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Coleman v. Acromed Corp.12/15/1999
This appeal arises from the trial court's granting of a peremptory exception of prescription filed by Defendants, Dr. Warren D. Long and Doctors' Hospital of Shreveport, Incorporated ("Hospital"), dismissing the claims of Plaintiffs, Stephen and Glenda Coleman, against the Hospital and Dr. Long. For the reasons stated herein, we reverse.
FACTS AND PROCEDURAL HISTORY
Plaintiff Stephen Coleman underwent separate cervical and lumbar surgeries at the Hospital on June 25, 1991, and June 17, 1992, respectively. The surgeries were performed by Dr. Long. On May 25, 1995, prior to the filing of the original petition against Acromed Corporation ("Acromed") and Dr. Arthur D. Steffee, Plaintiffs filed an "amended complaint" with the Louisiana Patients' Compensation Fund requesting a medical review panel to review the conduct of the Hospital and Dr. Long in relation to Mr. Coleman's surgeries. On June 12, 1995, Plaintiffs filed suit against Acromed and Dr. Steffee in the nature of a products liability suit. Specifically, Plaintiffs alleged they suffered harm as the result of negligence on the part of Acromed for improper manufacture of surgical implements and on the part of Dr. Steffee in designing and marketing the implements which were placed in Mr. Coleman's body during the two surgeries.
The medical review panel rendered an opinion favorable to the Hospital and Dr. Long on September 17, 1997. Thereafter, on June 8, 1998, Plaintiffs filed an amended and supplemental petition naming the Hospital and Dr. Long as defendants in the original suit. The Hospital filed a peremptory exception of prescription alleging Plaintiffs' claim had prescribed after 90 days from receipt by Plaintiffs of the medical review panel opinion, or no later than December 19, 1997, as provided in La. R.S. 40:1299.47(A)(2)(a), which reads as follows:
The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until 90 days following notification, by certified mail, . . . to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part . . .. (Emphasis ours.)
The trial court granted the exception and dismissed Plaintiffs' suit as to the Hospital and Dr. Long.
DISCUSSION
Plaintiffs contend that the trial court committed legal error in finding that their suit against Acromed and Dr. Steffee did not interrupt prescription as to their action against the Hospital and Dr. Long and in dismissing their suit as prescribed under the application of La. R.S. 40:1299.47. Plaintiffs argue that a timely-filed suit pending against one solidary obligor continues the interruption of prescription as to all purported solidary obligors, citing White v. West Carroll Hospital, Inc., 613 So. 2d 150 (La. 1992); Hebert v. Doctors Memorial Hospital, 486 So. 2d 717 (La. 1986); and Billiot v. American Hospital Supply Corporation, 721 F. 2d 512 (5th Cir. 1983). In matters involving a question of law, we review the record de novo. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-C-0690 (La. 7/5/94), 640 So. 2d 237; Conagra Poultry Co. v. Collingsworth, 30,155 (La. App. 2d Cir. 1/21/98), 705 So. 2d 1280.
In general, the burden of proving that a suit has prescribed rests with the party pleading prescription. Wilkes v. Carroll, 30,066 (La. App. 2d Cir. 12/10/97), 704 So. 2d 938; Burdeaux v. Cline, 626 So. 2d 1205 (La. App. 2d Cir. 1993); Bishop v. Simonton, 615 So. 2d 8 (La. App. 2d Cir. 1993), writ denied, 617 So. 2d 908 (La. 1993). In those instances, however, when the plaintiff's pe
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