Category: Prescription

An Update on Prescription – The Most Important Issue

“Prescription” is the time period in which a litigant must file suit, or the action is barred.  One of the first lessons a Louisiana law student learns is the importance of determining the prescriptive period of a cause of action.  Filing a cause of action too late is fatal.  A recent decision from the Louisiana Fifth Circuit Court of Appeal reads like a law school exam and illustrates that determining which prescriptive period applies is sometimes the key to the case.

In DeFelice v. Federated Nat’l Ins. Co., 18-374 (La. App. 5 Cir. 7/9/19), mold was discovered in plaintiff’s home on June 10, 2016.  Plaintiffs notified their insurance company, who hired a mold remediation company to inspect the home.  When the home was inspected on June 22, 2016, the inspector verbally informed plaintiffs that the home was safe.   On the same day, a separate mold inspector collected samples. The second mold inspector issued a report on June 23, 2016 advising that mold remediation may be necessary.  This report specifically stated that “certain mold and mold spores in buildings and housing can result in mild to severe health effects in humans and can deteriorate the structure of the dwelling resulting in content or structure damage.”  The second report was provided to the plaintiffs.   

Plaintiffs continued to live in the home.  In August of 2016, plaintiffs’ infant son was born.  Shortly thereafter, the infant began to experience breathing issues and was diagnosed with a lung condition by December of 2016.  Plaintiffs vacated the premises in January of 2017.

More than one year after receipt of the second mold report, plaintiffs filed suit on July 24, 2017 against their insurer and the inspector who advised that the home had no mold problems.  Plaintiffs raised claims for property damage, damage to the health of the parents, damage to the health of the minor child, and consortium claims on behalf of the parents for the damage to the minor child.

The DeFelice court found that prescription began to run on June 23, 2016 with regard to the parents’ individual and property damage claims.  Because suit was not filed within a year of the second mold report advising of possible health and property damages, the parents’ individual health claims and the claims for property damage were prescribed under the one-year period set by Civil Code article 3492.

The minor child was not born when the report was issued on June 23, 2016.  Plaintiffs argued that those claims were brought within a year of the child’s birth, and were therefore timely. The DeFelice court agreed and held that prescription could not began to run until the child was born. While Louisiana law provides that a child is a “person” upon conception, this “legal fiction” applies only to protect the interests of the child. The court reasoned that a finding that prescription commenced prior to birth would not “protect the interests” of the child.  While the parent’s claims were prescribed, the claim filed on behalf of the infant, and any claims that the parents had related to their infant’s health condition, were timely.

The court’s analysis in DeFelice reminds that determining which prescriptive period applies to which claim is often the most important issue.

Interrupted by Silence: Medical Malpractice Prescription

By C. Reynolds LeBlanc

La. R.S. 9:5628 provides that a patient/medical malpractice plaintiff must assert his or her claim within one year of the alleged negligent act or from when that act is discovered. If a claim is not raised within this time frame, it is “prescribed,” i.e., untimely. The statute also declares that all claims must be asserted within three years of the alleged negligent act, even if the patient was unaware of the malpractice. However, there are exceptions.

Under the doctrine of contra non valentem, prescription does not run if the defendant has done something to prevent the plaintiff from filing within the prescriptive period. In In re Medical Review Panel of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274 So.3d 750, the Louisiana Fifth Circuit considered whether a decision not to tell a patient about malpractice exempted from prescription a claim which was not filed within three years of the alleged malpractice.

In the case, Lindquist had spinal surgery on August 22, 2013. He returned on August 24, 2013 with complaints of pain. Although an x-ray showed a metal artifact in the operative site of his back, he was not informed and was discharged. He returned the next day with continued complaints of pain and an MRI was ordered. Like the x-ray, the MRI showed the metal artifact. Again, the plaintiff was not informed.

Lindquist continued to experience pain for years. When another MRI was performed on May 25, 2017, Lindquist was first informed of the metal object in his back. Within months,  he filed a claim against the doctor who performed the 2013 surgery. In response, the doctor argued that the claim was prescribed under La. R.S. 9:5628 because it was filed more than three years after the surgery.

Contra non valentem applies where a plaintiff has been lulled into inaction because of concealment or fraudulent conduct by the defendant. The doctor argued that this standard was not met simply because the doctor was silent about the patient’s condition. However, the Lindquist court held that a doctor possesses an affirmative duty to advise a patient of pertinent medical information such as the presence of a metal artifact near the spine.  Therefore, if the doctor, as alleged in Lindquist, failed to disclose a metal foreign object, this would constitute a fraudulent act which prevented the plaintiff from filing his claim timely.  In Lindquist, prescription was interrupted by silence and the plaintiff/patient was allowed to pursue his claim.

Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.

Fourth Circuit Brings Clarity to Peremption Statute in Suit Against Design Professional

The question addressed in MR Pittman Group, LLC versus Plaquemines Parish Government, 2015-0396 (La.App. 4 Cir. 12/2/15) was whether the five-year peremptive period set by La. R.S. 9:5607 displaces Louisiana’s general one-year prescriptive period set by La. C.C. art. 3492, when applied to tort claims against design professionals. Finding a contractor’s claim against the project engineers prescribed, the MR Pittman court held that the one-year prescriptive period governs tort claims against design professionals.