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Bailey v. Khoury1/20/2005
natural personality on unborn children subsequently born alive. Many of those cases have relied upon previous decisions establishing a general rule for when a cause of action accrues, which typically occurs when all of the factual elements of the tort are present. See Chow, supra. For example, in Wilson v. Kaiser Foundation Hospital, 141 Cal. App. 3d 891, 190 Cal. Rptr. 649 (1983), the court found that, under such a provision, live birth is a "condition precedent" to accrual of legally cognizable rights. Id. Applying the same principle, the court in Simmons v. Weisenthal, 29 Pa. D. & C. 2d 54 (Pa. Com. Pl. 1962), found that the statute of limitations does not commence in cases involving injuries to unborn children until the date of the child's birth. In so holding, the court stated as follows:
It is apparent that liability for a prenatal injury attaches at the earliest possible time upon birth of the infant, whether recovery is allowed for a live or a still birth. If liability does not attach until birth, whether alive or still, there is what has been termed "an implied condition" that the child be born. We do not see, therefore, how the statute of limitations can possibly begin to run until fulfillment of the implied condition that the child be born, at which time liability will attach. Until there is liability there can be no right upon which an action could be brought, and until a right exists the statute cannot run.
Id. at 55-56. See also Cosgrove v. Merrell Dow Pharmaceuticals, Inc., 117 Idaho 470, 788 P. 2d 1293 (1990).
Under general Louisiana law, a cause of action accrues when a party has the right to sue. Falgout v. Dealers Truck Equipment Co., 1998-3150, p. 12 (La.10/19/99), 748 So.2d 399, 407. Because La. Civ. Code art. 26 imposes an "implied condition" of live birth on an unborn child's right to be considered a "natural person," we find that a cause of action for damages arising from prenatal injuries does not accrue until the child's live birth. This is especially true since, under the provisions of La. Civ. Code art. 26, tortfeasors have no liability for prenatal damages unless and until the child is born alive. Because the cause of action does not accrue until that date, prescription does not commence until that date. Accordingly, the lower courts properly denied the defendants' peremptory exceptions of prescription regarding Ms. Bailey's claim filed on behalf of her child, Jada.
Ms. Bailey's individual claim
In oral argument, defendants took the position that, even if prescription on the claims filed by Ms. Bailey on behalf of Jada did not commence until her birth, prescription on Ms. Bailey's individual claim commenced on the date prior to Jada's birth when Ms. Bailey learned that her unborn child had developed birth defects. This argument is based on the defendants' position that Ms. Bailey had actual or constructive knowledge of the tortious act, the damage and the causal relation between the tortious act and the damage on that day. See Lecompte, 97-1878, 723 So. 2d 474. According to defendants, Ms. Bailey's knowledge of both the existence of the birth defects and the suspected cause of the birth defects, coupled with her testimony that she was upset when she gained that knowledge, is sufficient to commence prescription under the discovery rule governing prescription in medical malpractice claims established by La. Rev. Stat. 9:5628.
In support of their argument, defendants attached to their memoranda in support of their exceptions Ms. Bailey's June 12, 2001 deposition (or portions thereof). In that deposition, Ms. Bailey admitted that, immediately after her pregnancy was confirmed, she was informed of the risks of bir
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