This malpractice action has been before this Court previously in In re Medical Review Panel of Conerly, 02-485 (La.App. 5 Cir. 11/13/02), 833 So.2d 384. Plaintiff, Keisha Conerly, brought the action after being diagnosed with hepatitis C virus. Conerly alleged she contracted the virus from two blood transfusions she received as an infant at Ochsner Foundation Hospital in 1979. In that opinion we reversed the trial court's judgment granting a defense exception of prescription as to plaintiff's claims of strict liability in accordance with Williams v. Jackson Parish Hospital, 00-3170 (La. 10/16/01), 798 So.2d 921. Defendant sought review of that opinion in the Louisiana Supreme Court, and the matter has been remanded to this Court for re-consideration in light of the Supreme Court's new pronouncement in David v. Our Lady of the Lake, 02-2675 (La. 7/02/03), 849 So.2d 38.

In our prior opinion, we pretermitted review of plaintiff's constitutional claim. Plaintiff asserted that La.R.S. 9:5628 is unconstitutional because of the discrepancy between the treatment of victims of public malpractitioners and the treatment of victims of private malpractitioners is a violation of the equal protection guaranty of both the United States and the Louisiana Constitutions. We now consider this argument and find it unpersuasive. We find it is clear from Williams, which found the statute is neutral on its face because it is placed as a Title 9 Civil Code ancillary and applies regardless of a provider's status as qualified or unqualified medical provider under the Medical Malpractice Act, and from David, which applied the statute to an unqualified medical provider that this statute is constitutional. Accordingly, we affirm the trial court's ruling that La.R.S. 9:5628 is constitutional.