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Bailey v. Khoury1/20/2005
a cause of action while she was in utero, she would not be able to pursue this action until she was born. Logic, therefore, dictates that any cause of action that may be brought on her behalf for injuries she suffered in utero would not prescribe until one year from the date of her birth.
02-0049 at 3, 868 So. 2d at 823. Justice Pro Tempore Landrieu concurred in the court of appeal decision, noting the language of La. Civ. Code art. 26 "that an unborn child shall be considered a natural person for whatever relates to its interests from the moment of conception," and concluded that the article was "clearly enacted to protect unborn children and not to disadvantage them." 02-0049 at 1, 868 So. 2d at 824 (emphasis added).
PRESCRIPTION ON PLAINTIFFS' CLAIMS
We note at the outset that the court of appeal decision affirming the district court judgments that denied the defendants' exceptions of prescription is based on the unstated assumption that prescription on Ms. Bailey's individual claim and prescription on Ms. Bailey's claim on behalf of Jada commenced on the same day, and should be governed by similar legal arguments and principles. Despite the fact that the medical malpractice defendants separated the two claims in the discussion sections of their memorandums supporting their exceptions of prescription in the district court, none of the lower court decisions separates the two causes of action, and the defendants do not clearly distinguish them in their briefs to this court. However, given the applicable law and the procedural posture of the case, we find it necessary to consider the two causes of action separately.
Ms. Bailey's claims on behalf of Jada
As indicated in the introduction to this opinion, the specific argument set forth by the defendants is apparently unique in the reported case law. In fact, we have not discovered any reported cases that have considered an argument that, under the discovery rule, the statutory period for filing suit seeking damages arising from birth defects or other prenatal injuries should commence on a date prior to the child's birth when the parent acquired knowledge of the birth defects as a result of a medical procedure. Rather, the reported cases generally fall into two categories: (1) those holding that the statutory period for filing suit commences on the date of the child's birth, and (2) those applying the discovery rule and holding that the statutory period for filing a suit for damages arising from birth defects or other prenatal injuries does not begin until the date after the child's birth when the cause of the birth defects was discovered. A review of the cases indicates that the latter rule is often applied to claims that birth defects were caused by the mother's ingestion of drugs during pregnancy.
The first rule has been applied in a number of Louisiana cases when some specific circumstance attendant to the child's birth provided the parent notice that the child had suffered injury related to negligent medical care. See Tucker v. Lain, 98-2273 (La. App. 4 Cir. 9/5/01), 798 So. 2d 1041, writ denied, 01-2715 (La. 1/4/02), 805 So. 2d 210; Richardson v. Moffett, 608 So. 2d 275 (La. App. 3 Cir. 1992), writ denied, 612 So. 2d 93 (La. 1993); Maung-U v. May, 556 So. 2d 221 (La. App. 2 Cir.), writ denied, 559 So. 2d 1385 (La. 1990); Percy v. State of Louisiana, 478 So. 2d 570 (La. App. 2 Cir. 1985). The second rule has also been widely applied to Louisiana cases in which the cause of a birth defect apparent at delivery was discovered sometime after the birth. See Bailey v. Haynes, 37, 038 (La. App. 2 Cir. 4/9/03),843 So. 2d 584 writ denied, 03-1209 (La. 10/10/03), 856 So. 2d 1207; Adams v. Louisiana M
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