Mrs. Suzette White was hospitalized at West Carroll Hospital in May of 1987 by her treating physician, Dr. Joan Brunson, for medical problems associated with her heart condition. While hospitalized, she suffered an allergic reaction to certain types of hospital tape used by hospital employees.
On January 4, 1988, Mrs. Suzette White and her husband filed suit in the Fifth Judicial District Court (No. 19,599) asserting medical malpractice claims against West Carroll Hospital, Inc. Morris Management, Inc. was added as a party defendant on May 11, 1988. The deposition of Dr. Brunson was taken on May 4, 1988, and that of Suzette White on November 21, 1988. An exception of prematurity was filed by the hospital and heard by the trial judge. On August 31, 1988, the trial judge issued "Reasons for Judgment" indicating that the suit was premature and should be dismissed. The record does not reveal that a judgment was signed by the trial judge. Subsequently, a medical review panel was convened. On March 15, 1989, it rendered an opinion in favor of the hospital.
On April 24, 1989, Mrs. Suzette White and her husband brought the present suit (No. 20,060) against West Carroll Parish Hospital, Inc., West Carroll Hospital, Inc. and Morris Management, Inc. (hospitals) in the same judicial district court alleging the same medical malpractice claims as in the prior suit. Defendants answered, denying the allegations of the petition, and filed a third party demand against Dr. Brunson, alleging that in the event defendants were liable to Mrs. White, then their fault was predicated on the actions or inactions of Dr. Brunson. On November 28, 1989, plaintiffs filed a supplemental and amending petition adding Dr. Brunson and her insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), alleging solidary liability with the hospitals.
Dr. Brunson and LAMMICO filed exceptions of prematurity and prescription to plaintiffs' amending petition. Relying upon La.R.S. 9:5628,
Plaintiffs appealed. On appeal, plaintiffs attempted to supplement the record in this proceeding (No. 20,060) with the record of the prior suit (No. 19,599).
The court of appeal affirmed the judgment of the trial court. Finding that the supplemental record of suit No. 19,599 was not part of the appellate record, it refused to supplement the record on appeal. Second, the court of appeal rejected plaintiff's argument on the application of the doctrine of contra non valentem and found that the trial court did not abuse its discretion in disallowing additional evidence. Third, it refused to apply the provisions of Act 661 of the 1991 Louisiana Legislature retroactively. It affirmed the granting of the exception of prescription dismissing plaintiffs' suit against Dr. Brunson and LAMMICO with prejudice.
The issues presented for our review are (1) whether the existence of suit No. 19,599 served to interrupt prescription against Dr. Brunson and LAMMICO, alleged solidary obligors with the hospitals and whether the record in this suit should be supplemented by the record in suit No. 19,599; (2) whether the doctrine of contra non valentem should apply to prevent the commencement of the running of prescription against Dr. Brunson and her insurer and whether the trial court abused its discretion in disallowing additional evidence on constructive knowledge and concealment of knowledge; and (3) whether Act 661 of the 1991 Louisiana Legislature should be applied retroactively.
INTERRUPTION OF PRESCRIPTION BY THE PRIOR SUIT
For the first time on appeal, plaintiffs argued that prescription of the medical malpractice claims against Dr. Brunson and LAMMICO was interrupted by the filing of suit No. 19,599 against West Carroll Hospital, Inc. and Morris Management, Inc., alleged solidary obligors with Dr. Brunson and LAMMICO, and that such interruption continued as long as that suit remained pending. Plaintiffs argue that the appellate court should have considered the record from suit No. 19,599 or alternatively, that the case should have been remanded to the trial court to permit the introduction of the record from suit No. 19,599 into the record of this suit. They cite as authority La.Code Civ.P. arts. 2164 and 2132.
La.Code Civ.P. art. 2164 provides in pertinent part:
La.Code Civ.P. art. 2132 provides:
The court of appeal rejected these articles as authority to supplement the record on appeal. Because the record of the prior suit was not introduced in evidence in the trial court, the court of appeal would not consider it in the disposition of the appeal.
The court of appeal was correct. To receive the record in prior suit No. 19,599 in evidence in this suit would constitute the taking of evidence and the exercise of original jurisdiction in a matter in which neither the court of appeal nor this court is vested with authority to do so. This is not a matter dealing with correcting erroneous records or supplementing records which are deficient as to matters actually introduced in evidence. Barber v. Testa, 331 So.2d 139, 140 (La.App. 3d Cir.1976). Accordingly, this court cannot consider evidence which was not part of the record made in the trial court in this suit.
In Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463, 464 (1970), this court stated that La.Code Civ.P. art. 2164 authorizes an appellate court to remand a case when it is a just and proper disposition based upon the record. A remand for new evidence must be based upon examination of the merits. It is warranted only when the state of the record is such that the new evidence is likely to affect the outcome of the case. Id. 232 So.2d at 464-65.
The court of appeal, without reasons, rejected plaintiffs' alternative request to remand to the trial court to supplement the record. Volumes III and IV which contain the record in suit No. 19,599 have been included with the record filed with this court. We find it appropriate, based upon Herbert, to examine the record to determine if its inclusion would affect the outcome of the issue of whether or not prescription is interrupted in this suit by the prior suit. If so, then a remand to the trial court to include the evidence and decide the issue of prescription would be warranted.
Our review of the record in suit No. 19,599 reveals that a petition for damages was timely filed on January 4, 1988 by plaintiffs against West Carroll Hospital, Inc. Morris Management was added as a party defendant on May 11, 1988. An exception of prematurity was filed by the hospital on January 28, 1988 and heard on March 31, 1988. On August 31, 1988, the trial judge in his written "REASONS FOR JUDGMENT" indicated that the suit was premature and should be dismissed. The reasons for judgment stated that "[a] judgment should be prepared in accordance with these Reasons for Judgment, submitted to opposing counsel for approval as to form, and submitted to the Court for signing." No judgment is contained in the record. No motion to dismiss the suit against Morris Management is contained in the record.
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. La.Civ.Code art. 3463. A timely filed suit pending against one solidary obligor continues the interruption of prescription as to all purported solidary obligors. Herbert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986).
In Herbert, plaintiff fell and sustained injuries while a patient at a hospital. In 1976, within a year of her injuries, she filed a malpractice suit against the hospital. In 1982, plaintiff executed a receipt and release in favor of the hospital. In 1983, seven years after the filing of the suit against the hospital, plaintiff added Dr. Morgan as a defendant alleging solidary
In the instant case, the first suit (No. 19,599) was timely filed against West Carroll Hospital, Inc. on January 4, 1988. Morris Management was added on May 11, 1988. An exception of prematurity was filed by the hospital and heard by the trial judge. The trial judge in his written reasons for judgment indicated that the suit was premature and should be dismissed and further stated that "a judgment should be prepared in accordance with the reasons for judgment, submitted to opposing counsel for approval as to form, and submitted to the Court for signing." No judgment was entered into the record.
A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment. La.Code Civ.P. art. 1918. Where there are only written reasons and no separate signed judgment, there is no final judgment. Fisher v. Rollins, 231 La. 252, 91 So.2d 28, 31 (1956); Bordelon v. Dauzat, 389 So.2d 820, 822 (La.App. 3d Cir.1980). Thus, under the reasoning set forth in Herbert v. Doctors Memorial Hospital, the claim against the hospital in suit No. 19,599 would still be pending since no signed judgment is contained in the record. Moreover, plaintiffs assert that the claim against Morris Management, Inc. in suit No. 19,599 was never dismissed and is still pending and this claim serves to interrupt prescription as to the claims against Dr. Brunson and LAMMICO.
Since we think plaintiffs' claim that prescription has been interrupted during the pendency of the first suit may well have merit, we see no reason to deny plaintiffs' request to remand this case to the trial court to supplement the record in this suit with that of the first suit. Herbert v. Travelers Indemnity Co., supra; see also Brister v. Southern Baptist Hospitals, Inc., 555 So.2d 641, 644 (La.App. 4th Cir. 1989) (because prescriptive statutes are strictly construed by the courts, justice, fairness and equity required a remand to the trial court for consideration of a previously filed suit in a medical malpractice action and its effect on the running of prescription).
We will now address the remaining issues assigned as error to this court.
CONTRA NON VALENTEM
Plaintiffs contend they were unaware of any medical malpractice claim they may have had against Dr. Brunson until the hospital submitted a medical review panel position paper on March 13, 1989, which suggested for the first time that Dr. Brunson was at fault. Accordingly, plaintiffs assert that, under the doctrine of contra non valentem, prescription would not begin to run in favor of Dr. Brunson and her insurer until that time.
Under the doctrine of contra non valentem, prescription does not begin to run until the plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant. Contra non valentem in medical malpractice suits has been embodied in La.R.S. 9:5628. Prescription
The courts below correctly rejected this argument. They found that plaintiffs knew of the injuries by the end of Mrs. White's hospitalization on May 15, 1987. Dr. Brunson was Mrs. White's treating physician. Plaintiffs took the deposition of Dr. Brunson on May 4, 1988. The courts below found that plaintiffs had actual or constructive knowledge of the relationship between the treating physician and the injuries sustained due to medical treatment prior to the allegations by the hospitals in their third party demand. Since the hospitals' allegations of medical negligence against Dr. Brunson are based on the same medical records and deposition testimony which was always available to plaintiffs, we find it necessary to reject, as did the courts below, the argument that the hospitals attempted to conceal or mislead plaintiffs into inaction. We find it unreasonable for plaintiffs to rely on the allegations of the hospitals in their third party demand against Dr. Brunson as the first notice to plaintiffs of a possible connection between the medical treatment and injuries received. Hence, we reject the application of contra non valentem, finding that the causation between treatment and injuries was reasonably knowable prior to one year from the filing of the instant suit against Dr. Brunson and LAMMICO.
RETROACTIVE APPLICATION OF ACT 661
Plaintiffs argue that La.R.S. 40:1299.41 G and La.R.S. 40:1299.47(A)(2)(a), as amended by Act 661 of the 1991 Louisiana Legislature, should be applied to this case. Act 661 became effective on September 6, 1991, several months after the trial judge granted the exception of prescription in favor of Dr. Brunson and LAMMICO and while the suit was pending in the court of appeal. Plaintiffs contend that the amended statutes should be applied retroactively. Retroactive application would make the amended petition adding Dr. Brunson and LAMMICO as defendants timely filed.
The court of appeal held that the amended statutes could not be applied retroactively to suspend the running of prescription on a claim which had already prescribed prior the effective date of Act 661.
In sum, we conclude that plaintiffs' claims against Dr. Brunson and LAMMICO have prescribed unless the existence of suit No. 19,599 has interrupted the running of prescription on these claims. Therefore, we will remand the case to the trial court to address this issue, giving plaintiffs the opportunity to supplement the existing record in this suit with the record in suit No. 19,599. Since we did not reach the issue of whether Act 661 should be retroactively applied and since it was not before the trial judge, plaintiffs may urge this contention on remand. The right to appeal to the court of appeal is reserved to the parties.
For the reasons assigned, the judgment of the court of appeal affirming the grant of the exception of prescription in favor of Dr. Brunson and LAMMICO is vacated and set aside. The case is remanded to the district court for further proceedings according to law and consistent with the views expressed herein. All costs are assessed against defendants.
LEMMON, J., concurs and assigns reasons.
DENNIS, J., concurs in part and dissents in part with reasons.
DENNIS, J., concurring in part and dissenting in part.
I respectfully concur in the part of this court's decree which vacates the court of appeal's judgment and remands this case for further proceedings. I do not, however, join in the majority's resolution of the other issues. I would explicitly vacate the trial court's judgment and direct it to allow the parties to introduce evidence on interruption of prescription by either prior suit or by contra non valentem. On the latter point, it appears that the trial court incorrectly denied plaintiff's access to court by preventing her from presenting evidence at the trial of the exception of prescription.
Even though the date of the selection of the third panel member was not evident from the record, the trial judge noted that the panel rendered its opinion on March 15, 1989, and suit was not filed against Dr. Brunson and LAMMICO until November 28, 1989, over ninety days after this date. Moreover, plaintiffs did not convene a medical review panel against them within ninety days.