Summary
In Martin v. State, 2000-1044 (La.App. 4th Cir. 8/22/01), 811 So.2d 3, writs denied, 2002-0820, 2002-0888 (La. 2/7/03), 836 So.2d 95, a viral hepatitis claim from a 1977 blood transfusion, the court applied the blood shield laws in effect when the decedent died in 1994 and when the suit was filed in 1995.
Summary of this case from Day v. Morehouse General H.Opinion
No. 2000-CA-1044.
August 22, 2001. Opinion on Denial of Rehearing February 20, 2002.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 95-14776, DIVISION "L-15" HONORABLE MAX N. TOBIAS, JUDGE.
THOMAS B. CALVERT, THOMAS B. CALVERT, A.P.L.C., METAIRIE, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
HON. RICHARD P. IEYOUB, ATTORNEY GENERAL, JUDE D. BOURQUE, ASSISTANT ATTORNEY GENERAL, LA DEPT. OF JUSTICE, DIVISION OF RISK LITIGATION, BATON ROUGE, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judges JOAN BERNARD ARMSTRONG, STEVEN R. PLOTKIN and DAVID S. GORBATY)
This is a survival and wrongful death action. The plaintiffs appeal from a dismissal. The only two issues on appeal are (1) whether the survival action prescribed and (2) whether the "blood shield statutes," La.R.S. 9:2797 and La.Civ. Code art. 2322.1, apply to the wrongful death claim. We find (1) that the survival action is not prescribed and (2) that the blood shield statutes do apply to the wrongful death action. Therefore, we will reverse in part, affirm in part, and remand for further proceedings.
The plaintiffs' decedent, Mr. Ferrand, received a blood transfusion at Charity Hospital New Orleans in April 1977. In May 1977, he developed symptoms of viral hepatitis. The viral hepatitis was caused by the blood transfusion. In 1994, he was diagnosed with liver cancer. Liver cancer is a known complication of viral hepatitis and Mr. Ferrand's liver cancer was caused by viral hepatitis. The plaintiffs filed the present action, within a year of Mr. Ferrand's diagnosis of liver cancer, against the State of Louisiana alleging liability for the blood transfusion at the State's Charity Hospital.
The State filed an exception of prescription as to the survival action. "The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim's death and permits recovery only for damages suffered by the victim from the time of injury to the moment of death." Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, 1273 (quoting Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993)).
The State points out that, in this case, the alleged tort (the blood transfusion) took place in 1977 and suit was filed in 1995. The State, citing Fontenot v. ABC Ins. Co., 95-1707 (La. 6/7/96), 674 So.2d 960, and other authorities, also argues that prescription begins to run when a plaintiff knows or should have known that some actionable harm has occurred even if the plaintiff does not realize the full extent of the injury. Additionally, the State points out that Mr. Ferrand's physician, Dr. Davis Silvers, had told his family, and presumably Mr. Ferrand himself, in 1991 that viral hepatitis such as Mr. Ferrand had could progress to liver cancer. Thus, the State argues, the one year prescriptive period began running no later than 1991.
However, the uncontroverted testimony of Dr. Silvers was that, of persons with viral hepatitis, only 1 or 2 per 100,000 will develop liver cancer. Because the chances of Mr. Ferrand's developing liver cancer from his viral hepatitis were so remote, we do not believe that the diagnosis of viral hepatitis, or the knowledge that viral hepatitis could cause liver cancer, was sufficient to start the running of prescription. As we have previously held:
LSA-C.C. art. 3492 provides that delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154, 1156 (La. 1993).
Brumfield v. Avondale Industries, Inc., 95-2260 (La.App. 4 Cir. 5/15/96), 674 So.2d 1159. We do not believe that a 1 or 2 in 100,000 chance of developing liver cancer was "sufficient certainty" to have supported a cause of action for liver cancer. Thus, the fact that Mr. Ferrand had viral hepatitis, knew of his viral hepatitis, and presumably knew that liver cancer was a possible complication of viral hepatitis did not start the running of prescription as to his claim for liver cancer. Instead, prescription began to run on the claim for liver cancer in 1994 when liver cancer was first diagnosed. As suit was filed within one year of the diagnosis of liver cancer, the survival action is not prescribed.
As to the wrongful death action, the plaintiffs argue that the trial court erred by applying the "blood shield statutes," La.R.S. 9:2797 and La.Civ. Code art. 2322.1, to their wrongful death claims because the blood shield statutes while enacted before Mr. Ferrand's death, were enacted after the 1977 blood transfusion. The plaintiffs argue that the blood shield statutes should not be construed to apply "retroactively" so as to be applicable to this case. However, each of the blood shield statutes states that its provisions "apply to all alleged causes of action or other acts, omission, or neglect without regard to the date when the alleged cause of action or other act, omission, or neglect occurred." La.R.S. 9:2797.C and La.Civ. Code art. 2322.1.C. When there is a clear expression of legislative intent as to whether or not a statute applies retroactively, we follow that legislative intent.Walls, 740 So.2d at 1271-72 (citing Cole v. Celotex Corp., 599 So.2d 1058, 1064 (La. 1992)). Therefore, blood shield statutes are applicable to this action despite the fact the blood transfusion took place prior to their enactment.
The plaintiffs have not raised any issue as to the constitutionality of retroactive application of the blood shield statutes. Therefore, we will not decide that question. However, we do note that the plaintiffs wrongful death causes of action did not arise until after the death of Mr. Ferrand, Walls, 740 So.2d at 1273, which was after the enactment of the blood shield statutes.
Lastly, the plaintiffs argue that the blood shield statutes do not apply to the State and that Charity Hospital is a State institution. However, blood shield statutes apply generally to "hospitals" and "hospital blood banks" without regard to whether they are public or private institutions. La.R.S. 9:2707.A and La.Civ. Code art. 2322.1.A.
For the foregoing reasons, we reverse the dismissal of the survival action, affirm the dismissal of the wrongful death action and remand for further proceedings.
REVERSED IN PART; AFFIRMED IN PART AND REMANDED.
ON APPLICATIONS FOR REHEARING.
The defendant's application for rehearing is denied.
The plaintiff's application for rehearing is denied for the following reasons. In our opinion on original hearing, we applied thecurrent versions of the blood shield statutes, La.Civ. Code art. 2322.1 and La.R.S. 9:2797, as they were amended in 1999, because each of those statutes contains a clause stating that they apply "without regard to the date when the alleged cause of action or other act, omission or neglect occurred". However, the plaintiffs have pointed out, by their application for rehearing, that Act 1999, No. 539, which effected the 1999 amendments to the blood shield statutes, states that: "the provisions of this Act shall not affect any legal proceeding filed prior to the [June 30, 1999] effective date of this Act." For reasons unknown to us, this language was not included in the statutes themselves. In any event, the plaintiffs are certainly correct that, because their suit was filed in 1995, the current (1999) versions of the blood shield statute are not applicable to this case.
Instead, the versions of the blood shield statutes which were enacted in 1990, and which were in effect in 1994 when Mr. Ferrand died, and in 1995 when the plaintiffs filed suit, must be applied. Those 1990 versions of the blood shield statutes each state:
The screening, procurement, processing, distribution, transfusion, or medical use for human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue by physicians, dentist, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties of any kind without negligence shall not be applicable to the aforementioned who provide these medical services.
The issue presented to us, which is not addressed in the statutory language, is the applicability of the statutes to a situation in which the blood transfusion occurred prior to the enactment of the statutes, but the death of the plaintiffs' decedent occurred after the statutes were enacted. The plaintiffs argue that application of the 1990 blood shield statutes to the instant case constitutes an impermissible retroactive application. For the reasons stated below, we disagree.
Subsequent to our decision upon original hearing in this case, the Supreme Court issued a decision, Anderson v. Avondale Industries, Inc. 00-2799 (La. 10/16/01), 798 So.2d 93, which is instructive as to the issue before us. Under Anderson, before addressing the issue of whether (in the absence of express statutory direction) a statute is substantive, so that it applies only prospectively, or is procedural or interpretive so that it applies both prospectively and retroactively,see La.Civ. Code art. 6, it must first be determined whether application of the statute in question to the case at hand actually constitutes "retroactive" application of the statute. Following Planiol's treatise and its own prior decision in Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, the Anderson court explained that a statute is considered to operate "retroactively" only "when it goes back to the past either [1] to evaluate the conditions of the legality of an act, or [2] to modify or suppress the effects of a right already acquired". The second situation is clearly not presented by the present wrongful death action because the plaintiffs acquired their rights to a wrongful death cause of action only upon the death of their decedent, Walls, 740 So.2d at 1270-71, which death post-dated the enactment of the 1990 versions of the blood shield statues. Compare Faucheaux v. Alton Ochsner Medical Foundation and Clinic, 470 So.2d 878 (La. 1985) (where injury to plaintiff occurred prior to enactment of blood shield statutes, application of the statutes to him would divest him of rights in contravention of due process). The question, thus, is whether the blood shields statutes "evaluate the legality of an act" in the past.
In the Walls decision, which was discussed in some detail with approval in the Anderson decision, the Supreme Court held that an amendment to the workers' compensation statute, which extended the "exclusive remedy" immunity to employer executive officers acting in the normal course and scope of their employment, when applied to cases arising from pre-amendment acts of executive officers, did not go back into the past to evaluate the legality of past acts. This was because the immunity granted by the amendment was in the nature of an affirmative defense, and shielded certain classes of persons with respect to a specified type of activity, so that it was based upon their "status". Consequently, the amendment was not a law governing conduct. Thus, inWalls, it was held that the amendment was not applied "retroactively" when it protected executive officers with respect to their pre-amendment acts.
The 1990 versions of the blood shield statutes are fairly analogous to the immunity amendment of the Walls case. Specifically, the statutes protect from strict liability certain classes of persons and entities with respect to specified types of activities, so that it is based upon their status. Consequently, the statutes are not laws governing conduct. Thus, the application of the statutes to a transfusion occurring prior to their enactment does not constitute "retroactive" application of the statutes. In sum, based upon Anderson and Walls, the 1990 versions of the blood shield statutes do apply in this case.
APPLICATIONS FOR REHEARING DENIED .