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Bailey v. Khoury1/20/2005
nstructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort." Campo, 01-2727 at 11, 828 So. 2d at 510. This court held in Campo that the "ultimate issue" in determining whether a plaintiff had constructive knowledge of a malpractice action is "the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct." Id. at 12, 828 at 511.
Moreover, La. Civ. Code art. 3492, relative to prescription in tort actions, specifically provides that the prescriptive period "commences to run from the day injury or damage is sustained." That provision has been explained by this court as follows:
[La. Civ. Code art. 3492] is rooted in the recognition that a prescriptive period is a time limitation on the exercise of a right of action, and a right of action in tort comes into being only when the plaintiff's right to be free of illegal damage has been violated. When damages are not immediate, the action in damages thus is formed and begins to prescribe only when the tortious act actually produces damage and not on the day the act was committed.
The damage suffered must at least be actual and appreciable in quality--that is, determinable and not merely speculative. But there is no requirement that the quantum of damages be certain or that they be fully incurred, or incurred in some particular quantum, before the plaintiff has a right of action. 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.
Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992) (citations omitted). Thus, damage is considered to have been sustained, within the meaning of La. Civ. Code art. 3492, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993).
Because, as this court held in Hebert and Campo, La. Rev. Stat. 9:5628, the prescription provision for medical malpractice actions, "initially coincides with" the general prescriptive period for delictual actions set forth in La. Civ. Code art. 3492, the above principles apply to determine when the prescriptive period commences in a medical malpractice action. Thus, the primary question we must answer in order to decide the issues presented by this case is the date when the claims asserted by Ms. Bailey accrued.
Defendants' arguments in favor of prescription
Defendants' arguments in support of their exceptions of prescription are based primarily on the following provisions of the Louisiana Civil Code:
Art. 24 Kinds of persons
There are two kinds of persons: natural and juridical persons. A natural person is a human being . . ..
Art. 25. Commencement and end of natural personality
Natural personality commences from the moment of live birth and terminates at death.
Art. 26. Unborn child
An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.
Art. 27. General legal capacity
All natural persons enjoy general legal capacity to have rights and duties.
Art
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