Bailey v. Khoury1/20/2005
houry, 04-0620, 04-0647, 04-0684 (La. 5/7/04), 872 So. 2d 1073, 1074.
PRESCRIPTION IN MEDICAL MALPRACTICE CASES
Prescription in medical malpractice actions is governed by the provisions of La. Rev. Stat. 9:5628, which provides, in pertinent part, as follows:
A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, 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.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
This court has previously noted that La. Rev. Stat. 9:5628 sets forth more than one prescriptive period, because it "initally . . . coincides with La. Civ. Code art. 3492's basic one year prescriptive period for delictual actions, coupled with the 'discovery' exception of our jurisprudential doctrine of contra non valentem." Campo v. Correa, 01-2707, p. 8 (La. 6/21/02), 828 So. 2d 502, 508, quoting Hebert v. Doctors Memorial Hospital, 486 So. 2d 717, 723 (La. 1986).
Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bouterie v. Crane, 616 So.2d 657, 660 (La.1993). The burden of proof on the prescription issue lies with the party asserting it unless the plaintiff's claim is barred on its face, in which case the burden shifts to the plaintiff. Id. See also Campo, 01-2707 at p. 7, 828 So. 2d at 508. In Campo, we concluded that "a petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient." Id. at 9, 828 So. 2d at 509. Applying the rule set forth in Campo, we find that Ms. Bailey's original petition was not prescribed on its face because it "makes a prima facie showing that it was filed 'within one year from the date of discovery' and [incidentally] 'within a period of three years from the date of the alleged act, omission, or neglect.'" Id. at 10, 828 So. 2d at 509. Thus, defendants bear the burden of proving that Ms. Bailey's claims are barred by prescription.
"Prescription cannot run against a cause of action that has not accrued or while that cause of action cannot be exercised." Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La.1975). Under Louisiana law, for a negligence cause of action to accrue, three elements are required: fault, causation and damages. Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1148. Further, liberative prescription of one year generally begins to run when the victim knows or should know of the damage, the delict and the relationship between them. Branch v. Willis-Knighton Medical Center, 92-3086, p. 1 (La.4/28/94), 636 So.2d 211, 212. Stated another way, prescription "commences when a plaintiff obtains actual or co
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