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Kirby v. Field9/23/2005
ich they may want to reconsider.
Downing, J., concurs and assigns reasons
I concur in the result for reasons in addition to those offered by Chief Judge Carter. La. R.S. 9:5628A provides in pertinent part that "in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect." Here, the majority points out that the last possible day for the alleged act of malpractice was December 20, 1997. Kirby filed his action against Dr. Field on January 22, 2004, well beyond the three-year period of repose. Accordingly, the trial court was correct in sustaining the peremptory exception of prescription.
The primary opinion goes into a lengthy discussion of the doctrine of contra non valentem which seems misplaced in light of the three year period of repose imposed by La. R.S. 9:5628A. As the Supreme Court explained in In re Medical Review Panel for Claim of Moses, 00-2643, p. 9 (La. 5/25/01), 788 So.2d 1173, 1179, regarding the three-year period of repose, " ranslated, this means that `the contra non valentem type of exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the alleged injury causing act, omission or neglect.' (Citation omitted.)" I disagree with the primary opinion to the extent that it may suggest otherwise.
In all other respects, I agree with the report, particularly the inspired inclusion of footnote 8.
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