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Schulingkamp v. Ochsner Clinic3/13/2002
ruling to eliminate an "anachronistic benefit" of additional prescription to those who did not first submit their claim to a medical review panel.
In this case, as in LeBreton, there are two statutes dealing with essentially the same subject matter. Plaintiffs argue, pursuant to La. C.C. art. 3463, that prescription against Ochsner was interrupted for as long as the suit against the remaining obligors was pending. However, to follow 3463, as plaintiffs suggest, is to ignore to statute more specifically directed at the prescription issue in the context of Medical Malpractice Act, which states that plaintiff must first convene a medical review panel in order to stop the running of prescription. Based upon the reasoning of LeBreton, supra, we therefore find the controlling provision for the issue at hand to be contained in the Medical Malpractice Act.
In the case of Tuazon v. Eisenhardt, this Court held that where a plaintiffs' request for a medical review panel was filed more than one year after the alleged acts of malpractice, the plaintiffs bear the burden of proving that prescription was suspended. In this case, a review of the record shows that the plaintiffs have not carried the burden of proving the prescription was interrupted via the tolling doctrine of "contra non valentum." Accordingly, we find that the trial court did not err in finding that the plaintiffs' claim against Ochsner had prescribed.
AFFIRMED
CANNELLA, J., DISSENTING WITH REASONS.
I dissent from the majority opinion. In this medical malpractice case, while I understand the equitable, length of time considerations, I know of no case that has departed from the well-settled rule that suit against one solidary obligor interrupts prescription as to all solidary obligors.
Based on the partial record before us, it is impossible to determine with certainty whether the suit against Bauer, alleged to be a solidary obligor with Ochsner, is still pending. In my view, the prescription issue presented herein turns on whether that case is still pending. If so, then prescription against all solidary obligors, including Ochsner, remains interrupted. Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986). Accordingly, I dissent from the majority opinion affirming the trial court ruling which granted Ochsner's exception of prescription.
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