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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 6 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinion handed down on the 20th day of January, 2005, is as follows: BY CALOGERO, C.J.: 2004-CC- 0620 C/W 2004-CC-0647 C/W 2004-CC-0684 GINGER BAILEY, ET AL. v. DR. GREGORY KHOURY, ET AL. C/W GINGER BAILEY, ET AL. v. DR. GREGORY KHOURY, ET AL. (Parish of Orleans) The decisions of the lower courts' denying defendants' peremptory exceptions of prescription are affirmed, and the case is remanded to the district court. AFFIRMED; REMANDED TO THE DISTRICT COURT. KIMBALL, J., dissents in part and concurs in part for reasons assigned by Victory, J. VICTORY, J., concurs in part and dissents in part with reasons. TRAYLOR, J., dissents for reasons assigned by Victory, J. KNOLL, J., additionally concurs and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.

01/20/05 SUPREME COURT OF LOUISIANA No. 2004-CC-0620 consolidated with No. 2004-CC-0647 consolidated with No. 2004-CC-0684 GINGER BAILEY, ET AL. VERSUS DR. GREGORY KHOURY, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS CALOGERO, Chief Justice Rapid advances in many scientific disciplines have led to the application of new methods and technologies in every aspect of medicine. Often these new capabilities require fundamental changes in legal analysis or raise legal questions that never before have required consideration.1 This case aptly demonstrates the truth of the above statement, as the primary issue involves the impact on the parties' rights, of information gained from advances in medical technology that raises a legal question "that never before [has] required consideration." In fact, our research indicates that the issue presented may be one of first impression, not only in the State of Louisiana, but in every legal jurisdiction in the United States. The court in this case is called upon to decide whether the time limitation for filing a claim seeking recovery of damages arising from birth defects can be considered to commence at a time prior to the child's live birth when, because of information gained from an ultrasound of

Hutton Brown, Miriam Dent, L. Mark Dyer, Cherie Fuzzell, Lanita Gifford, Sam Griffin, A.G. Kasselberg, M.D., Jayne Workman, and Melinda L. Cooper, "Special Project: Legal Rights and Issues Surrounding Conception, Pregnancy, and Birth," 39 Vand. L. Rev. 537, 605 (1986). 1

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the fetus, the unborn child's parent was told both that the child had birth defects and that those defects were probably caused by the mother's ingestion of drugs prescribed and dispensed by defendants. This argument is only the most recent of many creative legal arguments flowing from rapidly-changing medical and scientific advances which, over the last century, have transformed the legal principles applicable to liability for birth defects and prenatal injuries.2 The plaintiff in this case is the mother of a child who suffered birth defects, allegedly as a result of her ingestion of the prescription drug Depakote during the early days of her pregnancy. The mother filed suit in medical malpractice against various health-care providers who prescribed the drug, and in tort against various pharmacies that dispensed the drug, both in her individual capacity and in her representative capacity on behalf of the child. We granted these consolidated applications for supervisory writs to determine whether prescription on both of the plaintiff's claims commenced, as the defendants claim, on the date prior to the child's birth when the mother was told that the child would have defects at birth, probably resulting from her ingestion of Depakote during pregnancy, or, as the plaintiff claims, on the later date when the child was born, or whether different prescriptive periods might apply to the plaintiff's two claims. A divided panel of the court of appeal held that prescription commenced on the mother's claim on
This transformation has been described as follows: Until recent times, the general rule of law was that in the absence of a statutory provision requiring a different result, a prenatal injury afforded no basis for an action in damages in favor of the child. Today, however, the right of a child to bring suit to recover damages for prenatal injuries tortiously inflicted is broadly recognized, the general rule being that an action may be maintained for such prenatal injuries where the child was subsequently born alive. In this regard, it has been said that the law has come full circle in granting a surviving infant a cause of action for prenatal injuries; where the court previously spoke of the unborn child today it speaks of the unborn plaintiff. 62A Am. Jur. 2d Prenatal Injuries; Wrongful Life

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Louisiana Law