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Rajnowski v. St. Patrick Hospital of Lake Charles6/7/2000
. The wrongful death action that the Rajnowskis are now pursuing did not exist when the judgment in the medical malpractice action became final in 1990. The exception of res judicata was properly denied by the trial court. Exception of prescription.
Appellants urge this court to reverse the trial court's ruling that denied the exception of prescription. They contend that La.R.S. 9:5628 controls the wrongful death action. We disagree. That statute governs the time for filing medical malpractice actions. " wrongful death action is not a malpractice action." Taylor, 618 So.2d at 841.
Therefore, it is not controlled by the prescriptive period for medical malpractice actions. The reference to actions for death in LSA-R.S. 9:5628 applies solely to survival actions as they are derivative of the malpractice victim's action. Further, wrongful death actions are not dependent upon the victim having a viable malpractice action. The date of the malpractice victim's death determines when the prescriptive period commences running, as that is the date the claimants are injured. The date of the discovery of the malpractice by the victim or the claimants prior to the victim's death, is not consequential.
The determination that the prescriptive period for wrongful death actions arising from acts of medical malpractice are not within the scope of LSA-R.S. 9:5628, does not alter the affect that the Medical Malpractice Act, LSA- R.S. 40:1299.41 et seq, has on wrongful death actions. The actions continue to be governed and procedurally controlled by the provisions of the Act. Rather, because LSA-R.S. 9:5628 does not provide the prescriptive period for wrongful death actions, the commencement and running of its prescriptive period is controlled by the one year liberative period applicable to delictual actions, LSA-C.C. art. 3492, and the action is available to the certain beneficiaries named in LSA- C.C. art 2315.2 (formerly named in LSA-C.C. art. 2315). Id.
Therefore, the Rajnowski's wrongful death action which was filed within one year of Ricky's death was timely filed, and the trial court properly denied the exception of prescription.
For the foregoing reasons, the exception of res judicata as to Dr. Guidry and St. Paul was properly denied, and the exception of prescription as to Dr. Guidry, St. Paul, and St. Patricks was properly denied.
WRIT DENIED.
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