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Holmes v. Lee9/28/2001
Gloria Holmes appeals a judgment dismissing her tort action against Van Lee d/b/a Lee's City Drugs as prescribed. For the following reasons, we reverse.
FACTS
According to Ms. Holmes' petition, on September 3, 1998, she went to Lee's City Drugs to fill a prescription from her doctor. Instead of the medicine prescribed by the doctor, the pharmacy gave Ms. Holmes the drug Amitriptyline. Ms. Holmes' petition alleges that she did not discover this error for "over two months" and that the Amitriptyline severely aggravated her pre-existing condition and, among other things, caused her to suffer from memory loss, depression and erratic and bizarre behavior.
On September 2, 1999, Ms. Holmes' attorney mailed a request seeking to impanel a medical review panel. On October 5, 1999, Cheryl Jackson, malpractice insurance director with the Patient's Compensation Fund ("PCF"), wrote to Ms. Holmes' attorney and informed him that:
None of the defendants named in the petition have coverage in the Patients' Compensation Fund under the provisions of Louisiana Revised Statutes 40:1299.41 et seq.
Ms. Holmes filed suit against Lee on November 15, 1999. Lee responded with an exception of prescription supported by patient notes from the Bastrop Mental Health Clinic dated September 24, 1998, which state in part:
She brought w/ her a bottle of amytriptyline . . . Lee drug store called and apparently they have made a mistake giving her amytriptyline instead of [illegible] . . . .
Ms. Holmes countered that her filing of the complaint with the PCF on September 2, 1999 served to suspend prescription and that her petition was filed within the window provided by the Medical Malpractice Act.
On July 6, 2000, the trial court conducted a hearing on the exception. Lee testified that he learned in late September 1998 that the pharmacy had incorrectly filled Ms. Holmes' prescription with amytriptyline on September 23, 1998, and that his employee Virginia Johnson called Ms. Holmes and explained the error. Lee also testified that Ms. Holmes returned to the pharmacy on October 23, 1998 and that he correctly filled her prescriptions on that date. Virginia Johnson, a clerk at the drugstore, testified that she telephoned Ms. Holmes in September 1998 to explain the pharmacy's error and Lee's offer to pay Ms. Holmes' prescription co-pay from that point forward. Lee introduced a record of the medications he had dispensed to Ms. Holmes, and the record contains three entries from October 23, 1998. Lee also introduced a sales ticket from that date that refers to three prescription numbers and their prices.
The trial court granted Lee's exception of prescription and dismissed Ms. Holmes' lawsuit. Ms. Holmes now appeals.
DISCUSSION
At the outset, we note that pharmacists are not listed among those health care providers covered by the special medical malpractice prescription statute, La. R.S. 9:5628. As a delictual action, Ms. Holmes' lawsuit is subject to liberative prescription of one year from the day that injury or damage is sustained. La. C.C. art. 3492. Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiff's petition shows on its face that the prescriptive period has run, and the plaintiff relies upon a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Burdeaux v. Cline, 626 So. 2d 1205 (La. App. 2d Cir. 1993), writ denied, 93-3132 (La. 2/11/94), 634 So. 2d 833.
The evidence presented by the pharmacy, particularly the note from the health clinic, conclusiv
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