Insight

An Update on Prescription – The Most Important Issue

Published on: November 26, 2019

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

In DeFelice v. FederatedNat'l Ins. Co., 18-374 (La. App. 5 Cir. 7/9/19), mold was discovered inplaintiff’s home on June 10, 2016. Plaintiffs notified their insurancecompany, who hired a mold remediation company to inspect the home. Whenthe home was inspected on June 22, 2016, the inspector verbally informedplaintiffs that the home was safe. On the same day, a separate moldinspector collected samples. The second mold inspector issued a report on June23, 2016 advising that mold remediation may be necessary. This reportspecifically stated that “certain mold and mold spores in buildings and housingcan result in mild to severe health effects in humans and can deteriorate thestructure of the dwelling resulting in content or structure damage.” Thesecond report was provided to the plaintiffs.

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

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

The DeFelice court foundthat prescription began to run on June 23, 2016 with regard to the parents’individual and property damage claims. Because suit was not filed withina year of the second mold report advising of possible health and propertydamages, the parents’ individual health claims and the claims for propertydamage were prescribed under the one-year period set by Civil Code article3492.

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

The court's analysis inDeFelice reminds that determining which prescriptive period applies to whichclaim is often the most important issue.

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Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

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Insight

When Filing A Lawsuit By Fax, FedEx Is Your Friend

The Louisiana Supreme Court in Petit- Blanc vs. Charles and State Farm, 2021-CC-00094 (La. 4/20/21), ____ So. 3d ______ reaffirmed a strict reading of La. R.S. 13:850. This statute allows the filing of pleadings with a Clerk of Court by facsimile transmission. As currently drafted, the statute provides that the parties shall “deliver” the original document to the clerk within 7 days of the facsimile transmission. In Petit-Blanc, the Supreme Court considered what happens when the original pleading is sent through the mail but not received by the clerk within the 7-day period. Under the facts of the case, the plaintiff’s suit would be prescribed if the act of mailing was insufficient delivery.

Citing Black’s Law Dictionary, the Court found that “delivery” is defined as “the act by which the res or substance thereof is placed within the actual or constructive possession or control of another.” The Court concluded that “merely transmitting an original document within the deadline is insufficient; rather, a litigant must establish the document was delivered to the clerk within the deadline.”

The Court noted that, while the plaintiff established she sent her original petition to the clerk’s office well within the 7-day deadline, “she cannot establish the petition was placed in the actual or constructive possession of the clerk’s office” in a timely manner. As such, the Court found that the “facsimile filing is without force and effect and could not serve to interrupt the prescriptive period.” Accordingly, the Supreme Court granted the writ filed by the defendants, maintained their peremptory exception of prescription, and dismissed the plaintiff’s lawsuit with prejudice.

Insight

Louisiana Changes Prescriptive Periods for Survival and Wrongful Death Actions

Pursuant to House Bill 291, Louisiana modified the prescriptive dates for wrongful death and survival actions. Survival actions are brought to recover damages a deceased person suffered before his or her death. For survival actions, La. Civil Code Article 2315.1 (A) now provides as follows:

If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.

A wrongful death claim can compensate the surviving family members for their own suffering following someone’s death. Similar amendments were made for the wrongful death statute. La. Civil Code Article 2315.2(B) now provides that the right of action for wrongful death prescribes one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.

The changes to these articles went into effect August 1, 2025.

Insight

Court Finds Medical Malpractice Claim Prescribed, Rejecting Argument Based Upon “Discovery Rule”

For medical malpractice claims in Louisiana, the general rule is that a plaintiff has one year from the date of the alleged malpractice to bring his claim for damages. However, La. R.S. 9:5628 also recognizes an exception to this one-year prescription period, when the plaintiff claims he was unaware of the malpractice and there was a delay in the discovery of the alleged malpractice. This is known as the “discovery rule.”

Under the discovery rule, the prescriptive period begins to run on the date the injured party obtains actual or constructive knowledge of facts “indicating to a reasonable person that he or she is the victim of a tort.”^ Constructive knowledge is “whatever notice is enough to excite attention and put the injured person on guard and call for inquiry.”^ When a plaintiff has knowledge of facts strongly suggesting that the complaint may be the result of improper treatment, and the medical provider has not misled the patient, then “the cause of action is reasonably knowable to plaintiff.”*

The court recently examined these principles in In re Singleton, where the plaintiff relied upon the discovery rule to assert a malpractice claim against his medical provider. The plaintiff alleged his physician negligently performed a lumbar procedure in May 2017. The plaintiff initiated proceedings against the medical provider on February 6, 2019, alleging he did not discover the alleged malpractice until February 10, 2018, when he experienced a “sudden onset of excruciating pain.”

In response to the plaintiff’s claim, the medical provider produced evidence to show the plaintiff went to the emergency room on November 21, 2017, with complaints of severe lower back pain that radiated into his hips and legs. Based upon this evidence, the defendant doctor argued the actual date of delayed discovery was November 21, 2017, and that the plaintiff’s claims prescribed because they were filed more than one year after that date.

The court agreed. It held the medical provider met his burden of proof when he presented evidence that “severe” or “excruciating” pain, which allegedly advised plaintiff of his claim, was first experienced in November 2017, not February 2018 as alleged in plaintiffs’ complaint. The plaintiff was unable to produce any evidence to support the allegations in his complaint about the timing of his episode of pain or to refute the medical provider’s arguments. Therefore, the plaintiff could not show his claim of delayed discovery until February 2018 was “reasonable.” The court affirmed that the date of discovery was in November 2017, and therefore the plaintiff’s claims prescribed before suit was filed in February 2019.

References:

In re Singleton, 23-190 (La. App. 5 Cir. 2/28/24), 2024 WL 826169.

^Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502.

*Carter v. Haygood, 892 So.2d 1261, 1273 (La. 2005).

Chelsea A. Payne

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Prescription