff contends that this case does not fall under the purview of the Act and relies upon Branch v. Willis-Knighton Medical Center, 636 So. 2d 211 (La. 1994), a case she sets forth as "factually indistinguishable" from the case at hand, in support of her position.
In Branch, the Supreme Court also considered a claim arising out of a blood transfusion administered prior to the effective date of the 1976 amendments to the Medical Malpractice Act. As in the case now before us, at the time the transfusion at issue in Branch was performed, the original version of the Act (as enacted in 1975) contained no reference to defective blood transfused into a patient. The issue in Branch was whether a strict liability action arising out of conduct not expressly covered by the then applicable definition of malpractice would be governed by the time periods for filing limitation set forth in LSA-R.S. 9:5628. Construing the statutes in reference to each other, the Supreme Court found no indication that the legislature intended in 1975 to embrace strict liability claims within the statutory framework enacted to govern malpractice cases. See Branch v. Willis-Knighton Medical Center, 636 So. 2d at 214; Boutte v. Jefferson Parish Hospital Service District No. 1, 99-2402, pp. 6-7 (La. 4/11/00), ___ So. 2d ___, ___.
Applying the reasoning set forth in the above jurisprudence, we likewise find that the law prior to the amendment of LSA-R.S. 40:1299.41, effective August 5, 1976, permits plaintiff herein to assert a strict liability claim for damages allegedly sustained as a result of blood transfusions prior to the date of such legislation. See Seal v. St. Tammany Parish Hospital Service District No. 1 D/B/A St. Tammany Parish Hospital, 2000-1489, (La. 6-30-00), __
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