McBride v. Earl K. Long Memorial Hospital

LEMMON, Justice. This is a medical malpractice action. The issue is whether La.R.S. 9:5628, which sets an outside limit of three years on the applicability of the doctrine of contra non va-lentem agere nullá currit praescriptio in medical malpractice cases, may be used to bar an action which is based on an act or omission that occurred before September 12, 1975, the effective date of the statute. In February, 1971, plaintiff underwent surgery performed by Dr. Robert Leaver and Dr. William Fisher, Jr. In May 1972, plaintiff underwent a second surgery performed by Dr. Fisher alone. In 1976, plaintiff began experiencing debilitating symptoms. His condition was ultimately diagnosed in 1981 as stemming from a staph infection. Within a year of this discovery, plaintiff filed the instant suit, alleging that the staph infection resulted from negligence in the performance of the 1971 and 1972 surgeries. Defendants filed an exception of prescription pursuant to R.S. 9:5628, which requires all medical malpractice claims to be filed within three years of the alleged act or omission. The trial court maintained the exception. Citing Lott v. Haley, 370 So.2d 521 (La.1979), the court of appeal reversed. 459 So.2d 602. We granted certiorari. 497 So.2d 1005. For the reasons assigned in Maltby v. Gauthier, 506 So.2d 1190 (La.1987), the judgment of the court of appeal is affirmed.