In Louisiana, a general tort claim has a prescriptive period of one year. This means that the plaintiff must file a claim within one year of the injury bringing about the claim. The prescriptive period has been implemented by the Louisiana legislature in LSA-C.C. art 3492 and a brief summary gives us the following guidelines:
These actions must be filed within one year. The year mark starts on the day that the injury or damage occurs on however, there are some exceptions to this rule of one year. The exceptions would be in the individual is a minor or actions involving individuals with permanent disability, brought under the Louisiana Products Liability Act or the law of the state which governs actions of product liability at the time the injury or damage has occurred.
Thus, no one except a child or interdict can complain of the prescriptive period because it is clearly established by law. All attorneys are aware of this period and any action, in order to be timely, must be filed within the one year period. However, Louisiana law also states that this period can be altered by legislation. This means that article 3492 is a fall back provision for cases where the legislature has not created another sort of prescriptive period. Different prescriptive periods are implemented due to the nature of the injury or damage. For example, medical malpractice claims also have a general one year prescriptive period, but the legislation creates leeway to bring a claim past the one year prescriptive period. The prescriptive period for a survival claim based on medical malpractice is implemented by LSA-R.S.9:5828 as follows:
No action concerning injuries, damages or even death against any physician…[or] hospital, if based on a breach of contract or a tort, which occurred while a patient was under their care, must be brought before the statute of limitations of three years is met. Meaning that any claim that may have occurred due to neglect, an omission or perhaps an act must be brought within three years of that date of occurrence, unless otherwise filed within a year from the date or the discovery date of the alleged neglect, omission or act, which case the claim would meet this limitation statute.
This means that in medical malpractice claim, in a circumstance where the injury that resulted from the malpractice is not discovered, or if it in fact could not be discovered within a year of the alleged treatment that was negligent, the legislature decided that the plaintiff should still be able to bring the claim once the injury is finally discovered, even if it is more than a year after the negligent treatment was given. However, the claim must still be filed within an overall three year period. In a recent case, Hammond Ex Rel v. Saint Francis Medicine, a court clarified how a malpractice claim would fit into the category allowed to extend beyond a year of the negligent treatment. Mrs. Hammond sued St. Francis and Dr. Joiner on behalf of her daughter and granddaughter. Her daughter was sent to St. Francis because of an increased heart rate. St. Francis subsequently sent her to Louisiana State University Health Sciences Center-Monroe. When she arrived here, she discovered that her fetus had died. She was then sent to a nursing home where her condition deteriorated further until she was eventually pronounced dead.
Her mother, Mrs. Hammond, filed the medical malpractice claim more than one year after the treatment given to her daughter at St. Francis. At trial, Mrs. Hammond claimed that she did not know that there was any medical malpractice on the part of St. Francis. The evidence was to the contrary. Within months of her daughter’s death, she had filed a claim with the medical review board against other defendants, not including St. Francis. Clearly, she had some indication that someone did something to cause the deterioration of her daughter’s condition. Further, she provided no evidence that showed that she was unaware of any negligence on the part of St. Francis. The Court held that they could not make a determination based on a mere assertion from Mrs. Hammond that she did not know that St. Francis could be liable. Some evidence needed to be provided in order to claim lack of knowledge which could have allowed her three years to file her claim. Since there was no evidence that she lacked knowledge of St. Francis’ alleged liability, her claim falls into the one year prescriptive period which means her claim had prescribed.