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Bailey v. Khoury1/20/2005
is court offered some general principles for determining the date when a tortious act actually produces damage in Harvey. The court found that the "damage suffered must at least be actual and appreciable in quality--that is, determinable and not merely speculative." 593 So. 2d at 354. This court has also held that damage is sufficient to commence the running of prescription"only when it has manifested itself with sufficient certainty to support accrual of a cause of action." Cole, 620 So.2d at 1156.
We find that the defendants failed to carry their burden of proving that any damages suffered by Ms. Bailey prior to Jada's birth manifested themselves with sufficient certainty to support accrual of a cause of action. Although Ms. Bailey was naturally upset when she learned that her unborn child had developed birth defects, the real issue is whether any damages Ms. Bailey suffered at that point in time qualify as "actual and appreciable" damages that are determinable, as opposed to speculative damages. Other than her simple statement that she was "messed up" and upset, Ms. Bailey's deposition is silent concerning the impact of learning that her child had birth defects. Thus, the defendants failed to carry their burden of proving that Ms. Bailey's individual cause of action accrued on the date she was told that her unborn child had birth defects.
Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987). Further, this court has rejected the idea that prescription principles should be used "to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage." Id. Adoption of the arguments presented by the defendants in this case would violate those principles, as well as the other principles discussed herein. Accordingly, we affirm the decision of the lower courts denying the defendants' peremptory exceptions of prescription relative to Ms. Bailey's individual claim, this in addition to our earlier determination in this opinion that the lower courts did not err in denying defendants' exception of prescription to Ms. Bailey's claim on behalf of Jada.
DECREE
The decisions of the lower courts' denying defendants' peremptory exceptions of prescription are affirmed, and the case is remanded to the district court.
AFFIRMED; REMANDED TO THE DISTRICT COURT.
VICTORY, J., concurring in part and dissenting in part
I concur with the result of the majority opinion holding that prescription on the child's claim does not begin to run until birth. As stated by the majority, La. Civ. Code art. 26 imposes an "implied condition" of live birth on an unborn child's right to be considered a natural person. Therefore, the child's cause of action for damages arising from prenatal injuries does not accrue until the child's live birth.
However, the same cannot be said for the mother's individual claim for damages resulting from this alleged malpractice. Unlike the child's claim, there is no "implied condition" that the baby be born alive in order for the mother to have a claim for damages for mental anguish and other damages suffered by the mother while the baby is in utero. According to Ms. Bailey's deposition, she was informed by at least November 28, 1997 that her baby had developed birth defects and that these birth defects were caused by the use of Depakote ingested early in her pregnancy. She further testified that as a result of this information, she was "messed up" and upset, that she considered having an abortion, despite the fact that she
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