Prescription Runs on Ouachita Parish Medical Malpractice and Wrongful Death Survival Action Claim

The plaintiff in this case, Suzanne Hammond, was the mother of Latousha Tillman and the grandmother of her stillborn child, Ladaizya Tillman. On March 31, 2004, Ms. Tillman arrived at the St. Francis Hospital emergency room complaining of pain, nausea, and vomiting. She was 25 years old and 23 weeks pregnant. Dr. Joiner treated her and found her heart rate, liver enzymes, and glucose to be elevated, with decreased kidney function. Ms. Tillman was then transferred to another hospital, where problems with her unborn child were discovered. The fetus was found to have no heartbeat and labor was induced 3 days later, on April 4, 2004.

After the birth, Ms. Tillman’s condition dramatically declined and she was placed on life support. She then went into a persistent vegetative state and was pronounced dead on January 24, 2005, after the medical staff was unable to resuscitate her. Ms. Hammond sued St. Francis and Dr. Joiner for a survival action and a wrongful death action with regard to her daughter, and a wrongful death lawsuit as to her stillborn granddaughter.

A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. If there is even a tiny amount of evidence showing any pain of suffering by a victim before her death, damages are warranted.

A wrongful death action, on the other hand, compensates the beneficiaries, usually family members, for their own injuries which they suffer from the moment of the victim’s death on. The wrongful death action belongs to the survivors (in this case, Ms. Hammond), not the victim.

On January 20, 2006, Ms. Hammond filed a request for a medical review panel, alleging that St. Francis Hospital and Dr. Joiner had committed negligence. This was more than a year from the death of the stillborn child and more than a year after Dr. Joiner last treated Ms. Tillman. Under LSA-R.S. 9:5628, a plaintiff may bring a medical malpractice action within one year from the date of the alleged act or one year from the date of discovery, with a three-year total limit.

With respect to the survival claim as to Ms. Tillman, the trial court found that the claim had prescribed, that is, Ms. Hammond filed her claim too late. Article 3492 of LSA-C.C. clearly states that prescription runs against people who are absent or incompetent, including minors and interdicts (those who have been ruled incompetent to care for themselves). There is an exception for products liability cases, but that exception did not apply here.

Ms. Hammond tried to argue that the three-year limit applied, but did not show in the court-filed pleadings that there was some reason for her not to file within the one-year limit. Instead, she should have filed any survival action for Ms. Tillman within a year of the date of discovery of the malpractice, and any wrongful death action for the stillborn child within a year of the child’s death on April 1, 2004. It is the plaintiff’s burden to show that the time limits have not run, and in this case, Ms. Hammond did not state the date of discovery. Therefore, the survival claim with regard to Ms. Tillman and the wrongful death claim with regard to the stillborn child were dismissed.

The wrongful death action with regard to Ms. Tillman had not prescribed, however, because it arose on January 24, 2005, at Ms. Tillman’s death, and Ms. Hammond filed for a medical review panel on January 20, 2006. The case was affirmed and remanded for the wrongful death action with regard to Ms. Tillman to go forward.

If you believe that you have been the victim of medical malpractice, the time limit to file a lawsuit is very short. Call the Berniard Law Firm today toll-free at 1-866-574-8005 and speak with a lawyer who can help you decide whether to pursue your case.

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