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Johnson v. City of Bossier City8/22/2001
it.
Under the holding of LeBreton, the premature filing of a lawsuit for medical malpractice, prior to the request for a medical review panel, does not interrupt prescription on a medical malpractice claim. In the instant case, the Johnson's request for a medical review panel was not filed until June 20, 1997, well more than a year after the injury that occurred on August 8, 1995. Thus, applying the LeBreton rationale to the facts of the instant case requires the granting of the exception of prescription. Johnson conceded that under any reading of LeBreton, "this court is constrained to grant the exception of prescription." At the same time, she asserts that to grant the exception of prescription would result in manifest injustice because we would be retrospectively applying the decision in LeBreton in a manner which would divest her of a vested right. She argues that she initially filed her suit for damages timely, that the defendant filed an exception of prematurity to force a medical review panel, and that during the hiatus between the request for a medical review panel and the panel's decision, the supreme court decided LeBreton. Thus, to "retroactively" apply the LeBreton decision would arguably divest Johnson of her pre-existing cause of action.
However, the LeBreton decision does not change the law, but merely interprets the law. Because the decision simply declares what the law means, and has always meant, there is no change in or retroactive application of the law. Furthermore, any question concerning the equities of applying LeBreton is answered by LeBreton itself; the supreme court, while overruling Hernandez, supra, applied its decision in that case to the plaintiff therein and dismissed her action with prejudice.
CONCLUSION
For the reasons set forth above, the judgment is affirmed at appellant's costs.
AFFIRMED.
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