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Bailey v. Khoury1/20/2005
did not believe in abortion, and that her pregnancy was "rough" because she was sick all the time and depressed.
As correctly stated by the majority, determination of when prescription commences under the discovery rule depends on (1) the date on which the plaintiff gained actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort, and (2) the date on which the tortious act actually produces damages. Slip Op. at p. 24.
The majority ultimately finds that, in order to better serve "the twin goals of consistency and predictability," prescription on both the mother and Jada's separate causes of action should commence on the same date. However, in so doing, the majority ignores the clear statutory and case law on prescription. See La. R.S. 9:5628; Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502; Branch v. WillisKnighton Medical Center, 92-3086 (La. 4/28/94), 636 So. 2d 211, 212; Harvey v. Dixie Graphics, Inc., 593 So. 2d 351, 354 (La. 1992). Further, the majority's holding that the defendants failed to prove 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" diminishes and trivializes the actual damages suffered by the mother from the time she was informed that, as the result of information obtained from an ultrasound, her baby definitely would suffer birth defects. The fact that she would suffer further damages after the child was born does not delay the running of prescription. Harvey, supra at 354 ("Thus, in cases in which a plaintiff has suffered some but not all of his damages, prescription runs from the date on which he first suffered actual and appreciable damage, even though he may thereafter come to a more precise realization of the damages he has already incurred or incur further damage as a result of the completed tortious act.")
In this case, after the child was born, Ms. Bailey still had over seven months to file her tort claim. Thus, instead of making exceptions in cases of pre-natal injuries discovered prior to birth, we should, as always, apply the existing law to the facts of the case. Under that law, Ms. Bailey's claim has clearly prescribed.
For the foregoing reasons, I respectfully concur in part and dissent in part.
Knoll, Justice, concurring
Although I agree with the majority that the child's cause of action has not prescribed and with its interpretation of La. Civ. Code art. 26 as applying only when the application of the legal fiction of natural personality inures to the benefit of the child as well as its holding on the mother's claim, I additionally concur to comment upon Wartelle v. Women's and Children's Hospital, Inc., 97-0744 (La. 12/2/97), 704 So.2d 778, cited in the majority opinion, a decision that was wrongfully decided in my view.
According to our civilian tradition and as noted by the majority opinion, the legal fiction of natural personality should only attach when such application inures to the benefit of the unborn child or for the preservation of the child's interest. Thus, an unborn child should not be treated as having the legal personality of a minor unless such treatment benefits the interests of the child. As the majority opinion correctly finds, because "applying the 'legal fiction' to hold that prescription commenced at some point prior to the child's birth when the mother became aware of the existence of its birth defects would not inure either to the benefit of the child or the preservation of its interests," prescription for an action arising out of a tort should commence when the child is born.
With the und
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