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Kirby v. Field9/23/2005
ndant's part, let alone evidence sufficient to establish a prima facie case of such conduct for purposes of invoking the benefit of the doctrine of contra non valentem. Finally, Mr. Kirby did not allege a continuing patient-physician relationship with Dr. Field after the procedure. Thus, his allegations are likewise insufficient to invoke the "continuing treatment" rule, a variant of the third category of contra non valentem, as articulated by the supreme court in Carter v. Haygood, 04-0646, pp. 12-16 (La. 1/19/05), 892 So.2d 1261, 1269-71. He similarly failed to offer any evidence of such a continuing relationship at the hearing of the exceptions. The properly-pleaded allegations of his petition alone are simply insufficient to establish the suspension or interruption of prescription under La. R.S. 9:5628. Thus, the issue of prescription must be decided based upon the uncontroverted facts properly alleged in his petition, and we need not address the issue of whether the third category of contra non valentem may operate to suspend the three-year prescriptive period of repose.
In this appeal, the parties seem to concede that the alleged act of malpractice occurred on September 25, 1997. At any rate, the last day of fall in 1997 was December 20, 1997. Even if we generously accept the date of the alleged malpractice as the last day of fall, the malpractice claim complaint was still instituted almost six years after the date of the alleged malpractice. This is well beyond both the one-year prescriptive period and the statutory three-year period of repose generally applicable to all claims of medical malpractice. Based upon the record before us, we must conclude that the malpractice claim is prescribed.
Mr. Kirby first sought to raise his challenge to the constitutionality of La. R.S. 9:5628 in a second memorandum submitted to the trial court on May 16, 2003, the day prior to the hearing. He did not set forth his challenge in any pleading, as long required by our jurisprudence. See Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 865. Further, the record does not show that the attorney general was notified by certified mail of Mr. Kirby's challenge, or served with his eleventh-hour memorandum, as required by La. R.S. 13:4448. Nevertheless, as the trial court permitted argument on the issue and implicitly rejected Mr. Kirby's challenge, and the attorney general has on previous occasions been afforded the opportunity to address substantially the same issue of the constitutionality of La. R.S. 9:5628, we will not vacate its judgment and remand the case for further proceedings on the constitutional issue. The issue has been extensively briefed by the opposing parties in this court, and we conclude a remand at this point would serve no useful purpose. Significantly, Mr. Kirby does not claim that he was not allowed a fair opportunity to present his constitutional challenge in the trial court.
Mr. Kirby's challenge to La. R.S. 9:5628 is limited to the claim that it is violative of his right to due process under the United States and Louisiana Constitutions. In his brief, Mr. Kirby relied upon the case of Walker v. Bossier Medical Center, 38,148 (La. App. 2nd Cir. 5/12/04), 873 So.2d 841, in which the second circuit court of appeal held that the statute was unconstitutional as violative of due process as applied to patients contracting diseases with latency periods of over three years. Any further reliance upon that opinion as authority, however, is misplaced. The opinion was vacated by the supreme court as being in conflict with a prior decision of the second circuit, and the case remanded for en banc consideration. Walker v. Bossier Medical Center, 04-1797 (La. 2/25/0
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