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Bailey v. Khoury1/20/2005
s filed less than a year from the date of the child's birth, we affirm the court of appeal judgment denying defendants' peremptory exceptions of prescription.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Ginger Bailey, a psychiatric patient with a long history of treatment and hospitalization for bipolar disorder, had been treated with various prescription medications over the years. From the date of her diagnosis sometime around 1991 until 1997, Ms. Bailey was treated by various physicians and mental health facilities throughout the greater New Orleans area. During that entire period, during which Ms. Bailey had two children, she was taking various types of drugs to treat her symptoms, which included hallucinations, paranoia and depression. Neither of her two eldest children suffered any adverse effects arising from her ingestion of the various medications.
In March 1997, Dr. Robert Ancira at Transitional Hospital Corp. of New Orleans ("THC") prescribed Depakote, which is "one of the most widely prescribed anti-seizure drugs," primarily used to treat epilepsy, but also used to treat bipolar disorder. When Dr. Gregory Khoury at Jo Ellen Smith Psychiatric Center later became Ms. Bailey's treating physician, he continued to prescribe Depakote. Ms. Bailey purchased her prescription drug, Depakote, from Walgreen's Louisiana Co., Inc. and Eckerd Corporation. Depakote "has been linked to birth defects and lower IQs among children exposed to it in the womb," with the most common birth defect being spina bifida. Despite the fact that she was of child-bearing age, Ms. Bailey claims that none of the defendant physicians or pharmacies warned her of the dangers of birth defects arising from the use of Depakote during pregnancy. Ms. Bailey further claims that she had never been told during her years of treatment that any of the drugs she was taking to treat her symptoms could cause birth defects.
Several months after she first started taking Depakote, in late July or early August 1997, Ms. Bailey learned that she was pregnant with her third child. At that time, Ms. Bailey was advised by a nurse at the New Orleans Mental Health Center to discontinue all medications and to contact an obstetrician. The pregnancy was confirmed by an obstetrician, Dr. Wayne Grundmeyer, who advised Ms. Bailey on September 25, 1997, of the risk that her child would suffer birth defects caused by the drugs used during her pregnancy, particularly her use of Depakote. Dr. Grundmeyer's fears were confirmed when an ultrasound performed by Dr. Thomas Albert on October 25, 1997, revealed that Ms. Bailey's unborn child had developed birth defects (specifically, a neural tube defect ) and that the child would probably suffer a number of complications. On November 28, 1997, Ms. Bailey was informed that her unborn child had developed birth defects and that the child's condition had probably been caused by valproic acid exposure resulting from her use of Depakote. Ms. Bailey was further advised that she should have been counseled against becoming pregnant while taking that medication.
On March 20, 1998, Jada Nacaya Bailey was delivered by caesarian section. At birth, Jada suffered from a number of defects, including Cornelia de lange syndrome, spina bifida, and hydrocephalus, with accompanying features and symptomology, including paralysis from the waist down and loss of muscle control. Almost a year after Jada's birth, on March 17, 1999, Ms. Bailey, individually and in her representative capacity on behalf of Jada, filed a medical malpractice action against Dr. Khoury, Jo Ellen Smith Psychiatric Center, Dr. Ancira, and THC, alleging failure to warn of known side effects of Depakote, as well as other acts of m
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