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Bailey v. Khoury1/20/2005
edical Mutual Insurance, 33,030 (La. App. 2 Cir. 4/7/00), 756 So. 2d 708, writs denied, 00-1313, 00-1322 (La. 6/30/02), 766 So. 2d 544; Lecompte v. State of Louisiana, 97-1878 (La. App. 1 Cir. 9/25/98), 723 So. 2d 474; Welch v. St. Francis Medical Center, Inc. 521 So. 2d 758 (La. App. 2d Cir.), writs denied, 527 So. 513 (La. 1988); Poole v. Physicians & Surgeons Hospital, 516 So. 2d 1185 (La. App. 2 Cir. 1987), writs denied, 519 So. 2d 127, 128 (La. 1988).
Although none of the cases listed above address the exact issue presented in this case, a review of those cases reveals that medical malpractice cases involving birth defects and other prenatal injuries involve unique problems, not necessarily present in other medical malpractice cases. In fact, it has been recognized that such cases differ from other medical malpractice cases in "several significant ways." Jennifer M. Chow, "Civil Practice Law and Rules," 69 St. John's L. Rev. 675, 679 (1995). Those differences have been generally described as follows:
First, unborn children have never been recognized as "persons" in a legal sense. Second, unlike claimants in other medical malpractice cases, an unborn child cannot bring a claim when the act occurs, but must wait until birth. Third, the tortious act in a prenatal injury case creates conditional prospective liability which only attaches if the child is born alive.
Id. (Footnotes omitted.) These differences, Ms. Chow suggests, must be considered in order to determine when a cause of action for medical malpractice resulting in birth defects or other prenatal injuries accrues.
Actually, determination of the accrual date of a cause of action for medical malpractice resulting in birth defects or other prenatal injuries in this case is facilitated by the fact that Louisiana is one of only a few jurisdictions in the United States that has adopted specific legal provisions relative to the rights of unborn children subsequently born alive. Thus, the first of the three "differences" listed by Ms. Chow between medical malpractice cases involving birth defects and other medical malpractice cases is not present in this case. La. Civ. Code art. 26 specifically provides that " n unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception," unless it is born dead, in which case "it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death." We find that the accrual of Ms. Bailey's claim on behalf of Jada is controlled by the language of La. Civ. Code art. 26, coupled with its legislative history.
La. Civ. Code arts. 24 through 27, all cited by the defendants, are found in Louisiana Civil Code, Book I, Title I, which relates to "Natural and Juridical Persons." Title I of Book I of the Civil Code was most recently amended by Act 125 of the 1987 Acts of the Louisiana Legislature. The amendments adopted by the Legislature as part of Act 125 (1987) were recommended by the Louisiana State Law Institute in a report from its meeting that occurred on October 10 through 11, 1986, prepared by Professor A.N. Yiannoppoulos. The Reporter appended comments to the Institute's recommendation that the legislature adopt the provision now designated as La. Civ. Code art. 26, which provides that " atural personality commences from the moment of live birth and terminates at death." Those comments included the following excerpt from Yiannopoulos, Louisiana Civil Law System, ยง 50 (1977):
The personality of natural persons commences at the moment of birth, that is, at the moment in which a child is completely separated from the body of its mother. Until tha
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