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

Until recently, tort claims in Louisiana were subject to a one-year prescriptive period.* In Carollo v. Tulane Univ., the plaintiff’s claim was subject to that one-year prescriptive period, but she filed her suit more than one year after she was injured. Thus, the plaintiff’s claim was dismissed as prescribed. In so holding, the court rejected the plaintiff’s claim that her execution of a waiver form prevented her from timely filing suit for her alleged injuries.

The plaintiff was a member of Tulane’s Swim and Dive Team. As a team member, she signed Tulane’s Concussion Education Form, which concluded with the following statement: “I understand that this release means that, among other things, I am giving up my right to sue the institution for any such losses, damages, injury, or costs that I may incur.” Plaintiff sustained a concussion during practice on January 9, 2021. In her Petition, she alleged she discovered the full extent of her injuries on August 5, 2021. However, she did not file suit until February 17, 2023, which was beyond the one-year prescription period.

When a claim is prescribed on the face of the petition, the burden shifts to the plaintiff to prove her claim is not prescribed. Carollo first argued (1) the Concussion Education Form was a contract, (2) her claim arose from that contract, and (3) personal claims under contracts should be subject to a ten-year prescriptive period under La. C.C. art. 3499. The court rejected this argument because the concussion form did not meet the requirements for a valid contract under Louisiana law.

The plaintiff then argued that the doctrine of contra non valentem should apply. This doctrine provides “prescription does not run against one who is ignorant of the facts upon which their cause of action is based and applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.”

Contra non valentem can apply when there is some condition coupled with a contract that prevented the plaintiff from filing suit. The court rejected the plaintiff’s arguments asserting this theory. Even if Carollo could establish a contract with Tulane under the concussion form, she could not point to any physical, mental, or procedural condition that prevented her from investigating her tort claims and filing suit against it.

Contra non valentem can also apply when the defendant does some act effectually to prevent the plaintiff from availing herself from her cause of action. The plaintiff argued that she was forced to sign the concussion form as a member of the Swim and Dive Team and that the form prevented her from filing suit within the prescriptive period. The court also rejected this argument, holding the plaintiff “knew about her concussion related injuries but did not perform her due diligence within the prescriptive period to determine whether she could file suit.”

Accordingly, the plaintiff’s execution of a waiver form stating she agreed not to sue the defendant for injuries could not interrupt prescription for the plaintiff’s claim.

*La. C.C. art. 3493.1, which went into effect on July 1, 2024, now provides delictual actions/tort claims are subject to a liberative prescription of two years.

References:

Carollo v. Tulane Univ., 2024-0038 (La. App. 4 Cir. 1/9/25), --- So.3d ---, 2025 WL 52557.

In Madden v. Fairburn, the plaintiff amended her petition to assert a UM claim against an insurer based upon the alleged negligence of a new defendant not named in the original petition. The amended petition asserted a new theory of liability but sought the same recovery under the same UM policy.

The issue presented to the Louisiana Court of Appeal for the First Circuit was whether the original petition interrupted prescription for the claim brought against the UM insurer. Because the insurer did not receive notice in the original petition that it could be liable for damages based upon the new defendant’s fault, the court found prescription could not be interrupted.

Madden was a passenger in a vehicle driven by John Seibert that collided with Steven Ray Fairburn. Madden timely filed suit against Fairburn and Capitol Specialty Insurance Corporation (Capitol Specialty), claiming uninsured motorist (UM) coverage under its policy. The Trial Court later dismissed Madden’s claims against Fairburn. While the appeal of that ruling was pending, and over five years after the accident, Madden amended her petition to allege Seibert was at fault and sought the same UM coverage any damages he caused. Capitol Specialty argued the claim brought against it in the amended petition had prescribed.

At the time of the accident, claims for torts/delictual actions had a one-year prescriptive period that commenced from the date of the injury or damage sustained* Claims to recover damages under a UM policy are subject to a prescription period of two years.^ Madden argued her original claim against Capitol Specialty interrupted prescription because her amended claim arose from the same accident and sought to recover damages under the same UM policy.

La. C.C. art. 3462 states that prescription is interrupted when an obligee (Madden) commences an action against an obligor (Capitol Specialty) in a court of competent jurisdiction and venue. However, in Kling v. Hebert, the Louisiana Supreme Court has clarified that the “essence of interruption of prescription by suit is notice to the defendant of the legal proceedings based on the claim involved.” The Kling judges emphasized that prescription serves to protect defendants from unexpected liability years after an event, particularly when a new legal theory or a different alleged tortfeasor is introduced.

The court also considered Trahan v. Liberty Mutual Insurance Company, which held that a claim against an insurer based on one party’s negligence does not interrupt prescription for a later claim against the same insurer based on another party’s negligence. Because Madden’s original suit was based on Fairburn’s negligence, Capitol Specialty did not receive timely notice that she would later seek UM coverage based on Seibert’s alleged fault. Thus, the appellate court ruled in favor of the insurer, affirming the prescription of the plaintiff’s claims.

References:

Madden v. Fairburn, 2024-0513 (La. App. 1 Cir. 12/27/24), --- So.3d ---, 2024 WL 5232995.

Kling v. Hebert, 23- 00257, p. 4 (La. 1/ 26/24), 378 So. 3d 54.

Trahan v. Liberty Mutual Insurance Company, 314 So. 2d 350 (La. 1975).

*La. C.C. art. 3492. See As of July 1, 2024, delictual actions are subject to a two-year liberative prescriptive period, applying to delictual actions that arose or after the effective date.

^ La. R.S. 9:5629.

The question addressed in MR Pittman Group, LLC versus Plaquemines Parish Government, 2015-0396 (La.App. 4 Cir. 12/2/15) was whether the five-year peremptive period set by La. R.S. 9:5607 displaces Louisiana’s general one-year prescriptive period set by La. C.C. art. 3492, when applied to tort claims against design professionals. Finding a contractor’s claim against the project engineers prescribed, the MR Pittman court held that the one-year prescriptive period governs tort claims against design professionals.

La. R.S. 9:5607 explicitly provides a peremptive period that extinguishes all claims against architects, engineers and other design professionals five years after the project is completed, thus limiting design professional liability associated with the project. The MR Pittman plaintiff/contractor argued that the statute also eliminates the one-year prescriptive period and instead creates a special five-year prescriptive period, which allowed the contractor up to five years to bring its claim against the engineers to recover for delay and other extra costs allegedly resulting from deficiencies in the construction plans. This interpretation effectively expands tort liability by increasing the time period for bringing a tort claim from one to five years. In rejecting this argument, the MR Pittman court clarified that under the statute any claimant has no more than five years after project completion to bring suit against the design professional for any cause. However, a tort claimant still has only one year to file suit from the date he “knew or should have known” of damage caused by the alleged wrongful actions of the design professional.

A secondary question addressed in MR Pittman was the date of commencement of the one-year prescriptive period, which under La. C.C. 3492 commences to run from the day damage is sustained. The defendant/engineers argued that prescription commenced when the contractor first became aware of the alleged design deficiencies early in construction, as evidenced by the contractor’s notice to the owner of the deficiencies. The contractor argued that it could not fully appreciate its damages until the change orders were resolved later in the project. Citing Louisiana Supreme Court precedent holding that the quantum of damages need not be certain or fully incurred to trigger commencement of prescription, Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992), the court agreed with the engineers’ position and dismissed the claims.