 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Walker v. Bossier Medical Center5/11/2005
On Remand
EN BANC
Before BROWN, WILLIAMS, STEWART, GASKINS, PEATROSS, DREW, MOORE, LOLLEY, and SEXTON (ad hoc), JJ.
GASKINS, J., concurs without reasons.
BROWN, J., dissents with written reasons.
DREW, J., dissents for the reasons assigned by Judge Brown. LOLLEY, J., dissents for the reasons assigned by Judge Brown.
This case is again before this court upon remand from the Louisiana Supreme Court for an en banc hearing. The plaintiffs, Aiko Walker and Paul Walker, appeal a judgment in favor of the defendant, Bossier Medical Center ("Bossier Medical"). The district court granted the defendant's exception of prescription, finding that the three-year prescriptive period of LSA-R.S. 9:5628 was constitutional and that plaintiffs' claim for damages resulting from a blood transfusion had prescribed. For the following reasons, we affirm.
FACTS
In January 1981, Aiko Walker was hospitalized for surgery at Bossier Medical, where she received a blood transfusion. More than a decade later, in February 1992, Walker was diagnosed by her doctors with Hepatitis C as a result of the 1981 blood transfusion. Thereafter, on January 23, 1993, Walker filed a request for a review of her claim by a medical review panel. After an adverse opinion was issued, the plaintiffs, Aiko and Paul Walker, filed a petition for damages against the defendant, Bossier Medical, alleging that it was strictly liable for the harm caused by Walker's receipt of a transfusion of defective blood. The plaintiffs amended their petition, naming as additional defendants Lifeshare Blood Center and the Louisiana Attorney General.
Bossier Medical filed a peremptory exception of prescription arguing that the three-year limitation period of LSA-R.S. 9:5628, the medical malpractice prescription statute, barred Walker's claim for damages that was filed approximately twelve years after her surgery. The plaintiffs contended that their claim had not prescribed under the general prescription articles on delictual actions, which have been construed to allow prescription to run from the time of the discovery of the harm. The district court held that LSA-R.S. 9:5628 was the applicable prescriptive statute and sustained the exception.
On appeal, this court found that plaintiffs' strict liability claim was one of medical malpractice because the transfusion occurred after the 1976 amendment of LSA-R.S. 40:1299.41, the Medical Malpractice Act (MMA), which defined malpractice to include "all legal responsibility of a health care provider arising from defects in blood." Thus, we held that plaintiffs' medical malpractice action was subject to the prescriptive period of LSAR.S. 9:5628 and affirmed the district court judgment granting the exception of prescription, but remanded for a hearing on the plaintiffs' constitutional claims. Walker v. Bossier Medical Center, 30,715 (La. App. 2d Cir. 6/24/98), 714 So.2d 895.
Subsequently, in Williams v. Jackson Parish Hosp., 00-3170 (La. 10/16/01), 798 So.2d 921, the supreme court overruled this court's opinion in Walker regarding the applicability of Section 5628 in defective blood cases. The supreme court found that a claim for damages caused by a transfusion of tainted blood was a strict liability claim and not one of medical malpractice subject to the prescriptive period of LSA-R.S. 9:5628. However, the supreme court later overruled its decision in Williams, supra, holding that the Section 5628 prescriptive period is applicable to a strict liability claim for damages resulting from a blood transfusion. David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La. 7/2/03), 849 So.2d 38.
Page 1 2 3 4 5 6 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|