TATE, Circuit Judge:
Pursuant to Fed.R.Civ.P. 54(b) certification, the plaintiff appeals from the dismissal as prescribed of her Louisiana diversity suit against a doctor. The district court held that the suit was time-barred by the prescriptive period applicable to medical malpractice suits. La.R.S. 9:5628 (1975). Subsequent to the district court's decision, a Louisiana intermediate court reached an opposite conclusion based upon Louisiana statute and decisions. Chalstrom v. Desselles, 433 So.2d 866 (La.App. 4th Cir.), cert. denied, 438 So.2d 215 (La.1983). Erie-bound, we reverse, finding that the tolling of prescription was interrupted by a timely-filed suit against a solidary obligor.
Mrs. Billiot, the plaintiff, sues several defendants for damages arising from surgery performed on her on August 1, 1977. The surgery involved allegedly negligent insertion in each of the plaintiff's breasts of an allegedly defectively designed and manufactured mammary prosthesis. On February 13, 1980, one of the prosthesis burst out, and both were required to be surgically removed.
On September 19, 1980, Mrs. Billiot filed suit against the manufacturers; this suit, being filed within a year of the date of the first manifestation of the damages sustained through the allegedly defective design and manufacture of the prostheses, was timely filed within the one-year prescriptive delay allowed to commence actions for damages resulting from delictual offenses. La.Civ.Code arts. 3536, 3537 (1902). See also Coon v. Blaney, 311 So.2d 622, 624 (La.App.3d Cir.1975).
On September 7, 1981, Mrs. Billiot filed an amended complaint joining as defendant the operating surgeon, Dr. Pollock, alleging that the injuries sought resulted both from the defective design and manufacture of the mammary prostheses by the defendant manufacturers and the negligent placement of the prostheses by the operating surgeon, Dr. Pollock. The surgeon was thus impleaded as a defendant more than three years after his allegedly negligent operation in 1977.
The district court dismissed this suit as time-barred, reasoning that the claim against Dr. Pollock was prescribed because neither Dr. Pollock nor any other defendant had been sued within three years from Dr. Pollock's alleged "act, omission, or neglect," as required by La.R.S. 9:5628,
On her appeal, Mrs. Billiot urges that the district court erred in failing to apply Louisiana Civil Code article 2097, which provides: "A suit brought against one of the debtors in solido interrupts prescription with regard to all." See also La.Civ.Code arts. 2090, 3552. She points out that her 1980 suit against the manufacturer had interrupted prescription against those defendants, and she argues that, therefore, this timely suit likewise interrupted prescription against the defendant surgeon, solidarily bound with the manufacturer for the damages caused by their concurring fault, under the literal terms of the code article.
Without serious dispute, Dr. Pollock and the manufacturers of the prostheses are
Subsequent to the district court's ruling in this case, a Louisiana appellate court in Chalstrom v. Desselles, 433 So.2d 866 (La.App. 4th Cir.), cert. denied, 438 So.2d 215 (1983), facing similar contentions and generically identical facts,
REVERSED AND REMANDED.
Article 2092 provides: