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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 76 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 2nd day of December, 2008 , are as follows:

BY CALOGERO, C.J. :

2007-CC-0492

PAMELA WARREN, THERESA RENE WARREN AND SARAH WARREN JIMENEZ v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, JEFFREY A. LAMP, M.D., ROBYN B. GERMANY, M.D., SANDRA MOODY, NP-C, AND FAMILY HEALTH OF LOUISIANA, INC.(Parish of E. Baton Rouge) Accordingly, the decision of the court of appeal is affirmed. AFFIRMED AND REMANDED. KIMBALL, J., additionally concurs and assigns reasons. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons. KNOLL, J., dissents and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.

12/02/08 SUPREME COURT OF LOUISIANA
NO. 2007-CC-0492 PAMELA WARREN, THERESA RENE WARREN, AND SARAH WARREN JIMENEZ VS. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, JEFFREY A. LAMP, M.D., ROBYN B. GERMANY, M.D., SANDRA MOODY, NP-C, AND FAMILY HEALTH OF LOUISIANA, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

CALOGERO, Chief Justice Today we reaffirm our jurisprudence applying La. Code Civ. Proc. art. 1153 to the amendment of a timely filed petition, an amendment that adds a major child's wrongful death action arising from the death of her father, to find that the amendment relates back to the date of filing of the original petition for wrongful death and survival actions by the wife and another major child of the decedent against the defendant health care providers. See Giroir v. South La. Med. Ctr., Div. of Hospitals, 475 So.2d 1040 (La. 1985). Accordingly, for the reasons set forth below, we hold that the amendment adding the wrongful death action of Sarah Warren Jimenez relates back to the timely filing of the original petition filed by Sarah's mother, Pamela Warren, and her sister, Theresa Rene Warren. We further
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find that Sarah was entitled to the benefit of the interruption of prescription on the survival action such that the amending petition adding her as a plaintiff to that cause of action was timely filed. See Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La. 1993). Therefore, the district court correctly denied the defendants' exception of prescription with regard to the amending petition adding Sarah's claims. This case arises from the death of Terry Warren. He died on October 13, 2000, at Summit Hospital from complications of congestive heart failure and/or an acute myocardial infarction. On September 11, 2001, Pamela Warren, Mr.

Warren's widow, and Theresa Warren, one of Mr. Warren's daughters, filed a request for a medical review panel to investigate their medical malpractice complaint against various health care providers, including Mr. Warren's treating physicians. The medical review panel issued its opinion on August 27, 2002.

Pamela and Theresa then filed a petition on November 25, 2002, in the district court asserting survival and wrongful death actions under La. Civ. Code arts. 2315.1 and 2315.2. On July 6, 2004, plaintiffs Pamela and Theresa filed a First Supplemental and Amending Petition. This petition added survival and wrongful death causes of action for Sarah Warren Jimenez, the decedent's second daughter. In response to the amended petition, the defendants filed an exception of prescription, arguing that Sarah's claims are prescribed on their face because she did not file her action within one year of the date of her father's death. The

defendants pointed out that Sarah testified in deposition that she was aware of the
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filing of the medical review complaint as well as the filing of the instant lawsuit by her mother and sister but chose, at that time, not to participate.1 Under these facts, the defendants argued that Sarah's claims do not relate back to the original claims pursuant to Giroir. In addition, the defendants claimed they were severely prejudiced by the addition of another plaintiff in July 2004, nearly three years after the request for a medical review panel was made in September 2001, and nineteen months after the lawsuit was filed in November 2002. The plaintiffs opposed the exception. In support, the plaintiffs urged the trial court to apply Tureaud v. Acadiana Nursing Home, 96-1262 (La.App. 3 Cir. 5/7/97), 696 So.2d 15, and Phillips v. Francis , 01-1105 (La.App. 3 Cir. 2/6/02), 817 So.2d 107. According to the plaintiffs, Tureaud and Phillips stand for the proposition that if proper party plaintiffs file their claim timely, that suit will interrupt prescription as to any other plaintiffs that have similar claims. After a hearing, the district court overruled the defendants' exception of prescription. From this ruling, the defendants sought supervisory review. A fivejudge panel of the court of appeal denied the writ, citing La. Code Civ. Proc. art. 1153 and Giroir. Upon application by the defendants, this court remanded the case

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In her deposition, Sarah explained that her poor relationship with her mother, who has multiple sclerosis, was exacerbated by the death of her father and that she could not face the emotional ordeal of a lawsuit. According to Sarah, her mother abandoned the two daughters after the father's death, and they did not speak for over three years. She explained that, because she came to realize she could be subpoenaed to testify as a witness, i.e., become involved in the suit, she later decided to join the case as a party plaintiff. 3

to the court of appeal for briefing, argument and opinion. Warren v. Louisiana Medical Mutual Insurance Company, 06-1547 (La. 9/29/06), 938 So.2d 693. On remand, a majority of the five-judge panel of the court of appeal again denied the writ application in an unpublished written decision, relying on the four guidelines identified by this court in Giroir. We again granted the defendants' writ application to consider the propriety of the court of appeal's ruling as well as the application of La. Code Civ. Proc. art. 1153 and Giroir to the facts of this case. Warren v. Louisiana Medical Mutual Insurance Company, 07-0492 (La.4/27/07), 955 So.2d 670. DISCUSSION We first turn to the survival action that Sarah seeks to join in as an additional plaintiff. A survival action, which compensates for the damages suffered by the victim from the time of injury to the moment of his death, and a wrongful death action, which compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter, are separate causes of action. See Walls v. American Optical Corp., 98-0455 p. 14, (La. 9/8/99), 740 So.2d 1262, 1273; Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993). With regard to Sarah's addition as a plaintiff in the survival action, she shares in that cause of action with her sister and mother; therefore, prescription on that cause of action was interrupted when Sarah's sister and mother timely filed suit against the defendants. "`When several parties share a single cause of action ..., suit by one interrupts prescription as to all.'" Williams v. Sewerage & Water Bd. of New
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Orleans, 611 So.2d 1383, 1390 (La. 1993), quoting Louviere v. Shell Oil Co., 440 So.2d 93, 96 (La. 1983). "`[A]ll prescriptions affecting that cause of action are interrupted by the suit and remain continuously interrupted as long as the suit is pending.'" Id., quoting Louviere, 440 So.2d at 98. Therefore, Sarah, like her

mother and sister, was also entitled to the benefit of interruption of prescription on her survival claim against the defendants. The district court thus properly

overruled the defendants' exception of prescription with regard to the amending petition adding Sarah as a plaintiff in the survival action. We next turn to the issue of Sarah's wrongful death claim and whether the amending petition adding this claim relates back under La. Code Civ. Proc. art. 1153 to the date of the timely filing of her mother's and sister's survival and wrongful death claims. The analysis with regard to this cause of action begins with La Code Civ. Proc. art. 1153. That article provides: When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of filing the original petition.

In Giroir, this court examined the jurisprudence applying Federal Rule of Civil Procedure 15(c), upon which La. Code Civ. Proc. art. 1153 is based, and concluded that "[a]lthough the [federal] Rule refers to `an amendment changing the party' it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined." 475 So.2d at 1043 (collecting authorities).
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While acknowledging the "less

difficult" legal analysis for the relation back of amendments involving a change of capacity, this court nonetheless set forth factors to consider for the relation back of an amendment adding or changing plaintiffs. Id. at 1044. Relying on our prior case in Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), regarding amended petitions adding or substituting defendants, we set forth these factors in Giroir: "[a]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense." Giroir, 475 So.2d at 1044. In Giroir, the husband of the decedent filed suit against the defendants seeking survival damages as administrator of his wife's estate and wrongful death damages sustained by him. Ten days later, but after the prescriptive period had run, the husband sought to add the decedent's two major children in both the survival and wrongful death actions. The amending petition also sought to change the husband's capacity so that he appeared as an individual rather than as the administrator of his wife's estate. We found that these amending petitions adding the wrongful death claims of the major children related back to the filing of the husband's original petition. With regard to the major children's wrongful death and survival actions, we reasoned in pertinent part that the defendants knew or
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should have known of the existence and involvement of the children, because (1) the facts in the original petition gave the defendants notice of, and did not negative, the reasonable possibility that a surviving child of a deceased fifty-five year-old married woman would be entitled to recover as a survivor or wrongful death beneficiary and might later assert a claim, and (2) the defendants had received actual notice that the decedent had children through the recorded visits of her family members, the recorded assistance of her daughter in transporting her, and the recorded psychiatric report evidencing her concern for her grandchildren. Additionally, the court reasoned that the defendants had not been prejudiced in preparing and conducting their defense, not only because the added actions arose out of the same transaction or occurrence and because they knew of and had record of the existence of the children, but also because the timing of the amendment was well before trial and the defendants thus had had ample time to prepare for trial. We reasoned that the defendants in Giroir had failed to show that they were in any way hurt or impaired in their ability to investigate, preserve evidence, and prepare defenses on both the liability and quantum issues. Giroir has since been applied in various situations in the courts of appeal, with some courts finding that the added claims of a new plaintiff did relate back to the filing of the original petition and other courts finding to the contrary. The lower courts have not encountered problems in applying these precepts; consequently, we discern no need to reconsider Giroir today. However, we point out that the enumerated Giroir factors are guidelines to be considered under the
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totality of the circumstances before an amendment adding a new plaintiff will be deemed to relate back pursuant to La. Code Civ. Proc. art. 1153. Considering the Giroir factors in this case, we agree with the court of appeal that the amending petition adding Sarah's wrongful death claim satisfied the first guideline, because Sarah's claim arose out of the same conduct, transaction or occurrence set forth in the original petition

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