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In re Medical Review Panel of Conerly11/13/2002
REVERSED IN PART AND REMANDED
This is an action for medical malpractice involving two blood transfusions in September and October 1979 that plaintiff received as an infant at Ochsner Foundation Hospital. Approximately eighteen years later plaintiff was diagnosed with hepatitis C virus, and was told by doctors that it was likely due to the blood transfused. Plaintiff filed a claim with the Patients' Compensation Review Board in 1997, within one year from the discovery of the condition. Ochsner filed a petition to allot a number to the case, and urged an exception of prescription based on the prescriptive period for medical malpractice actions contained within LSA-R.S. 9:5628. The trial court granted the exception and dismissed plaintiff's claim. Plaintiff filed a motion for new trial, or in the alternative moved for a hearing on the constitutionality of LSA- R.S. 9:5628. Both motions were denied, and plaintiff appealed to this court.
In an unpublished opinion this court, relying on Boutte v. Jefferson Parish Hospital Service Dist. No. 1, 99-2402 (La. 4/11/00), 759 So.2d 45, held that plaintiff's motion raising the constitutional issue by way of a written motion was sufficient to satisfy the requirement that unconstitutionality be specifically pleaded. The Boutte court noted that a successful challenge to the constitutionality of LSA-R.S. 9:5628 would eliminate the grounds for the exception of prescription. Given that finding, the Boutte court remanded the matter for consideration of the constitutionality claim.
In the instant matter, this court followed Boutte. However, because plaintiff failed to serve the Attorney General as required, we remanded the matter to the trial court and ordered that plaintiff be given fifteen days to accomplish the service, before a hearing on the constitutionality.
After remand to the trial court, the plaintiff filed a motion for declaratory judgment in which she reasserted the claim of unconstitutionality and requested service on the Attorney General. However, before the matter was considered, plaintiff filed a "first supplemental memorandum" in which she cited Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921. Plaintiff argued that Williams overruled Boutte and found that a plaintiff's action in strict products liability arising out of a defective blood transfusion in not within the scope of LSA-R.S. 9:5628. Thus, the action does not prescribe in three years from the date of the transfusion in cases where the harm from the transfusion is discovered beyond the three years. As to the constitutional issue, plaintiff argued that the discrepancy in the treatment of victims of public malpractitioners and the victims of private malpractitioners was a disparity of treatment in violation of the state constitutional guarantee of equal protection. After a hearing on the matter, the trial court rendered a judgment in which it denied plaintiff's motion to declare LSA-R.S. 9:5628 unconstitutional, granted the exception of prescription, and denied the motion for new trial. Plaintiff appeals.
In reasons for judgment, the trial court relied on Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992), in which the Louisiana Supreme Court held that strict liability for a defective bed was not covered under the Medical Malpractice Act. The Sewell court also noted that blood is one of the specifically enumerated potentially defective things that is covered by the act. Using that rational, the trial court found that an action for strict liability for tainted blood sounds in medical malpractice and it therefore prescribed according to the statute.
In deciding the issue, the trial court failed to consider the re
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