The Louisiana Supreme Court has issued two decisions in the past year, Borel v. Young and Warren v. LAMMICO, which are favorable to Louisiana health care providers. In the Warren case, a potential plaintiff waited almost four years from the date of her father’s death to file a wrongful death and survival claim against the health care providers. The plaintiff had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods (a.k.a. statute of limitations) required by La. R.S. 9:5628. The plaintiff’s mother and sister had already filed a timely complaint with the Louisiana Patients’ Compensation Fund, proceeded with a Medical Review Panel, and subsequently filed a lawsuit. The issue before the Court was whether the new plaintiff could file her own wrongful death and survival claim that would “relate back” to the original, timely claims of her mother and sister.
The Court in Warren had originally ruled that an amended petition adding a new plaintiff’s otherwise prescribed medical malpractice claims related back to the timely filing of an original petition pursuant to Louisiana Code of Civil Procedure Article 1153 and the analysis set forth in Giroir v. La. Med. Ctr., Div. of Hospitals. However, on rehearing, the Supreme Court held that the second daughter’s claims were prescribed under the specific provisions of the Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and La. R.S. 9:5628 and any general code article which conflicts with the operation of prescription under these specific provisions cannot be applied in a medical malpractice case.
Te Louisiana Supreme Court followed this same line of reasoning in an earlier decision, Borel v. Young, where it addressed the issue of late-added defendants. In Borel, the plaintiffs attempted to file suit against a new defendant after the prescriptive period had already run by arguing that the defendant was jointly liable with the original defendants and prescription was interrupted under the general Louisiana Civil Code article 2324. The Court held, as it did in Warren, that the more specific provisions of the Medical Malpractice Act regarding prescription apply to the exclusion of the general code article on the interruption of prescription against joint tortfeasors found in La. C.C. Art. 2324.
With the Warren and Borel decisions, the Supreme Court has now held that for both late-added plaintiffs and late-added defendants, the more specific provisions of the Medical Malpractice Act and La. R.S. 9:5628 regarding prescription apply to the exclusion of any general code articles on the interruption or suspension of prescription in medical malpractice cases. For example, a patient cannot file suit against a hospital and then wait several years to amend his lawsuit to name the doctor who treated him at the hospital as a defendant. Also, if a patient dies and leaves a wife and two children, but only the wife and one child decide to file a lawsuit, the second child cannot wait until years after the lawsuit is filed to join in the lawsuit as a plaintiff.