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SUPREME COURT OF LOUISIANA 97-CC-2221 DIANA LeBRETON Versus FELIX O. RABITO, M.D., PATRICK C. BREAUX, M.D. AND THOMAS A. KREFFT, M.D. _________________________________ On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans _________________________________ KNOLL, J.*
The sole issue before us in this medical malpractice claim is whether the lower courts erred as matter of law in applying the general provision on interruption of prescription found in La.Civ. Code art. 3462 simultaneously with the specific provision on suspension of prescription contained in La.R.S. 40:2399.57(A)(2)(a) of the Louisiana Medical Malpractice Act to defeat the defendants' peremptory exception of prescription. The trial court, relying on Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir. 1985), a case which approved the simultaneous application of interruption and suspension of prescription in the setting of medical malpractice, denied the defendants' peremptory exception of prescription and allowed plaintiff's action to continue. The Court of Appeal, Fourth Circuit, denied the defendants' writ application. We granted the defendants' writ application to consider the lower courts' pairing of interruption and suspension of prescription and the continued viability of Hernandez. 97-CC-2221 (La. 11/26/97), 703 So.2d 652. We
*

Kimball, J., not on panel. Rule IV, Part 2, Section 3.

now overrule Hernandez and reverse the present case, finding that the specific statutory provision providing for the suspension of prescription in the context of medical malpractice should have been applied alone, not complementary to the more general codal article which addresses interruption of prescription. FACTS On August 13, 1991, Albert LeBreton, Jr. suffered a heart attack at his home and was taken to Pendleton Memorial Hospital. At the time of his arrival at the hospital, Mr. LeBreton was unconscious. Over the next few days of hospitalization, Drs. Felix Rabito, Patrick Breaux, and Thomas Krefft treated Mr. LeBreton. On August 18, 1991, after consultation with Mrs. LeBreton, Dr. Breaux ordered the cessation of all artificial life support, including mechanical respiration, antibiotic treatment, food, and hydration, from Mr. LeBreton. The plaintiff, Diana LeBreton, Mr. LeBreton's daughter, protested her mother's decision and asked the treating physicians to reinstate nourishment, hydration, and medication to her father.2 The physicians refused the daughter's request. Subsequently, on August 20, 1991, Mr. LeBreton died. On August 18, 1992, the plaintiff filed a wrongful death claim in Civil District Court, Orleans Parish, against Drs. Rabito, Breaux, and Krefft. Her wrongful death action alleged that the "deliberate act of euthanasia" by the defendants caused her father's death. Although plaintiff contended in her petition that her action did not fall under the Louisiana Medical Malpractice Act, since defendants acted intentionally, she also filed a request on August 19, 1992, for a review of the claim by a medical review panel with the Patient's Compensation Fund Oversight Board. Drs. Rabito and Breaux interposed a dilatory exception of prematurity to the suit filed in Civil District Court. On July 20, 1993, the trial court granted the exception and
2

After being removed from mechanical respiration, Mr. LeBreton was able to breathe on his -2-

own.

dismissed plaintiff's suit without prejudice. Dr. Krefft also filed a dilatory exception of prematurity which was granted on August 26, 1993, dismissing plaintiff's suit against him without prejudice. On August 12, 1996, the medical review panel issued its opinion, finding no medical malpractice on the part of Drs. Rabito, Breaux, and Krefft. On August 14, 1996, the medical review panel sent notification of its opinion to plaintiff's attorney. On February 3, 1997, approximately five months after plaintiff's attorney was notified of the panel's opinion, plaintiff filed suit for wrongful death in Civil District Court against Drs. Rabito, Breaux, and Krefft. Shortly thereafter, Drs. Rabito, Breaux, and Krefft filed peremptory exceptions of prescription, alleging that plaintiff's wrongful death claim was prescribed on its face.3 The trial court, relying on Hernandez, supra, overruled the doctors' peremptory exception of prescription. The appellate court denied the doctors' supervisory writ on the same ground. OVERVIEW OF HERNANDEZ In Hernandez, the plaintiff discovered the alleged act of medical malpractice on March 16, 1981, and suit was filed in the district court against the Lafayette Bone & Joint Clinic and three physicians on March 15, 1982. The following week on March 22, 1982, the plaintiff requested a medical review panel. On July 12, 1982, the trial court, acting on the defendant's dilatory exception of prematurity, dismissed the suit without prejudice. The medical review panel acted on August 9, 1983, and notified plaintiff of its decision on August 12, 1983. Four months later, on December 16, 1983, the plaintiff filed a second suit against the defendants. After the defendants filed a peremptory
Drs. Rabito and Breaux filed their exception of prescription on March 26, 1997; Dr. Krefft filed his exception of prescription on April 10, 1997. -33

exception of prescription to the second suit, the trial court found that the plaintiff's claim was prescribed. The Court of Appeal, Third Circuit, reversed. The Third Circuit held that the plaintiff's filing of his law suit on March 15, 1982, interrupted prescription under La.Civ. Code art. 3462 which provides as follows: Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. It further held that under La.Civ. Code art. 3466 prescription effectively begins "to run anew from the last day of interruption." However, it determined that the one-year prescriptive period for medical malpractice claims did not begin to run anew because under La.R.S. 40:1299.47(A)(2)(a) prescription was suspended at the time plaintiff's suit was dismissed without prejudice. La.R.S. 40:1299.47(A)(2)(a) provides: The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification . . . to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, . . .. Furthermore, based upon La.Civ. Code art. 3472 "[t]he period of suspension is not counted toward accrual of prescription" and did not commence again until the period of suspension terminated. Accordingly, the Hernandez court reasoned, on the basis of La.Civ. Code art. 3466 and La.R.S. 40:1299.47(A)(2)(a), that the one-year prescriptive period was tolled until ninety days after the plaintiff's notification of the medical review panel's decision; not until that time had run did the one-year prescriptive period begin anew. Therefore, the appellate court concluded that the plaintiff's second suit was not prescribed because it had been filed within one-year following the termination of the

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suspension of prescription. LIBERATIVE PRESCRIPTION In their argument before us, Drs. Rabito, Breaux, and Krefft contend that instead of applying the general rules of prescription provided in the Civil Code, this case should have been resolved with the more specific rules enunciated in the Medical Malpractice Act. Simply stated, they urge that the lower courts should not have simultaneously applied the principles of interruption and suspension of prescription. We agree. Liberative prescription is a mode of extinguishing a legal claim that has not been filed by a creditor during a time period stipulated by law. La.Civ. Code art. 3447; G. Baudier-Lacantinerie & A. Tissier, TRAIT

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