IN RE: MEDICAL REVIEW PROCEEDINGS OF DENIELLE POREE (2025)

Writ application granted. See per curiam.

JDH

PDG

JMG

Supreme Court of Louisiana April 23, 2025

SUPREME COURT OF LOUISIANA

No. 2024-C-01590

IN RE: MEDICAL REVIEW PROCEEDINGS OF DENIELLE POREE

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

PER CURIAM

Writ granted. Despite the clear language of LSA-C.C. art. 3467, stating that prescription runs against all persons, the courts of this state have accepted and applied the equitable common law doctrine of contra non valentem to suspend the running of prescription in exceptional circumstances. See Specialized Loan Servicing, LLC v. January, 12-2668 (La. 6/28/13), 119 So.3d 582; Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1268; Corsey v. State, through Dept. of Corrections, 375 So.2d 1319 (La. 1979). Specifically, our courts have recognized that the principles of equity and justice which form the mainstay of the doctrine of contra non valentem demand that prescription be suspended under certain circumstances, including instances wherein the defendant prevents the plaintiff from bringing suit. Wells v. Zadeck, 11-1232 (La. 3/30/12), 89 So.3d at 1150; In re Med. Review Panel Proceeding Vaidyanathan, 98-0289 (La. App. 4 Cir. 9/23/98), 719 So.2d 604; Marin v. Exxon Mobil Corp., 09-2368 (La.10/19/10), 48 So.3d 234. Contra non valentem applies in cases in which a defendant has committed acts, including concealment, fraud, misrepresentation, or other ill practices, which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action or “when the defendant has done some act effectually to lull the victim into inaction and prevent him from availing himself of his cause of action.” Marin, 48 So.3d at 251-52 (Emphasis added). The equitable nature of the circumstances in each individual case determines whether the doctrine is to be applied. Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La. App. 1 Cir. 1970). SeeWells v. Zadeck, 89 So.3d at 1154 (citing Nathan v. Carter, 372 So.2d 560, 563 (La. 1979)); see also Carter v. Haygood, 892 So.2d at 1268.

Respondents failed to comply with statutory time delays, negotiated in bad faith, abused professional courtesies extended to them in good faith, and requested extensions they did not need and never intended to honor. Rather, although applicant filed her lawsuit in September, well ahead of the February prescription date, respondents obtained extensions as a delay tactic designed to mislead the applicant and lull her into inaction in order to prevent the filing of a default judgment or request for review by a medical review panel. It appears respondents’ intent was to conceal their status as qualified healthcare providers until after prescription had run on the applicant's claims against them, as shown by the fact that respondents filed the exception immediately after prescription had run. The respondents took calculated actions to lull the applicant into inaction in order to escape liability and deprive her of her day in court. The facts and equitable considerations in this case therefore support the application of contra non valentum to suspend the prescriptive period. Consequently, the applicant's request for a medical review panel was timely and the lower courts erred in sustaining the exception of prescription. As such, the exception of prescription filed by respondents is overruled and this matter is remanded to the district court for further proceedings.

WRIT GRANTED; EXCEPTION OF PRESCRIPTION OVERRULED; REMANDED.

To reach what it considers an equitable result, the majority opinion does substantial damage to the doctrine of contra non valentem. Before today, this court consistently held the doctrine cannot be used to excuse a party's own negligence in failing to timely preserve his cause of action. As the Marin court explained:

[T]he doctrine of contra non valentem only applies in exceptional circumstances. When this jurisprudential doctrine was first recognized, we specifically clarified that [t]his principle will not exempt the plaintiff's claim from the running of prescription if his ignorance is attributable to his own wilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.

Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So. 3d 234, 245–46 (emphasis added; citations and internal quotation marks omitted); see also Renfroe v. State ex rel. Dep't of Transp. & Dev., 01-1646 (La. 2/26/02), 809 So. 2d 947, 953.

More specifically, before today, the third category of the doctrine—when the debtor himself has prevented the creditor from availing himself of his cause of action—applied only if “plaintiff's delay in bringing suit is not willful or the result of his own negligence.” Marin, 48 So. 3d at 252. To implicate the third category of the doctrine, “the plaintiff must have been reasonable in his or her inaction.” Marin, 48 So. 3d at 252.

No party disputes plaintiff had a readily available means of preserving her cause of action and determining whether defendants were qualified healthcare providers under the Medical Malpractice Act. Our law provides a procedure used by practitioners on a daily basis in medical malpractice cases: file a request for a medical review panel with the Division of Administration. La. R.S. 40:1231.8A. Within 15 days of the filing, the Patients Compensation Fund Oversight Board is statutorily required to “[c]onfirm to the claimant ․ whether or not the named defendant or defendants have qualified under this Part.” La. R.S. 40:1231.8A(3). The filing of the request “shall suspend the time within which suit must be instituted ․ until ninety days following notification ․ to the claimant or his attorney of the issuance of the opinion by the medical review panel.” La. R.S. 40:1231.8A(2)(a). If the defendant is not a qualified healthcare provider, the filing of the request suspends prescription “until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part.” La. R.S. 40:1231.8A(2)(a).

The majority opinion points to nothing that prevented plaintiff from using this process. By reasonable diligence, plaintiff could have easily (1) preserved her cause of action and (2) learned whether defendants were qualified healthcare providers. Contrary to the majority's suggestion, plaintiff was not at the mercy of defense counsel to provide this information to avoid prescription. The majority maintains defendants “conceal[ed] their status as qualified healthcare providers” but fails to identify anything, not one act or communication, where defendants denied they were qualified healthcare providers or otherwise misrepresented their status, either before or after plaintiff filed her suit.

The majority instead finds defendants “lulled [plaintiff] into inaction” by requesting informal extensions of time to file responsive pleadings. Even accepting this factual finding as true—a significant leap considering this court has no evidentiary record before it—that finding, alone, is not sufficient to apply the third category of contra non valentem. As emphasized in Marin, regardless of whether a defendant misled the plaintiff, the third category of contra non valentem only applies if the plaintiff exercised reasonable diligence to preserve her cause of action. See Marin, 48 So. 3d at 252. In Marin, this court found contra non valentem inapplicable even though the defendant in that case misled the plaintiff about the cause of their property damage. The court explained, “While Exxon misled plaintiffs by not disclosing the extent of the contamination when they learned of it, they certainly did nothing to prevent plaintiffs from investigating the cause of the sugarcane loss for themselves.” Marin, 48 So. 3d at 252. Here, defendants did nothing to prevent plaintiff from investigating whether defendants were qualified healthcare provider under the Act.

The majority avoids the due-diligence requirement by omitting from the Marin quotations and citations the following requirement for the application of the third category of contra non valentem repeatedly emphasized by the court: “plaintiff's delay in bringing suit is not willful or the result of his own negligence.” Marin, 48 So. 3d at 252-53. Here, plaintiff's delay in timely filing a request for a medical review panel was the result of her own negligence. While I am sympathetic to the plaintiff's plight, I cannot join the majority in blaming defense counsel for it. The doctrine of contra non valentem does not apply.

Weimer, C.J., dissents and would grant and docket. Crain, J., dissents and assigns reasons. McCallum, J., concurs in the result. Cole, J., concurs in the result.