WOMAN'S HOSPITAL FOUNDATION OF BATON ROUGE VS BILLIE CAROL BOLTON
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2005 CA 2357 WOMAN S HOSPITAL FOUNDATION OF BATON ROUGE VERSUS BILLIE CAROL BOLTON i Judgment Rendered rF Ii li t LQ i f i H j ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA TRIAL COURT NO 508 577 MICHAEL E KIRBY JUDGE AD HOC composed of Judge Dennis R Bagneris Sr Judge Michael and Judge Roland L Belsome serving as judges ad hoc by special appointment of the Louisiana Supreme Court Court Chris J LeBlanc Baton Woman for Plaintiff Attorney Rouge LA Baton Hospital Rouge s Keith D Jones AttOlney Baton E Kirby Appellee Foundation of Billie Carol Bolton Rouge LA for Defendant Appellant AFFIRMED YtjL fo PROCEDURAL HISTORY STATEMENT OF THE FACTS Plaintiff Billie Carol Bolton discovered she had She contends she contracted the disease from 1999 at Woman perfonned On June 16 lIs Bolton became lawsuit were July Similarly added as a a class action who 15 a a et blood plaintiff class of July That suit for her claim Hospital filed requested to 26 February conduct that against a a the against Woman dismissed own Woman s suit number be behalf of all in Louisiana from At C Hepatitis that Blood Center v some that class action in this state hospitals Woman Hospital s 24 2000 dismissed Ms Bolton a medical review requested On 2003 Bolton in East Baton Rouge to the medical review s panel medical review a June 9 Hospital assigned point panel Woman s Parish and panel action discovery and motion practice was Ms Ms Bolton petition against Ms On March 23 Bolton 2003 in 1980 was on transfusions claim because she had not submitted her claim to On a et representatives including Judgment blood transfusion a Rouge representative corporations C in late filed in Civil District Court in 1982 and contracted number of CDC a was No 99 9855 received defendant class However of Baton entitled Hilda N Garrison Louisiana before hospitals 1999 residents Louisiana Hospital Foundation CDC Orleans Parish for Southeast s Hepatitis only named s class Hospital representative who because Ms had asserted a claim Hospital Bolton on a 2004 the CDC dismissed the s suit in Baton Rouge against Woman Peremptory Exception 2 of Prescription filed s by Hospital the was Hospital Hospital The diagnosis aven asserted that Ms Bolton ed that within in 2003 was to too year after one take late action some s she had discovering to See La R S 9 5628 1 The issue because her The Hospital C Ms Hepatitis and that her suit intenupt prescription whether the above mentioned class action suit Ms Bolton prescribed in 1999 and she did not file suit until 2003 was Bolton needed claim had s we must resolve is interrupted prescription on claim DISCUSSION the Louisiana Originally s for blood transfusions because liability blood fell under the Civil Code The Act was transfusions amended in See La R S Under La claim is prescription 40 covered action for transfusion of tainted the Louisiana Product claims s Liability arising from Act blood 41 1299 3462 the filing La by RS However on a or an Act did not limit Malpractice 1987 to include Civil Code mi interruptecf jurisdiction 1 Medical malpractice the of a prescriptive period suit 40 1 claim is 47 299 in a comi of A 2 a suspendecf on a legal competent provides upon the that filing of malpractice injury or death against any physician chiropractor nurse licensed midwife practitioner dentist psychologist optometrist hospital or nursing home duly licensed under the 41 1299 A whether laws ofthis state or community blood center or tissue bank as defmed in R S 40 tort or breach of contract or otherwise arising out of patient care shall be brought wlless filed based upon within one year from the date ofthe alleged act omission or neglect or within one year from the date of discovery ofthe alleged act omission or neglect however even as to claims filed within one year from the date ofsuch discovery in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act omission or neglect La R S 9 5628 Actions for medical A No action for 2 Art 3466 is intelTupted the time that has run is not counted Prescription commences to run from the last day of interruption 3 Art 3472 The to for Effect of intenuption Ifprescription anew damages run again Effect of period suspension suspension of is not counted toward accrual of prescription upon the termination ofthe period of suspension 3 Prescription commences a request for a panel medical review In LeBreton 714 So 2d 1226 the Louisiana 7 8 98 benefit from both filing suit C C art 3462 and the La R S 40 47 l299 A an 2 97 2221 Court held that a La plaintiff intenuption of prescription by prematurely cannot a Supreme Rabito v by a suspension later filing of prescription a request for provided for in medical review a panel Nevertheless C C P of a art 596 plaintiff dealing with class action lawsuit Malpractice Act raises the can suspension out of the of upon the prescription filing be hannonized with the Louisiana Medical La C C P art 596 Liberative She contends that La novel issue a states prescription transactions on the claims or occurrences arising described in petition brought on behalf of a class is suspended on the filing of the petition as to all members of a the class defined as therein described or Prescription which has been suspended herein begins to run again as provided As to any person electing to be excluded the class from the submission of that l from person election fonn s 2 pursuant other As to any person excluded from the class to Article 592 thirty days after mailing or delivery or publication of a notice to such person that the class has been restricted otherwise redefined so as to exclude him or 3 mailing As to all or other members delivery or thirty days after publication of a notice to the class that the action has been dismissed the demand for class pursuant denied a She dismissed a to relief has been 592 or motion to previous reasons Article that she remains order certify certifying although a or her that the the class stricken court has has vacated the class petition member of the 4 or that as a putative class representative class and was prescription is still suspended to her claim as the CDC reveals that it dismisses blood product We Bolton on or are was after impelled to of C C P on her claim Next plaintiff medical review Hospital class as a C CP on require to require a the fact that La R S 40 fundamental change that has taken legislature enacted C C human blood liability by health without specific of medical service stated uses plaintiff art care of blood by in this 2322 1 which were area care case plead The a legislature 5 care has She plaintiff so the medical however ignores the of the law In 1981 the was re certain uses was and not cause abrogated or of all written to declare providers products liability a that the exempt from strict liability In 1990 the article named health act provides provided that for all purposes whatsoever seeks to blood transfusion place cases However care This argument providers negligence that a to do nothing rule detenuine whether the to defendant breached any standard of has G 47 1299 standard of panel general vain and useless defendant acted within the review Weare her to submit her claim to her to do appropriate as a prescription began rule for malpractice panel is allege and representative after notice of the dismissal specific argues that to panel is argument the or a argument that Ms s 596 3 art sole function of the medical review does not of blood this result because LeBreton supra teaches that the yield to herein 1975 to thiIiy days of judgment damages transfusion or to agree with the Thus pursuant art 596 must bases this 1 24 2001 July claims for plaintiffs dismissed from the class action again run September constrained member of the class to all for the administration including claims to the Reference a the rendition sale Simply of action in this that cause of action but to another provided avenue It is of redress of that timely bring herself within the parameters In these 1999 applicable all to provisions which within Subsection B application claimant file to thereof that it provided 1 given until July RS they prior arose 2000 to file may have arisen the an of blood use and had retroactive procedural was and 9 5628 1 relative to the from liability for any claim that However was for La procedural be to of when regardless action remedy declared were legislature enacted Likewise in 1999 the time of action causes plaintiff s obligation though to July action in 1997 1 the comi a of competent jurisdiction Ms Bolton had have or She did Fund until February and treatment diagnosis and not file her 27 s in 2003 only more against Woman 9 5628 1 When prescription burden of proof shifts 131 54 See Eastin and s are 3 no was not use the asserted blood Patients years prescribed Kirby v v evidence is evident to the Compensation from the date of her Field 2004 1898 or on R S the face of the La argument 6 App petition 9 5628 and La the face of the 2003 1030 La 3 24 06 credible La on claimant to show that the Entergy Corp writ denied 2005 2467 offered She learned she twenty three 23 years from the than under Louisiana Civil Code article 3492 49 1980 discovelY The claims prescribed cause complaint with the than three more April of November 1999 and since she did or she inferred the tattoos transfusion date of treated at Woman C in October Hepatitis dlUgS was pleadings the action La 2 6 04 1 Cir 9 23 05 925 So 2d 1230 to meet this burden R S is not 865 So 2d 923 2d So Ms Bolton has CONCLUSION Because we find La R S clear statement of the court s dismissal on legislative the 9 5628 1 to be intent we applicable apply exception of prescription AFFIRMED 7 and a sufficiently it here and affinn the trial
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