1268 La. 891 SOUTHERN REPORTER, 2d SERIES - The Truitt Law ...

1268 La. 891 SOUTHERN REPORTER, 2d SERIES

make a finding with regard to the defen-dant’s credibility. While the appellatecourt was correct that the district courtdid not make an explicit statement as tothe defendant’s credibility, the districtcourt unquestionably discounted the de-fendant’s testimony when it stated that ithad ‘‘heard no testimony that would re-enforce the notion that the defendant hadany expectations of privacy or, if you will,privilege, when he approached this partic-ular minister.’’ Given that the defendanttestified he had expected his statement toremain confidential, implicit within the dis-trict court’s factual finding is the determi-nation that the defendant’s testimony onthis issue was not credible.

Accordingly, I concur in the majority’sconclusion that the district court did notabuse its discretion in denying the motionto suppress the evidence. On the recordbefore this court, I find no error in thedistrict court’s factual appreciation thatthe defendant, who is invoking the clergy-communicant privilege, failed to establishthat his communication to Reverend Wool-ridge was ‘‘not intended for further disclo-sure TTT,’’ and thus was ‘‘confidential’’ asdefined in La.Code Evid. art. 511(A)(2).

S 1KIMBALL, Justice, concurring inresult.

I agree with the result reached by themajority in this case; however, in my view,Deonta Gray did not waive the privilege orindicate that he did not have any expecta-tion of privacy in his statement to Rever-end Woolridge when he remained silentduring Reverend Woolridge’s telephonecall to Pastor Sniff, his superior at thechurch. In my opinion, a clergyman’s dis-closure of confidential information to hissuperior solely for advice on what heshould do in regards to this imparted in-formation should not be considered a dis-closure to a third-party which would defeatthe privilege for confidential communica-tions to a clergyman. This situation is

analogous to that when an associate attor-ney seeks the advice of his supervisingpartner or attorney regarding a clientcommunication, and would never be con-sidered a waiver of the attorney-clientprivilege. See La. C.E. art. 506. Like-wise, Reverend Woolridge’s disclosure ofDenota’s statement to his superior, PastorSniff, for the purpose of determining hisnext course of action in this sensitive mat-ter should not be considered a waiver ofthe clergyman’s privilege.

, 2004-0620, 2004-0647, 2004-0684 (La.

1/20/05)

Ginger BAILEY, et al.

v.

Dr. Gregory KHOURY, et al.

Nos. 2004–CC–0620, 2004–CC–0647, 2004–CC–0684.

Supreme Court of Louisiana.

Jan. 20, 2005.

Background: Mother, individually and onbehalf of child born with birth defects,brought medical malpractice action againstphysicians who prescribed medication thatallegedly caused the birth defects andpharmacies who dispensed the medication.The Circuit Court, Orleans Parish, No. 99-11412, C. Hunter King, J., denied theclaims of prescription filed by physiciansand pharmacies. Physicians and pharma-cies filed applications for supervisorywrits. The Court of Appeal granted theexceptions and dismissed the lawsuit. TheSupreme Court, 845 So.2d 1037, vacatedorder granting writs, and remanded forreargument before a five-judge panel. Onremand the Court of Appeal, 868 So.2d

1269La.BAILEY v. KHOURYCite as 891 So.2d 1268 (La. 2005)

821, affirmed. Physicians and pharmaciesfiled applications for supervisory writs.Holdings: The Supreme Court, Calogero,C.J., held that:

(1) as a matter of first impression, moth-er’s medical malpractice claims againstphysicians and pharmacies, which werefiled on behalf of child being born withbirth defects, accrued from the datethat child was born alive, and

(2) mother’s medical malpractice claimsagainst physicians and pharmaciesbased on the child’s birth defects ac-crued, from the date that child wasborn alive.

Affirmed.

Victory, J., concurred in part and dissent-ed in part with reasons.

Kimball, J., concurred in part and dissent-ed in part for the reasons assigned byVictory, J.

Knoll and Weimer, JJ., concurred and as-signed reasons.

1. Limitation of Actions O5(1)Generally, prescription statutes are

strictly construed against prescription andin favor of the claim sought to be extin-guished by it.

2. Limitation of Actions O195(3)The burden of proof on the prescrip-

tion issue lies with the party asserting itunless the plaintiff’s claim is barred on itsface, in which case the burden shifts to theplaintiff.

3. Limitation of Actions O43Prescription cannot run against a

cause of action that has not accrued orwhile that cause of action cannot be exer-cised.

4. Negligence O202Under Louisiana law, for a negligence

cause of action to accrue, three elementsare required: fault, causation and damages.

5. Limitation of Actions O95(3)Liberative prescription of one year

generally begins to run when the victimknows or should know of the damage, thedelict and the relationship between them.

6. Limitation of Actions O95(3)Prescription commences when a plain-

tiff obtains actual or constructive knowl-edge of facts indicating to a reasonableperson that he or she is the victim of atort.

7. Limitation of Actions O55(1)Damage is considered to have been

sustained, within the meaning of the stat-ute governing prescription in tort actions,only when it has manifested itself withsufficient certainty to support accrual of acause of action. LSA-C.C. art. 3492.

8. Limitation of Actions O95(12)Mother’s medical malpractice claims

against physicians and pharmacies, whichwere filed on behalf of child being bornwith birth defects, accrued, and the one-year limitations period began to run, fromthe date that child was born alive, eventhough an ultrasound revealed prior tobirth that child would be born with birthdefects. LSA-C.C. art. 26, 3468.

9. Limitation of Actions O95(12)Mother’s medical malpractice claims

against physicians and pharmacies basedon the child’s birth defects accrued, andthe one-year limitations period began torun, from the date that child was bornalive, even though mother knew prior tochild’s birth that child would be born withbirth defects. LSA-R.S. 9:5628.

10. Limitation of Actions O95(3)Determination of when prescription

commences under the discovery rule de-pends on at least two primary factors: (1)the date on which the plaintiff gained actu-al or constructive knowledge of ‘‘facts indi-


cating to a reasonable person that he orshe is the victim of a tort,’’ and (2) the dateon which the tortious act actually producesdamage.

11. Limitation of Actions O95(1)Determination of when prescription

commences under the discovery rule is afact-intensive inquiry.

12. Limitation of Actions O43Prescription will not begin to run at

the earliest possible indication that a plain-tiff may have suffered some wrong.

Adams and Reese, Edward J. Rice, Jr.,Arthur F. Hickham, Jr., New Orleans,Counsel for Applicant in No. 2004–CC–0620.

Mang, Batiza, Godofsky & Penzato,Deborah I. Schroeder, Nakisha Ervin–Knott, The Truitt Law Firm, Jack E.Truitt, Madisonville, Broussard and Asso-ciates, Kevin K. Gipson, Martin L. Brous-sard, Jr., New Orleans, Hemelt & Foshee,Deborah C. Foshee, Covington, Seale, Dai-gle & Ross, Mark E. Seamster, Covington,Counsel for Respondent in No. 2004–CC–0620.

Mang, Batiza, Godofsky & Penzato,Deborah I. Schroeder, Nakisha Ervin–Knott, Counsel for Applicant in No. 2004–CC–0647.

Adams and Reese, Edward J. Rice, Jr.,Arthur F. Hickham, Jr., New Orleans, TheTruitt Law Firm, Jack E. Truitt, Madison-ville, Broussard and Associates, Kevin K.Gipson, Martin L. Broussard, Jr., NewOrleans, Hemelt & Foshee, Deborah C.Foshee, Covington, Seale, Daigle & Ross,

Mark E. Seamster, Covington, Counsel forRespondent in No. 2004–CC–0647.

The Truitt Law Firm, Jack E. Truitt,Madisonville, Counsel for Applicant in No.2004–CC–0684.

Adams and Reese, Edward J. Rice, Jr.,Arthur F. Hickham, Jr., New Orleans,Mang, Batiza, Godofsky & Penzato, Debo-rah I. Schroeder, Nakisha Ervin–Knott,Broussard and Associates, Kevin K. Gip-son, Martin L. Broussard, Jr., New Or-leans, Hemelt & Foshee, Deborah C.Foshee, Covington, Seale, Daigle & Ross,Mark E. Seamster, Covington, Counsel forRespondent in No. 2004–CC–0684.

S 1CALOGERO, Chief Justice.Rapid advances in many scientific dis-

ciplines have led to the application ofnew methods and technologies in everyaspect of medicine. Often these newcapabilities require fundamental changesin legal analysis or raise legal questionsthat never before have required consid-eration.1

This case aptly demonstrates the truthof the above statement, as the primaryissue involves the impact on the parties’rights, of information gained from ad-vances in medical technology that raises alegal question ‘‘that never before [has] re-quired consideration.’’ In fact, our re-search indicates that the issue presentedmay be one of first impression, not only inthe State of Louisiana, but in every legaljurisdiction in the United States. Thecourt in this case is called upon to decidewhether the time limitation for filing aclaim seeking recovery of damages arisingfrom birth defects can be considered tocommence at a time prior to the child’s livebirth when, because of information gained

1. Hutton Brown, Miriam Dent, L. Mark Dyer,Cherie Fuzzell, Lanita Gifford, Sam Griffin,A.G. Kasselberg, M.D., Jayne Workman, andMelinda L. Cooper, ‘‘Special Project: Legal

Rights and Issues Surrounding Conception,Pregnancy, and Birth,’’ 39 Vand. L. Rev. 537,605 (1986).


from an ultrasound of the fetus, the un-born child’s parent was S 2told both that thechild had birth defects and that those de-fects were probably caused by the moth-er’s ingestion of drugs prescribed and dis-pensed by defendants. This argument isonly the most recent of many creative legalarguments flowing from rapidly-changingmedical and scientific advances which, overthe last century, have transformed the le-gal principles applicable to liability forbirth defects and prenatal injuries.2

The plaintiff in this case is the mother ofa child who suffered birth defects, alleged-ly as a result of her ingestion of the pre-scription drug Depakote during the earlydays of her pregnancy. The mother filedsuit in medical malpractice against varioushealth-care providers who prescribed thedrug, and in tort against various pharma-cies that dispensed the drug, both in herindividual capacity and in her representa-tive capacity on behalf of the child. Wegranted these consolidated applications forsupervisory writs to determine whetherprescription on both of the plaintiff’sclaims commenced, as the defendantsclaim, on the date prior to the child’s birthwhen the mother was told that the childwould have defects at birth, probably re-sulting from her ingestion of Depakoteduring pregnancy, or, as the plaintiffclaims, on the later date when the childwas born, or whether different prescriptiveperiods might apply to the plaintiff’s two

claims. A divided panel of the court ofappeal held that prescription commencedon the mother’s claim on behalf of thechild, and on the S 3mother’s individualclaim, on the date of the child’s birth.Accordingly, the court of appeal affirmedtrial court judgments denying exceptionsof prescription filed by the defendants.The court of appeal did not differentiatebetween the two claims in its decision.

For the reasons explained below, weagree with the court of appeal’s holdingthat prescription on both the mother’sclaim on behalf of the child and the moth-er’s individual claim commenced on thelater of the two dates—i.e., the date whenthe child was born. Because the mother’soriginal petition regarding the two claimswas filed less than a year from the date ofthe child’s birth, we affirm the court ofappeal judgment denying defendants’ per-emptory exceptions of prescription.

FACTS AND PROCEDURALHISTORY

Plaintiff, Ginger Bailey, a psychiatric pa-tient with a long history of treatment andhospitalization for bipolar disorder, hadbeen treated with various prescriptionmedications over the years. From thedate of her diagnosis sometime around1991 until 1997, Ms. Bailey was treated byvarious physicians and mental health facili-ties throughout the greater New Orleansarea. During that entire period, during

2. This transformation has been described asfollows:

Until recent times, the general rule of lawwas that in the absence of a statutory provi-sion requiring a different result, a prenatalinjury afforded no basis for an action in dam-ages in favor of the child. Today, however,the right of a child to bring suit to recoverdamages for prenatal injuries tortiously in-flicted is broadly recognized, the general rulebeing that an action may be maintained forsuch prenatal injuries where the child wassubsequently born alive. In this regard, it hasbeen said that the law has come full circle in

granting a surviving infant a cause of actionfor prenatal injuries; where the court previ-ously spoke of the unborn child today itspeaks of the unborn plaintiff.62A Am.Jur.2d Prenatal Injuries; WrongfulLife § 8. See also Roland F. Chase, J.D., An-notation, Liability for Prenatal Injuries, 40A.L.R.3d 1222, § 2(a), which notes that thelaw of prenatal injuries has ‘‘swung from poleto pole,’’ and describes that swing in greatdetail, and Beth Driscoll Osowski, ‘‘The Needfor Logic and Consistency in Fetal Rights,’’ 68N.D.L.Rev. 171, 1736 (1992).


which Ms. Bailey had two children, shewas taking various types of drugs to treather symptoms, which included hallucina-tions, paranoia and depression. Neither ofher two eldest children suffered any ad-verse effects arising from her ingestion ofthe various medications.

In March 1997, Dr. Robert Ancira atTransitional Hospital Corp. of New Or-leans (‘‘THC’’) prescribed Depakote, whichis ‘‘one of the most widely prescribed anti-seizure drugs,’’ primarily used to treat epi-lepsy, but also used to treat bipolarS 4disorder.3 When Dr. Gregory Khoury atJo Ellen Smith Psychiatric Center laterbecame Ms. Bailey’s treating physician, hecontinued to prescribe Depakote. Ms.Bailey purchased her prescription drug,Depakote, from Walgreen’s Louisiana Co.,Inc. and Eckerd Corporation. Depakote‘‘has been linked to birth defects and lowerIQs among children exposed to it in thewomb,’’ with the most common birth defectbeing spina bifida.4 Despite the fact thatshe was of child-bearing age, Ms. Baileyclaims that none of the defendant physi-cians or pharmacies warned her of the

dangers of birth defects arising from theuse of Depakote during pregnancy. Ms.Bailey further claims that she had neverbeen told during her years of treatmentthat any of the drugs she was taking totreat her symptoms could cause birth de-fects.

Several months after she first startedtaking Depakote, in late July or early Au-gust 1997, Ms. Bailey learned that shewas pregnant with her third child. Atthat time, Ms. Bailey was advised by anurse at the New Orleans Mental HealthCenter to discontinue all medications andto contact an obstetrician. The pregnancywas confirmed by an obstetrician, Dr.Wayne Grundmeyer, who advised Ms. Bai-ley on September 25, 1997, of the risk thather child would suffer birth defects causedby the drugs used during her pregnancy,particularly her use of Depakote. Dr.Grundmeyer’s fears were confirmed whenan ultrasound 5 performed by Dr. ThomasAlbert on October 25, 1997, revealed thatMs. Bailey’s unborn child had developedbirth defects (specifically, a neural tubedefect 6) and that the child would probably

3. Salynn Boyles, ‘‘Antiseizure Drug DepakoteUnder Fire: Evidence Linking Depakote toBirth Defects is Mounting,’’ WebMD Health,December 7, 2004, athttp://my.webmd.com/content/arti-cle/98/104650.htm.

4. Salynn Boyles, ‘‘Seizure Medication Linkedto Birth Defects: Problems More Common inChildren of Women Taking Depakote,’’WebMD Health, April 29, 2004, athttp://my/webmd.com/content/arti-cle/86/99035.htm.

5. Interestingly, no evidence of record indi-cates that an amniocentesis was performed onMs. Bailey to confirm the existence of thesuspected birth defects. Our research indi-cates that an initial maternal serum tripletest, followed by high resolution fetal ultra-sound and amniocentesis make up a compre-hensive diagnosis for spina bifida and otherneural tube defects. See ‘‘Spina Bifida,’’

WebMD Health, athttp://my.webmd.com/hw/raising a fami-ly/hw170000.asp; ‘‘Amniocentesis,’’ WebMDHealth, at http://my.webmd.com/hw/be-ing pregnant?hw1810.asp.

6. This condition has been described as fol-lows:

A neural tube defect (NTD) is a birth defectthat occurs when the spine, the brain, or thebone and skin that protect them do not devel-op properly. The neural tube is the part of adeveloping fetus that grows into the spinalcord and brain. Normally, the bones of theskull and spine grow around the brain andspinal cord, and then skin covers the bones.A neural tube defect occurs when this processdoesn’t happen normally.‘‘Neural Tube Defect,’’ WebMD Health, athttp://my.webmd.com/hw/health guidea-toz/stn 166112.asp?navbar=hw198129. Spinabifida is the most common neural tube defect.Id.


suffer a number of complications. On No-vember 28, 1997, Ms. Bailey was informedthat her unborn child had developed birthS 5defects and that the child’s condition hadprobably been caused by valproic acid ex-posure 7 resulting from her use of Depa-kote. Ms. Bailey was further advised thatshe should have been counseled againstbecoming pregnant while taking that med-ication.

On March 20, 1998, Jada Nacaya Baileywas delivered by caesarian section. Atbirth, Jada suffered from a number ofdefects, including Cornelia de lange syn-drome,8 spina bifida,9 and hydrocephalus,10

with accompanying features and sympto-mology, including paralysis from the waistdown and loss of muscle control. S 6Almosta year after Jada’s birth, on March 17,1999, Ms. Bailey, individually and in herrepresentative capacity on behalf of Jada,filed a medical malpractice action againstDr. Khoury, Jo Ellen Smith PsychiatricCenter, Dr. Ancira, and THC, alleging fail-ure to warn of known side effects of Depa-kote, as well as other acts of medical mal-

practice. In her petition, Ms. Bailey madethe following allegations relative to dam-ages:

That petitioner contends she is enti-tled to damages which would compen-sate the minor child and her for thesevere disabling injuries received as wellas any and all medical expenses in-curred, either in the past, present and/orfuture; mental and physical anguish en-dured, past, present and future; loss ofquality of life; as well as, loss of possi-bility of earning potential and income,past present and future; and permanentdisability of the minor child. Additional-ly, claimant is entitled to damages forany resulting disabilities on behalf of theminor child and for any other damagesto which she and the minor child may beentitled under the jurisprudence of theState of Louisiana.

Two days later, on March 19, 1999, Ms.Bailey filed her first amending and supple-mental petition, naming Walgreens andEckerd as tort defendants, alleging thatthey were solidarily liable with the medical

7. Valproic acid is apparently one of the ingre-dients in prescription Depakote. Exposure tovalproic acid by a fetus can cause a ‘‘rarecongenital disorder’’ called Fetal ValproateSyndrome. ‘‘Fetal Valproate Syndrome,’’WebMD Health, athttp://my.webmd.com/hw/raising a fami-ly/nord1007.asp. ‘‘Symptoms of this disordermay include spina bifida, distinctive facialfeatures, and other musculoskeletal abnor-malities.’’ Id.

8. Cornelia de Lange syndrome is ‘‘a rare ge-netic disorder that is apparent at birth.’’‘‘Cornelia de Lange,’’ WebMD Health, athttp://my.webmd.com/hw/raising a fami-ly/nord30.asp. ‘‘Associated symptoms andfindings’’ of Cornelia de Lange typically in-clude the following:

delays in physical development before andafter birth (prenatal and postnatal growthretardation); characteristic abnormalitiesof the head and facial (craniofacial) area,resulting in a distinctive facial appearance;

malformations of the hands and arms (up-per limbs); and mild to severe mental retar-dation.’’

Id.

9. ‘‘Spina bifida is a birth defect in which thebones of the spine (vertebrae) do not formproperly around the spinal cord.’’ ‘‘Spinabifida,’’ WebMD Health, athttp://my.webmd.com/hw/raising a fami-ly/hw169958.asp. The most severe form of spi-na bifida, spina bifida manifesta, ‘‘often isassociated with nerve damage that can resultin problems with walking, bladder control,and coordination.’’ Id.

10. ‘‘Congenital hydrocephalus is a buildup ofexcess of cerebrospinal fluid (CSF) within thebrain that is present at birth.’’ ‘‘Congenitalhydrocephalus,’’ WebMD Health, athttp://my.webmd.com/hw/raising a fami-ly/hwl98129.asp. ‘‘The excess fluid can in-crease pressure in the baby’s brain, possiblyresulting in brain damage and loss of mentaland physical abilities.’’ Id.


malpractice defendants named in her origi-nal petition.

Dr. Ancira filed an exception of prema-turity based on the provisions of La.Rev.Stat. 40:1299.47(B)(1)(a), which requiresthat medical malpractice actions be pre-sented to a medical review panel prior tothe filing of suit. Dr. Ancira was subse-quently dismissed by consent of the par-ties. Dr. Khoury was also dismissed with-out prejudice on Ms. Bailey’s motion. Ms.Bailey later filed a Petition to InstituteDiscovery in the medical review panel pro-ceeding.11

S 7Walgreens filed a peremptory excep-tion of prescription, arguing that the one-year prescriptive period on the tort claimsfiled by Ms. Bailey, individually and onbehalf of Jada, commenced when the ultra-sound confirmed the suspected birth de-fects and Ms. Bailey was informed of thosedefects, on or shortly after October 28,1997 (some six months before Jada wasborn). Eckerd later filed a motion forsummary judgment,12 seeking dismissal ofMs. Bailey’s claims on the basis of pre-scription.

Dr. Khoury filed an exception of pre-scription in the medical review panel dis-covery suit, citing the provisions of La.Rev.Stat. 40:1299.47(B)(2)(a), which allow aqualified health-care provider to raise suchan exception during the pendency of the

medical review panel proceeding. Dr. An-cira and Jo Ellen Psychiatric Center filedsimilar exceptions.

The two district court judges to whomthe proceedings were assigned denied theexceptions of prescription. Defendantsfiled applications for supervisory writs inthe court of appeal. A three-judge panelof the court of appeal initially reversed thedistrict courts’ denial of defendants’ per-emptory exceptions of prescription, grant-ed the exceptions, and dismissed Ms. Bai-ley’s lawsuits, with one judge dissenting.Bailey v. Khoury, 02–0049 (La.App. 4 Cir.8/28/02), 840 So.2d 582. Because thatjudgment was signed by only two court ofappeal judges, rather than three, as man-dated by La. Const. art. V, § 8(b) when acourt of appeal panel reverses a districtcourt judgment, this court granted Ms.Bailey’s writ application, vacated the courtof appeal decision, and remanded the caseto the court of appeal for reargument be-fore S 8a five-judge panel. Bailey v.Khoury, 03–0165 (La.4/4/03), 845 So.2d1037. A five-judge panel of the court ofappeal then disposed of the matter, ‘‘Writsdenied, judgments affirmed,’’ and coupledthat disposition with an opinion authoredby Judge McKay, affirming the districtcourts’ denials of the defendants’ excep-tions of prescription. Bailey v. Khoury,02–0049 (La.App. 4 Cir. 2/18/04), 868 So.2d

11. Ms. Bailey filed a motion to consolidatethe tort claim against the pharmacies with themedical malpractice discovery proceedingagainst the health-care providers in the dis-trict court to which the tort action had beenassigned; that motion was signed ex parte.However, Dr. Khoury later filed a motionasking the district court to which the medicalmalpractice discovery proceeding had beenassigned to reconsider Ms. Bailey’s motion toconsolidate, citing the fact that the motion toconsolidate had not been set for contradictoryhearing and stating that Ms. Bailey did notobject to rescission of the consolidation order.The district court denied Dr. Khoury’s exparte motion, noting that the motion had to be

set for contradictory hearing. Despite theapparent consolidation, the prescription ex-ceptions filed by the medical malpractice de-fendants were decided by a different districtcourt judge than the prescription exceptionsfiled by the tort defendants. At some point,the cases were consolidated; however, it isunclear from the record when the consolida-tion actually occurred.

12. For simplicity’s sake, this opinion will re-fer to all of the objections to Ms. Bailey’sclaims based on prescription as ‘‘exceptionsof prescription.’’ That term includes Eck-erd’s motion for summary judgment based onprescription.


821 (on remand). Thereafter, this courtgranted and consolidated defendants’ ap-plications for supervisory writs. Bailey v.Khoury, 04–0620, 04–0647, 04–0684(La.5/7/04), 872 So.2d 1073, 1074.

PRESCRIPTION IN MEDICALMALPRACTICE CASES

Prescription in medical malpractice ac-tions is governed by the provisions of La.Rev.Stat. 9:5628, which provides, in perti-nent part, as follows:

A. No action for damages for injuryor death against any physician, chiro-practor, nurse, licensed midwife practi-tioner, dentist, psychologist, optometrist,hospital or nursing home duly licensedunder the laws of this state, or commu-nity blood center or tissue bank as de-fined in R.S. 40:1299.41(A), whetherbased upon tort, or breach of contract,or otherwise, arising out of patient careshall be brought unless filed within oneyear from the date of the alleged act,omission, or neglect, or within one yearfrom the date of discovery of the allegedact, omission, or neglect; however, evenas to claims filed within one year fromthe date of such discovery, in all eventssuch claims shall be filed at the latestwithin a period of three years from thedate of the alleged act, omission, or ne-glect.

B. The provisions of this Sectionshall apply to all persons whether or notinfirm or under disability of any kindand including minors and interdicts.

This court has previously noted that La.Rev.Stat. 9:5628 sets forth more than oneprescriptive period, because it ‘‘initiallyTTT coincides with La. Civ.Code art. 3492’sbasic one year prescriptive period for del-ictual actions, coupled with the ‘discovery’exception of our jurisprudential doctrine ofcontra non valentem.’’ S 9Campo v. Correa,01–2707, p. 8 (La.6/21/02), 828 So.2d 502,508, quoting Hebert v. Doctors MemorialHospital, 486 So.2d 717, 723 (La.1986).

[1, 2] Generally, prescription statutesare strictly construed against prescriptionand in favor of the claim sought to beextinguished by it. Bouterie v. Crane, 616So.2d 657, 660 (La.1993). The burden ofproof on the prescription issue lies withthe party asserting it unless the plaintiff’sclaim is barred on its face, in which casethe burden shifts to the plaintiff. Id. Seealso Campo, 01–2707 at p. 7, 828 So.2d at508. In Campo, we concluded that ‘‘apetition should not be found prescribed onits face if it is brought within one year ofthe date of discovery and facts allegedwith particularity in the petition show thatthe patient was unaware of the malpracticeprior to the alleged date of discovery, andthe delay in filing suit was not due towillful, negligent, or unreasonable action ofthe patient.’’ Id. at 9, 828 So.2d at 509.Applying the rule set forth in Campo, wefind that Ms. Bailey’s original petition wasnot prescribed on its face because it‘‘makes a prima facie showing that it wasfiled ‘within one year from the date ofdiscovery’ and [incidentally] ‘within a peri-od of three years from the date of thealleged act, omission, or neglect.’ ’’ Id. at10, 828 So.2d at 509. Thus, defendantsbear the burden of proving that Ms. Bai-ley’s claims are barred by prescription.

[3–6] ‘‘Prescription cannot run againsta cause of action that has not accrued orwhile that cause of action cannot be exer-cised.’’ Wilkinson v. Wilkinson, 323 So.2d120, 125 (La.1975). Under Louisiana law,for a negligence cause of action to accrue,three elements are required: fault, causa-tion and damages. Austin v. Abney Mills,Inc., 2001–1598 (La.9/4/02), 824 So.2d 1137,1148. Further, liberative prescription ofone year generally begins to run when thevictim knows or should know of the dam-age, the delict and the relationship be-tween them. Branch v. Willis–KnightonS 10Medical Center, 92–3086, p. 1


(La.4/28/94), 636 So.2d 211, 212. Statedanother way, prescription ‘‘commenceswhen a plaintiff obtains actual or construc-tive knowledge of facts indicating to areasonable person that he or she is thevictim of a tort.’’ Campo, 01–2727 at 11,828 So.2d at 510. This court held in Cam-po that the ‘‘ultimate issue’’ in determiningwhether a plaintiff had constructive knowl-edge of a malpractice action is ‘‘the rea-sonableness of the patient’s action or inac-tion, in light of his education, intelligence,the severity of the symptoms, and thenature of the defendant’s conduct.’’ Id. at12, 828 at 511.

[7] Moreover, La. Civ.Code art. 3492,relative to prescription in tort actions, spe-cifically provides that the prescriptive peri-od ‘‘commences to run from the day injuryor damage is sustained.’’ That provisionhas been explained by this court as fol-lows:

[La. Civ.Code art. 3492] is rooted in therecognition that a prescriptive period isa time limitation on the exercise of aright of action, and a right of action intort comes into being only when theplaintiff’s right to be free of illegal dam-age has been violated. When damagesare not immediate, the action in dam-ages thus is formed and begins to pre-scribe only when the tortious act actual-ly produces damage and not on the daythe act was committed.

The damage suffered must at least beactual and appreciable in quality—thatis, determinable and not merely specula-tive. But there is no requirement thatthe quantum of damages be certain orthat they be fully incurred, or incurredin some particular quantum, before theplaintiff has a right of action. Thus, incases in which a plaintiff has sufferedsome but not all of his damages, pre-scription runs from the date on which hefirst suffered actual and appreciabledamage, even though he may thereafter

come to a more precise realization of thedamages he has already incurred or in-cur further damage as a result of thecompleted tortious act.

Harvey v. Dixie Graphics, Inc., 593 So.2d351, 354 (La.1992) (citations omitted).Thus, damage is considered to have beensustained, within the meaning of La. Civ.Code art. 3492, only when it has manifest-ed itself with sufficient certainty to sup-port accrual of a cause of action. Cole v.Celotex Corp., 620 So.2d 1154, 1156 (La.1993). S 11Because, as this court held inHebert and Campo, La.Rev.Stat. 9:5628,the prescription provision for medical mal-practice actions, ‘‘initially coincides with’’the general prescriptive period for delictu-al actions set forth in La. Civ.Code art.3492, the above principles apply to deter-mine when the prescriptive period com-mences in a medical malpractice action.Thus, the primary question we must an-swer in order to decide the issues present-ed by this case is the date when the claimsasserted by Ms. Bailey accrued.

Defendants’ arguments in favor of pre-scription

Defendants’ arguments in support oftheir exceptions of prescription are basedprimarily on the following provisions of theLouisiana Civil Code:

Art. 24 Kinds of personsThere are two kinds of persons: natu-

ral and juridical persons.A natural person is a human be-

ingTTTT

Art. 25. Commencement and end ofnatural personality

Natural personality commences fromthe moment of live birth and terminatesat death.Art. 26. Unborn child

An unborn child shall be considered asa natural person for whatever relates toits interests from the moment of concep-


tion. If the child is born dead, it shallbe considered never to have existed as aperson, except for purposes of actionsresulting from its wrongful death.Art. 27. General legal capacity

All natural persons enjoy general le-gal capacity to have rights and duties.

* * * * *Art. 3468. Persons against whom pre-scription runs

Prescription runs against all personsunless exception is established by legis-lation.Art. 3468. Incompetents

Prescription runs against absent per-sons and incompetents, including minorsand interdicts, unless exception is estab-lished by legislation.

S 12Applying the above provisions togeth-er, defendants argue that an unborn childwho is later born alive is considered anatural person from the time of its concep-tion, and that prescription runs against anunborn child prior to its birth, at leastunder some circumstances. Because Ms.Bailey is Jada’s legal representative, andbecause Jada, who was born alive, is con-sidered to have been a natural person fromthe time of her conception, defendants ar-gue that, under the rules discussed above,prescription commenced on Ms. Bailey’sclaim on behalf of Jada when Ms. Baileyknew or should have known of the damage,the delict and the relationship betweenthem, or by October 28, 1997.

In further support of their position, de-fendants argue that this court’s decision inMalek v. Yekani–Fard, 422 So.2d 1151(La.1982), stands for the proposition thatprescription on a claim for in utero inju-ries to an unborn child begins before thechild’s birth. In Malek, this court allowedthe mother of an illegitimate child to filesuit to establish paternal filiation and ob-tain support prior to the child’s birth. Id.The question of prescription was notraised in the Malek case. Further, the

rights asserted in Malek were propertyrights, not personal rights, like the rightsasserted by Ms. Bailey on behalf of Jada inthis case

Defendants also point to this court’sopinions in Danos v. St. Pierre, 402 So.2d633 (La.1981) (on rehearing) and Adams v.Denny’s, Inc., 464 So.2d 876 (La.App. 4Cir.1985). In Danos, this court held onrehearing that parents may recoverwrongful death damages from a tortfeasorwhose negligence caused injury to theirunborn child, subsequently born dead be-cause of the injury. 402 So.2d 633. InAdams, the court of appeal, applying Da-nos, found that a cause of action for anunborn child’s wrongful death against itsmother’s employer was not subject to theexclusivity provisions of the workers’ com-pensation statute. 464 So.2d at 878.S 13Close review of the Danos and Adamscases reveals however that they have noapplication to the salient issue in this casebecause nothing in either case indicatesthat suit was filed prior to the child’s birth.Further, neither case stands for the propo-sition argued by defendants that prescrip-tion in a claim to recover damages arisingfrom birth defects commences when thechild’s parent becomes aware of the exis-tence and cause of the birth defects. Infact, both the Danos and Adams caseswere apparently filed after the child wasborn dead.

Finally, defendants note the court’sholding in In re Medical Review panel forthe Claim of Derek Dede, 98–2248 (La.App. 4 Cir. 12/2/98), 729 So.2d 603, that theknowledge of the parent determines whenprescription commences on a minor child’smedical malpractice claim. Ultimately, de-fendants argue that Louisiana law containsabsolutely no support for Ms. Bailey’s ar-gument that an unborn child should betreated differently from other natural per-sons for purposes of prescription.


Court of appeal opinion

In the case under consideration, thecourt of appeal disagreed with the defen-dants’ arguments, concluding as follows:

Jada Nacaya Bailey is a natural per-son. Therefore, she enjoys the generallegal capacity to have rights and duties.Although Jada has been considered anatural person from the moment of herconception and was able to acquire acause of action while she was in utero,she would not be able to pursue thisaction until she was born. Logic, there-fore, dictates that any cause of actionthat may be brought on her behalf forinjuries she suffered in utero would notprescribe until one year from the date ofher birth.

02–0049 at 3, 868 So.2d at 823. JusticePro Tempore Landrieu concurred in thecourt of appeal decision, noting the lan-guage of La. Civ.Code art. 26 ‘‘that anunborn child shall be considered a naturalperson for whatever relates to its inter-ests from the moment of conception,’’ andconcluded that the article was ‘‘clearly en-acted to protect S 14unborn children and notto disadvantage them.’’ 02–0049 at 1, 868So.2d at 824 (emphasis added).

PRESCRIPTION ON PLAINTIFFS’CLAIMS

We note at the outset that the court ofappeal decision affirming the district courtjudgments that denied the defendants’ ex-ceptions of prescription is based on theunstated assumption that prescription onMs. Bailey’s individual claim and prescrip-tion on Ms. Bailey’s claim on behalf ofJada commenced on the same day, andshould be governed by similar legal argu-

ments and principles. Despite the factthat the medical malpractice defendantsseparated the two claims in the discussionsections of their memorandums supportingtheir exceptions of prescription in the dis-trict court, none of the lower court deci-sions separates the two causes of action,and the defendants do not clearly distin-guish them in their briefs to this court.However, given the applicable law and theprocedural posture of the case, we find itnecessary to consider the two causes ofaction separately.

Ms. Bailey’s claims on behalf of Jada

[8] As indicated in the introduction tothis opinion, the specific argument setforth by the defendants is apparentlyunique in the reported case law. In fact,we have not discovered any reported casesthat have considered an argument that,under the discovery rule, the statutoryperiod for filing suit seeking damages aris-ing from birth defects or other prenatalinjuries should commence on a date priorto the child’s birth when the parent ac-quired knowledge of the birth defects as aresult of a medical procedure. Rather, thereported cases generally fall into two cate-gories: (1) those holding that the statutoryperiod for filing suit commences on thedate of the child’s S 15birth,13 and (2) thoseapplying the discovery rule and holdingthat the statutory period for filing a suitfor damages arising from birth defects orother prenatal injuries does not begin untilthe date after the child’s birth when thecause of the birth defects was discovered.14

A review of the cases indicates that thelatter rule is often applied to claims that

13. See Brown v. E.I. Dupont De Nemours &Co., 820 A.2d 362 (Del.2003); LaBello v. Alba-ny Medical Center Hospital, 85 N.Y.2d 701,628 N.Y.S.2d 40, 651 N.E.2d 908 (1995);Blake v. Cruz, 108 Idaho 253, 698 P.2d 315(Id.1984); Wilson v. Kaiser Foundation Hospi-tals, 141 Cal.App.3d 891, 190 Cal.Rptr. 649

(3d Dist.1983); Simmons v. Weisenthal, 29Pa. D. & C.2d 54 (Pa.Com.Pl.1962).

14. See Provenzano v. Integrated Genetics, 22F.Supp.2d 406 (D.N.J.1998); Urland v. Mer-rell–Dow Pharmaceuticals, Inc., 822 F.2d1268 (3d Cir.1987).


birth defects were caused by the mother’singestion of drugs during pregnancy.

The first rule has been applied in anumber of Louisiana cases when some spe-cific circumstance attendant to the child’sbirth provided the parent notice that thechild had suffered injury related to negli-gent medical care. See Tucker v. Lain,98–2273 (La.App. 4 Cir. 9/5/01), 798 So.2d1041, writ denied, 01–2715 (La.1/4/02), 805So.2d 210; Richardson v. Moffett, 608So.2d 275 (La.App. 3 Cir.1992), writ de-nied, 612 So.2d 81 (La.1993); Maung–U v.May, 556 So.2d 221 (La.App. 2 Cir.), writdenied, 559 So.2d 1385 (La.1990); Percy v.State of Louisiana, 478 So.2d 570 (La.App.2 Cir.1985). The second rule has also beenwidely applied to Louisiana cases in whichthe cause of a birth defect apparent atdelivery was discovered sometime afterthe birth. See Bailey v. Haynes, 37,038(La.App. 2 Cir. 4/9/03), 843 So.2d 584 writdenied, 03–1209 (La.10/10/03), 856 So.2d1207; Adams v. Louisiana Medical Mutu-al Insurance, 33,030 (La.App. 2 Cir.4/7/00), 756 So.2d 708, writs denied, 00–1313, 00–1322 (La.6/30/00), 766 So.2d 540;LeCompte v. State of Louisiana, 97–1878(La.App. 1 Cir. 9/25/98), 723 So.2d 474;Welch v. St. Francis Medical Center, Inc.521 So.2d 758 (La.App. 2d Cir.), writs de-nied, 524 So.2d 513 S 16(La.1988); Poole v.Physicians & Surgeons Hospital, 516So.2d 1185 (La.App. 2 Cir.1987), writs de-nied, 519 So.2d 127, 128 (La.1988).

Although none of the cases listed aboveaddress the exact issue presented in thiscase, a review of those cases reveals thatmedical malpractice cases involving birthdefects and other prenatal injuries involveunique problems, not necessarily presentin other medical malpractice cases. Infact, it has been recognized that such casesdiffer from other medical malpracticecases in ‘‘several significant ways.’’ Jenni-fer M. Chow, ‘‘Civil Practice Law and

Rules,’’ 69 St. John’s L.Rev. 675, 679(1995). Those differences have been gen-erally described as follows:

First, unborn children have never beenrecognized as ‘‘persons’’ in a legal sense.Second, unlike claimants in other medi-cal malpractice cases, an unborn childcannot bring a claim when the act oc-curs, but must wait until birth. Third,the tortious act in a prenatal injury casecreates conditional prospective liabilitywhich only attaches if the child is bornalive.

Id. (Footnotes omitted.) These differ-ences, Ms. Chow suggests, must be consid-ered in order to determine when a cause ofaction for medical malpractice resulting inbirth defects or other prenatal injuries ac-crues.

Actually, determination of the accrualdate of a cause of action for medical mal-practice resulting in birth defects or otherprenatal injuries in this case is facilitatedby the fact that Louisiana is one of only afew jurisdictions in the United States thathas adopted specific legal provisions rela-tive to the rights of unborn children subse-quently born alive.15 Thus, the first of thethree ‘‘differences’’ listed by Ms. Chowbetween medical malpractice cases involv-ing birth defects and other medical mal-practice cases is not present in this case.La. Civ.Code art. 26 specifically providesthat ‘‘[a]n unborn child shall be consideredas a natural person for whatever relates toits interests from the moment of concep-tion,’’ unless it is born S 17dead, in whichcase ‘‘it shall be considered never to haveexisted as a person, except for purposes ofactions resulting from its wrongful death.’’We find that the accrual of Ms. Bailey’sclaim on behalf of Jada is controlled by thelanguage of La. Civ.Code art. 26, coupledwith its legislative history.

15. See 40 A.L.R.3d 1222, § 4.


La. Civ.Code arts. 24 through 27, allcited by the defendants, are found in Loui-siana Civil Code, Book I, Title I, whichrelates to ‘‘Natural and Juridical Persons.’’Title I of Book I of the Civil Code wasmost recently amended by Act 125 of the1987 Acts of the Louisiana Legislature.The amendments adopted by the Legisla-ture as part of Act 125 (1987) were recom-mended by the Louisiana State Law Insti-tute in a report from its meeting thatoccurred on October 10 through 11, 1986,prepared by Professor A.N. Yiannopoulos.The Reporter appended comments to theInstitute’s recommendation that the legis-lature adopt the provision now designatedas La. Civ.Code art. 26, which providesthat ‘‘[n]atural personality commencesfrom the moment of live birth and termi-nates at death.’’ Those comments includ-ed the following excerpt from Yiannopou-los, Louisiana Civil Law System, § 50(1977):

The personality of natural personscommences at the moment of birth, thatis, at the moment in which a child iscompletely separated from the body ofits mother. Until that time, the childhas no distinct life; as the Romans said,it is merely pars viscerum matris. But,by virtue of a legal fiction, an unbornchild is considered to possess personali-ty, as if it had already been born, whenthis is to its advantage: nasciturus pronato habetur, quoties de commodis ejusagitur. This idea is expressed in Article29 of the Louisiana Civil Code of 1870,which declares that ‘‘Children in themother’s womb are considered, in what-ever relates to themselves, as if theywere already born; thus, the inheri-tances which devolve to them beforetheir birth, and which may belong tothem, are kept for them, and curatorsare assigned to take care of their estatesfor their benefit.’’

The anticipated personality of an un-born child produces various civil effects.

In addition to the right of inheritanceand the appointment of a curator, men-tioned in Article 29 of the Civil Code, aposthumous child may have a cause ofaction under the workmen’s compensa-tion law or under the law of delictualobligations for the wrongful death of itsfather. Moreover, an unborn child mayhave a right to recover S 18damages forprenatal injuries, namely personal inju-ries suffered en ventre de sa mere. Itshould be kept in mind, however, thatthe personality of the unborn child isrecognized only for the preservationof its interests. Thus, while an illegiti-mate child may be recognized before itsbirth, an action for disavowal of paterni-ty must be brought after the child isborn.

(Emphasis added.)

We realize that the comments of theInstitute Reporter do not carry the weightof law, and that the Yiannopoulos articlequoted by the Institute Reporter discussedLouisiana Persons law as it existed priorto the 1987 amendments to La. Civ.Codeart. 26. We nevertheless find them per-suasive evidence of the intention of theLegislature when it adopted the currentversion of La. Civ.Code art. 26 in 1987,especially in light of the fact that the Offi-cial Legislative Comments to the 1987amendment specifically state that the pro-vision ‘‘does not change the law,’’ as notedby this court in Wartelle v. Women’s andChildren’s Hospital, 97–0744, p. 9(La.12/2/97), 704 So.2d 778, 783.

In Wartelle, a case that involved a dif-ferent legal issue than is here involved, wenoted that La. Civ.Code art. 26 appliesonly to ‘‘matters that advance the interestsof the fetus,’’ consistent with ProfessorYiannopoulos’s comments. Therein wesaid that La. Civ.Code art. 26 ‘‘accords toan unborn fetus provisional legal personali-ty for its own interests conditioned on its


subsequent live, birth, such that it canacquire a cause of action and inherit whileen ventre sa mere,’’ but that the article‘‘does not confer actual legal personality;it provides that the fetus shall only be‘considered’ as a natural child and it limitsthe fictional personality of the fetus tomatters that advance the interests of thefetus.’’ Id. at 4, 704 So.2d at 781 (italics inoriginal; boldface emphasis added).16

S 19Ultimately then, Louisiana law beliesdefendants’ argument that Louisiana lawcontains no support for Ms. Bailey’s argu-ment that an unborn child should be treat-ed differently from other natural personsfor purposes of prescription. In fact, Lou-isiana law specifically provides that the‘‘legal fiction’’ of natural personality thatattaches to an unborn child from the mo-ment of conception pursuant to La. Civ.Code art. 26 applies only when such appli-cation is for the benefit of the child or forthe preservation of its interests, as in theMalek case in which the court allowed themother to assert the filiation and supportaction prior to the child’s birth.

It follows logically that the ‘‘legal fic-tion’’ of the unborn child’s natural person-ality from the date of conception estab-lished by La. Civ.Code art. 26 does notattach when its application does not inureto the benefit of the child or for the pres-ervation of its interests, and particularlywhen applying that ‘‘legal fiction’’ would beto the child’s detriment, as here. Certain-ly applying the ‘‘legal fiction’’ to hold thatprescription commenced at some point pri-or to the child’s birth when the motherbecame aware of the existence of its birthdefects would not inure to either the bene-fit of the child or the preservation of itsinterests. The language of La. Civ.Codeart. 26 that an unborn child is to be ‘‘con-

sidered as a natural person for whateverrelates to its interests from the moment ofconception’’ is an ‘‘exception TTT estab-lished by legislation’’ to the general ruleset forth in La. Civ.Code art. 3468 thatprescription runs against minors and in-competents. Further, none of the casescited by defendants demands a differentresult. Thus, we hold that Ms. Bailey’sclaim filed on behalf of Jada accrued onMarch 20, 1997, the date Jada was born,and that prescription on that claim there-fore commenced on that date.

S 20In order to reach our conclusion inthis case, we rely heavily on the fact thatthe ‘‘legal fiction’’ of natural personalityconferred upon an unborn child by La.Civ.Code art. 26 applies only to ‘‘whateverrelates to its interests.’’ In that regard,this decision may be seen as a logicalextension of a much earlier Louisianacase—i.e., Cooper v. Blanck, 39 So.2d 352(La.App.Orl.1923). In that case, the courtheld, contrary to most reported decisionsat the time, that an unborn child subse-quently born alive has a cause of action forprenatal injuries. Id. In so holding, theCooper court relied on La. Civ.Code art.29, which then declared that ‘‘children intheir mother’s womb are, in whatever re-lates to themselves, considered as if theywere already born.’’ Id. at 360 (emphasisadded). Focusing on the phrase ‘‘in what-ever relates to themselves,’’ the court re-jected the argument that the article ap-plied only to successions, and found thatthe phrase was of the ‘‘the most sweepingcharacter.’’ Id.

A California court reached a similar con-clusion in Scott v. McPheeters, 33 Cal.App.2d 629, 92 P.2d 678 (1939), which in-volved a suit for injuries sustained by a

16. Wartelle involved parents of a stillbornchild who wanted to maintain a survival ac-tion. We ultimately rejected the plaintiffs’claims for survival damages, in a divided

opinion by a panel that did not include JusticeKnoll. As indicated in her additional concur-ring reasons herein, Justice Knoll disagreeswith the result in Wartelle.


child prior to its birth as a result of thealleged malpractice of a physician in negli-gently using metal clamps and forceps inconnection with the child’s delivery. Atthat time, Cal. Civ.Code art. 29 stated asfollows: ‘‘A child conceived, but not yetborn, is to be deemed an existing person,so far as may be necessary for its inter-ests in the event of its subsequent birth.’’Id. at 630, 92 P.2d 678. The language andeffect of this article is very similar to La.Civ.Code art. 26. The Scott court rejectedan argument that the word ‘‘interests’’ inthe codal article should be limited in itsapplication to the child’s right of inheri-tance or to its property rights, and notapplied to grant the child a right of actionfor a tort committed prior to its birth. Id.at 631, 92 P.2d 678. The court found thatthe provision was ‘‘as clear and concise asthe English language could make it,’’ andthat the word ‘‘interests’’ should thereforebe interpreted to include ‘‘both personaland S 21property rights.’’ Id. See also Nor-man v. Murphy, 124 Cal.App.2d 95, 268P.2d 178. Because the language in La.Civ.Code art. 26 is also ‘‘as clear and con-cise as the English language can make it,’’we find that it protects both the personaland property rights of the unborn childsubsequently born alive.

The rule established by this case is alsoconsistent with cases from other jurisdic-tions that, like Louisiana, have expressstatutory provisions conferring naturalpersonality on unborn children subse-quently born alive. Many of those caseshave relied upon previous decisions estab-lishing a general rule for when a cause ofaction accrues, which typically occurs whenall of the factual elements of the tort arepresent. See Chow, supra.17 For exam-

ple, in Wilson v. Kaiser Foundation Hos-pitals, 141 Cal.App.3d 891, 190 Cal.Rptr.649 (1983), the court found that, undersuch a provision, live birth is a ‘‘conditionprecedent’’ to accrual of legally cognizablerights. Id. Applying the same principle,the court in Simmons v. Weisenthal, 29Pa. D. & C.2d 54, 1962 WL 6989 (Pa.Com.Pl.1962), found that the statute of limita-tions does not commence in cases involvinginjuries to unborn children until the dateof the child’s birth. In so holding, thecourt stated as follows:

It is apparent that liability for a pre-natal injury attaches at the earliest pos-sible time upon birth of the infant,whether recovery is allowed for a live ora still birth. If liability does not attachuntil birth, whether alive or still, there iswhat has been termed ‘‘an implied condi-tion’’ that the child be born. We do notsee, therefore, how the statute of limita-tions can possibly begin to run untilfulfillment of the implied condition thatthe child be born, at which time liabilitywill attach. Until there is liability therecan be no right upon which an actioncould be brought, and until a right existsthe statute cannot run.

S 22Id. at 55–56. See also Cosgrove v. Mer-rell Dow Pharmaceuticals, Inc., 117 Idaho470, 788 P.2d 1293 (1990).

Under general Louisiana law, a cause ofaction accrues when a party has the rightto sue. Falgout v. Dealers Truck Equip-ment Co., 1998–3150, p. 12 (La.10/19/99),748 So.2d 399, 407. Because La. Civ.Codeart. 26 imposes an ‘‘implied condition’’ oflive birth on an unborn child’s right to beconsidered a ‘‘natural person,’’ we find thata cause of action for damages arising from

17. This law review article criticizes the deci-sion of a New York intermediate appellatecourt in LaBello v. Albany Medical CenterHospital, 200 A.D.2d 299, 614 N.Y.S.2d 459(3d Dept.1994), rev’d, 85 N.Y.2d 701, 628N.Y.S.2d 40, 651 N.E.2d 908 (1995). The

article points out the logical fallacies in theintermediate appellate court’s holding thatthe statute of limitations on a medical mal-practice action arising out of prenatal injurescommenced on the date prior to the birthwhen the malpractice was committed.


prenatal injuries does not accrue until thechild’s live birth. This is especially truesince, under the provisions of La. Civ.Codeart. 26, tortfeasors have no liability forprenatal damages unless and until thechild is born alive. Because the cause ofaction does not accrue until that date, pre-scription does not commence until thatdate. Accordingly, the lower courts prop-erly denied the defendants’ peremptoryexceptions of prescription regarding Ms.Bailey’s claim filed on behalf of her child,Jada.Ms. Bailey’s individual claim

[9] In oral argument, defendants tookthe position that, even if prescription onthe claims filed by Ms. Bailey on behalfof Jada did not commence until her birth,prescription on Ms. Bailey’s individualclaim commenced on the date prior toJada’s birth when Ms. Bailey learnedthat her unborn child had developed birthdefects. This argument is based on thedefendants’ position that Ms. Bailey hadactual or constructive knowledge of thetortious act, the damage and the causalrelation between the tortious act and thedamage on that day. See LeCompte, 97–1878, 723 So.2d 474. According to defen-dants, Ms. Bailey’s knowledge of both theexistence of the birth defects and thesuspected cause of the birth defects, cou-pled with her testimony that she was up-set when she gained that knowledge, issufficient to S 23commence prescription un-der the discovery rule governing pre-scription in medical malpractice claimsestablished by La.Rev.Stat. 9:5628.

In support of their argument, defen-dants attached to their memoranda in sup-port of their exceptions Ms. Bailey’s June12, 2001 deposition (or portions thereof).In that deposition, Ms. Bailey admittedthat, immediately after her pregnancy wasconfirmed, she was informed of the risks ofbirth defects related to use of Depakoteduring pregnancy. Ms. Bailey further

conceded that she knew that Jada hadbirth defects probably caused by her useof Depakote at least by October 28, 1997,when Dr. Grundmeyer told her both thather child had developed birth defects andthat the defects were probably caused byher ingestion of Depakote early in herpregnancy. When asked how she feltwhen she learned that her unborn childhad birth defects, Ms. Bailey replied thatshe was ‘‘messed up’’ and upset. Ms. Bai-ley also said that she considered having anabortion, despite the fact she did not be-lieve in abortion. According to Ms. Bailey,her pregnancy with Jada was ‘‘rough’’ be-cause she was sick all the time and unableto eat, and she also experienced greaterdepression than normal.

In this case, we have struggled to find alogical and equitable legal solution to thematter of accrual of Ms. Bailey’s individualclaim and the corresponding commence-ment of prescription. Although a findingthat prescription commenced on Ms. Bai-ley’s individual claim before Jada’s birthwould not raise the same equitable con-cerns as those raised by a finding that herclaim on behalf of Jada commenced priorto Jada’s birth, we nevertheless find thatthe twin goals of consistency and predict-ability would be better served throughholding that the claims accrue on the samedate. Because Ms. Bailey is the plaintiffin both claims, and because both claimsallege the same negligent acts (failure towarn), the determination of whenS 24prescriptive commences on the twoclaims should not turn upon which hat Ms.Bailey happens to be wearing. Further, afinding that prescription commenced onMs. Bailey’s individual claim at the sametime it commenced on her claim on behalfof Jada provides the additional benefit of aclear, predictable benchmark, and relievesa pregnant plaintiff of the burden of wor-rying about the need to pursue potentiallegal claims during a difficult pregnancy.


Finally, and most importantly, proper ap-plication of the applicable legal principlesto the facts surrounding Ms. Bailey’s claimdoes not support the conclusion urged bythe defendants. For the reasons explainedbelow, we therefore reject the defendant’sargument that Ms. Bailey’s claims accruedon the date she was told that her unbornchild had birth defects probably caused byher ingestion of Depakote.

[10] Reduced to its essence, defen-dants’ argument is that knowledge of thebirth defects and their probable cause,coupled with Ms. Bailey’s testimony thatshe was upset when she gained that knowl-edge, is sufficient to commence prescrip-tion under the discovery rule. We dis-agree. As is evident from the principlesgoverning application of the discovery rulediscussed above in the introduction to thesection entitled ‘‘Commencement of Pre-scription,’’ determination of the date whena cause of action in a medical malpracticeaction accrues is more complicated thanthe defendants suggest. In fact, determi-nation of when prescription commencesunder the discovery rule depends on atleast two primary factors: (1) the date onwhich the plaintiff gained actual or con-structive knowledge of ‘‘facts indicating toa reasonable person that he or she is thevictim of a tort,’’ Campo, 01–2707 at 11,828 So.2d at 510; and (2) the date onwhich the ‘‘tortious act actually producesdamage.’’ Harvey, 593 So.2d at 354.Both knowledge and damages must bepresent for prescription to commence, and,as will be shown, the two factors worktogether in this case. S 25Defendants’ argu-ment focuses on the first of these factors,while virtually ignoring the second.

[11] When applying the above princi-ples to the facts of a particular case, wemust also keep in mind the general pre-cepts governing determination of excep-tions of prescription. For example, theabove principles must be applied in light of

the precept that the burden of proof on theprescription issue rests with the partypleading prescription. See Bouterie, 616So.2d at 660. Further, prescription stat-utes are to be strictly construed againstprescription and in favor of the obligationsought to be extinguished. Id. Determina-tion of when prescription commences un-der the discovery rule is a fact-intensiveinquiry. Stansbury v. Accardo, 2003–2691,p. 3 (La.App. 1 Cir. 10/29/04), ––– So.2d––––, 2004 WL 2415903, citing Campo.

Concerning the first factor set forthabove (the date plaintiff gained knowledgeshe was the victim of a tort), Ms. Baileyclearly testified in her deposition that shehad actual knowledge that her unbornchild had developed birth defects at leastby October 28, 1997, because Dr. Grund-meyer had told her that the ultrasoundrevealed those defects. Further, whenasked how she felt when she was toldabout the birth defects, Ms. Bailey statedthat she was ‘‘messed up’’ and upset. Thequestion is whether this testimony pre-sented by the defendants is sufficient tocarry their burden of proving that Ms.Bailey’s individual claim filed more than ayear after she gained that knowledge isbarred by prescription. The ‘‘ultimatequestion’’ that we must answer is whether,possessing this knowledge, Ms. Bailey’sdelay in filing suit seeking recovery of herindividual damages, including pain and suf-fering, was reasonable, ‘‘in light of [her]education, intelligence, the severity of thesymptoms, and the nature of defendant’sconduct.’’ Campo, 01–2707 at 12, 828So.2d at 511.

S 26This issue is not as straightforward asit might seem. Primarily, we are troubledby the fact that Ms. Bailey’s testimony isimprecise concerning the extent of infor-mation she was given on October 28, 1997.Ms. Bailey’s deposition reveals that shewas told that her unborn child had devel-


oped ‘‘birth defects,’’ but that undisputablefact does not necessarily mean that sheimmediately obtained ‘‘actual or construc-tive knowledge of facts indicating to areasonable person that he or she is thevictim of a tort,’’ as required for applica-tion of the discovery rule. Id. at 11, 828So.2d at 510. The phrase ‘‘birth defect’’can be widely applied to any number ofperceived imperfections in a newbornchild, and nothing in Ms. Bailey’s testimo-ny indicates that she was told that herunborn child had suffered a ‘‘neural tubedefect,’’ that the child had spinal bifida, orthat the child would be paralyzed from thewaist down and suffer loss of motor controland other symptoms. Ms. Bailey’s deposi-tion is silent concerning the details of theknowledge she received. We find that Ms.Bailey’s deposition testimony is insufficientto carry the defendants’ burden of provingthat, on November 28, 1997, Ms. Baileygained actual or constructive knowledge offacts indicating to a reasonable person thathe or she had been the victim of a tort.The problem is that nothing in Ms. Bai-ley’s deposition indicates that, as a reason-able person, Ms. Bailey should have knownon November 28, 1997, that she personal-ly was the victim of any tortious action onthe part of the defendants.

In order to carry their burden of prov-ing that Ms. Bailey had ‘‘actual or con-structive knowledge of facts indicating to areasonable person that he or she is thevictim of a tort,’’ defendants cannot focusexclusively on the first factor set forthabove. Because the word ‘‘tort’’ includesfault, damages, and causation, defendantshad the burden of showing the secondfactor—that their alleged tortious acts ac-tually produced damage on October 28,1997, when Ms. Bailey gained knowledgethat her S 27unborn child had developedbirth defects. This court offered somegeneral principles for determining the datewhen a tortious act actually produces dam-age in Harvey. The court found that the

‘‘damage suffered must at least be actualand appreciable in quality—that is, deter-minable and not merely speculative.’’ 593So.2d at 354. This court has also held thatdamage is sufficient to commence the run-ning of prescription ‘‘only when it hasmanifested itself with sufficient certaintyto support accrual of a cause of action.’’Cole, 620 So.2d at 1156.

We find that the defendants failed tocarry their burden of proving that anydamages suffered by Ms. Bailey prior toJada’s birth manifested themselves withsufficient certainty to support accrual of acause of action. Although Ms. Bailey wasnaturally upset when she learned that herunborn child had developed birth defects,the real issue is whether any damages Ms.Bailey suffered at that point in time quali-fy as ‘‘actual and appreciable’’ damagesthat are determinable, as opposed to spec-ulative damages. Other than her simplestatement that she was ‘‘messed up’’ andupset, Ms. Bailey’s deposition is silent con-cerning the impact of learning that herchild had birth defects. Thus, the defen-dants failed to carry their burden of prov-ing that Ms. Bailey’s individual cause ofaction accrued on the date she was toldthat her unborn child had birth defects.

[12] Prescription will not begin to runat the earliest possible indication that aplaintiff may have suffered some wrong.Jordan v. Employee Transfer Corp., 509So.2d 420, 423 (La.1987). Further, thiscourt has rejected the idea that prescrip-tion principles should be used ‘‘to force aperson who believes he may have beendamaged in some way to rush to file suitagainst all parties who might have causedthat damage.’’ Id. Adoption of the argu-ments presented by the defendants in thiscase would violate those principles, as wellas the other principles discussed herein.S 28Accordingly, we affirm the decision ofthe lower courts denying the defendants’peremptory exceptions of prescription rel-


ative to Ms. Bailey’s individual claim, thisin addition to our earlier determination inthis opinion that the lower courts did noterr in denying defendants’ exception ofprescription to Ms. Bailey’s claim on behalfof Jada.

DECREEThe decisions of the lower courts’ deny-

ing defendants’ peremptory exceptions ofprescription are affirmed, and the case isremanded to the district court.

AFFIRMED; REMANDED TO THEDISTRICT COURT.

KIMBALL, J., dissents in part andconcurs in part for reasons assigned byVICTORY, J.

VICTORY, J., concurred in part anddissented in part.

KNOLL and WEIMER, JJ.,additionally concurred and assignedreasons.

S 1VICTORY, J., concurring in part anddissenting in part.

I concur with the result of the majorityopinion holding that prescription on thechild’s claim does not begin to run untilbirth. As stated by the majority, La. Civ.Code art. 26 imposes an ‘‘implied condi-tion’’ of live birth on an unborn child’sright to be considered a natural person.Therefore, the child’s cause of action fordamages arising from prenatal injuriesdoes not accrue until the child’s live birth.

However, the same cannot be said forthe mother’s individual claim for damagesresulting from this alleged malpractice.Unlike the child’s claim, there is no ‘‘im-plied condition’’ that the baby be born alivein order for the mother to have a claim fordamages for mental anguish and otherdamages suffered by the mother while thebaby is in utero. According to Ms. Bai-

ley’s deposition, she was informed by atleast November 28, 1997 that her baby haddeveloped birth defects and that thesebirth defects were caused by the use ofDepakote ingested early in her pregnancy.She further testified that as a result of thisinformation, she was ‘‘messed up’’ and up-set, S 2that she considered having an abor-tion, despite the fact that she did notbelieve in abortion, and that her pregnancywas ‘‘rough’’ because she was sick all thetime and depressed.

As correctly stated by the majority, de-termination of when prescription com-mences under the discovery rule dependson (1) the date on which the plaintiffgained actual or constructive knowledge offacts indicating to a reasonable person thathe or she is the victim of a tort, and (2) thedate on which the tortious act actuallyproduces damages. Op. at p. 1284.

The majority ultimately finds that, inorder to better serve ‘‘the twin goals ofconsistency and predictability,’’ prescrip-tion on both the mother and Jada’s sepa-rate causes of action should commence onthe same date. However, in so doing, themajority ignores the clear statutory andcase law on prescription. See La. R.S.9:5628; Campo v. Correa, 01–2707(La.6/21/02), 828 So.2d 502; Branch v. Wil-lis–Knighton Medical Center, 92–3086(La.4/28/94), 636 So.2d 211, 212; Harvey v.Dixie Graphics, Inc., 593 So.2d 351, 354(La.1992). Further, the majority’s holdingthat the defendants failed to prove that‘‘any damages suffered by Ms. Bailey priorto Jada’s birth manifested themselves withsufficient certainty to support accrual of acause of action’’ diminishes and trivializesthe actual damages suffered by the motherfrom the time she was informed that, asthe result of information obtained from anultrasound, her baby definitely would suf-fer birth defects.1 The fact that she would

1. Under the majority’s analysis, Ms. Baileywill presumably not be able to recover dam-

ages for her ‘‘mental and physical anguish


suffer further damages after the child wasborn does not delay the running of pre-scription. Harvey, supra at 354 (‘‘Thus, incases in which a plaintiff has suffered somebut not all of his damages, prescriptionruns from the date on which he firstS 3suffered actual and appreciable damage,even though he may thereafter come to amore precise realization of the damages hehas already incurred or incur further dam-age as a result of the completed tortiousact.’’)

In this case, after the child was born,Ms. Bailey still had over seven months tofile her tort claim. Thus, instead of mak-ing exceptions in cases of pre-natal injuriesdiscovered prior to birth, we should, asalways, apply the existing law to the factsof the case. Under that law, Ms. Bailey’sclaim has clearly prescribed.

For the foregoing reasons, I respectfullyconcur in part and dissent in part.

S 1KNOLL, Justice, concurring.

Although I agree with the majority thatthe child’s cause of action has not pre-scribed and with its interpretation of La.Civ.Code art. 26 as applying only when theapplication of the legal fiction of naturalpersonality inures to the benefit of thechild as well as its holding on the mother’sclaim, I additionally concur to commentupon Wartelle v. Women’s and Children’sHospital, Inc., 97–0744 (La.12/2/97), 704So.2d 778,1 cited in the majority opinion, adecision that was wrongfully decided in myview.

According to our civilian tradition and asnoted by the majority opinion, the legal

fiction of natural personality should onlyattach when such application inures to thebenefit of the unborn child or for the pres-ervation of the child’s interest. Thus, anunborn child should not be treated as hav-ing the legal personality of a minor 2

S 2unless such treatment benefits the inter-ests of the child. As the majority opinioncorrectly finds, because ‘‘applying the ‘le-gal fiction’ to hold that prescription com-menced at some point prior to the child’sbirth when the mother became aware ofthe existence of its birth defects would notinure either to the benefit of the child orthe preservation of its interests,’’ prescrip-tion for an action arising out of a tortshould commence when the child is born.

With the understanding that the Legis-lature intended for the legal fiction of nat-ural personality to attach when such appli-cation inured to the benefit of the unbornchild, I feel it is important to reexaminethis Court’s holding in Wartelle. In myview, the Wartelle court erred in findingan unborn child does not have a survivalaction under La. Civ.Code art. 26, becausesuch an action inures to the benefit andpreservation of the interests of the unbornchild. This is especially true when theevidence establishes that the viable fetus,more probably than not, sustained con-scious pain and suffering inflicted by thedeath-causing tort.

The Louisiana Legislature enacted La.Civ.Code art. 26 in 1987 to codify thiscourt’s decision in Danos v. St. Pierre, 402So.2d 633 (La.1981). Eleni M. Roumel,Wartelle v. Women’s & Children’s Hospi-tal, Inc.: Denial of Survival and Bystand-

endured, past, present and future,’’ as allegedin her complaint, for any portion of that men-tal and physical anguish suffered before thechild was born.

1. I did not participate in the Wartelle decisionbecause I was recused, having participated inthat decision in the court of appeal, Third

Circuit, prior to my election to the SupremeCourt.

2. La. Civ.Code art. 3468 provides: ‘‘Prescrip-tion runs against absent persons and incom-petents, including minors and interdicts, un-less exception is established by legislation.’’


er Actions for Death of a Stillborn Child,73 Tul.L.Rev. 399, 401 (1998–1999). In Da-nos, this court established the right ofparents to recover for the wrongful deathof their stillborn child who died because ofprenatal injuries caused by the negligenceof another. Danos, 402 So.2d at 638;Roumel, supra, at 401. Reasoning thatthe 1981 Civil Code did not implicitly orexpressly deny recovery to parents of astillborn child for a wrongful death action,the Danos court found the parents shouldbe able to recover damages and held that astillborn child is a ‘‘person’’ for the pur-poses of bringing a wrongful death action.Danos, 402 So.2d at 639; Roumel, supra,at 402.

S 3Additionally, the Danos court noted theillogic of a rule under which a tortfeasor,who inflicted a more serious injury result-ing in death, would not have to pay dam-ages for his tort, while a tortfeasor whoseact caused the child to be born alive anddisabled would have to pay damages. Da-nos, 402 So.2d at 638; Roumel, supra, at403. In its ruling, the Danos court clearlyindicated that a tortfeasor should not es-cape liability merely because his victimdied in the womb. Danos, 402 So.2d at638; Roumel, supra, at 403. Basically,although a stillborn child is considered tohave never existed, the fact that the child

died in utero ‘‘does not condone the fault ofa person who caused the loss of the[child].’’ Roumel, supra, at 401; La. Civ.Code art. 26, cmt. d.

Under the doctrine announced by thiscourt in Danos, ‘‘it would be arbitrary andillogical to reward the tortfeasor with im-munity from liability because the tortfea-sor injured a viable fetus seriously enoughto cause its death just before birth, ratherthan immediately after the birth,’’ when anunborn child would have been born alive,but for its wrongful death. See Wartelle,97–0744, p. 1 (La.12/2/97), 704 So.2d 778,785 (Lemmon, J., dissenting). The Legis-lature apparently agreed. See infra, note4.

As noted in the Minutes of Meeting ofJune 2, 1987 of the Senate Committee onJudiciary A, the enactment of La. Civ.Code art. 26 did not seek to change thelaw, but rather clarify that ‘‘if you causethe death of a child through negligencealthough it is not yet born or is not alive,there may be a cause of action’’ as recog-nized by the Danos court.3 Recognition ofa survival action in favor of an unbornchild, who is S 4born dead solely because ofa tortious injury, is the logical and onlycorrect extension of the doctrine first an-nounced in Danos and codified in La. Civ.Code art. 26.

3. Professor A.N. Yiannopoulos, the reporterfor the Louisiana State Law Institute commit-tee for the revision of the Louisiana CivilCode of 1870, Book I, explained the purposeof the act was to ‘‘restructure the first part ofBook I of the Civil Code that deals with‘Persons’,’’ because ‘‘Articles 24 through 36 ofthe present Civil Code contains [sic] obsoletematerials pertaining to the differences be-tween the sexes.’’ Yiannopoulos further ex-plained:

This bill would delete the old articles andplace them in modern language. The onlychange in the law is the admission of thefact that there can be a wrongful deathaction for the death of an unborn child.This really isn’t anything new, because in

the last 30 or 40 years we have had it in thebooks. There have been decisions of theLouisiana Supreme Court that recognize acause of action for the death of an unborn.It has nothing to do with abortion, and ithas nothing to [do] with criminal law. Allthis provision deals with is the idea that forthe purposes of civil law, a child is consid-ered to have been in existence since itsconception. That law really is part of Loui-siana law since the Code of 1808. In con-nection with this idea, if you cause thedeath of a child through negligence al-though it is not yet born or is not alive,there may be a cause of action.See Minutes of Meeting of June 2, 1987 of

the Senate Committee on Judiciary A.


Although the logical extension of theDanos ruling would allow parents to bringa survival action for the prenatal injuriessuffered by the child itself, this court erro-neously restricted the scope of Danos inWartelle, holding it applicable solely towrongful death actions. Instead of adher-ing to its reasoning in Danos as codified inLa. Civ.Code art. 26, the Wartelle courtwrongfully departed from the framework ithad articulated in Danos and focused moreupon a strict, textual interpretation of La.Civ.Code art. 26 and, thus, erred by refus-ing to establish the child’s right to a sur-vival action for the child’s wrongful death.Accordingly, I find the majority errs inrelying upon Wartelle, which in my viewwas wrongly decided.

S 1WEIMER, J., concurring.

I concur. The decision in this case is inaccord with the principle that prescriptionprovisions are construed in favor of main-taining a cause of action. Elevating Boats,Inc. v. St. Bernard Parish, 2000–3518, p.17 (La.9/5/01), 795 So.2d 1153, 1165, over-ruled on other grounds by Anthony CraneRental, L.P. v. Fruge, 03–0115(La.10/21/03), 859 So.2d 631.

We must follow the law. Parenthetical-ly, I note the decision has a practical effectas well. From the standpoint of ease ofadministration, commencing prescriptionon the date of birth represents a discrete,specific, and clear triggering event. Sucha result has the virtues of practicality andpredictability for an alleged tort, occurringin utero, which often does not involve adiscrete, specific date upon which the al-leged negligent act and damages occurred.Such a result does not burden a parent orparents with the difficult decision regard-ing bringing suit during a time when at-tention should be focused on the pregnan-cy. Such a result serves to discouragepremature suits which would be difficult topursue until birth or would necessitate dis-missal if there was no live birth. Such aresult does not unduly burden the defen-dants with a stale claim given the durationof a pregnancy.

S 2Finally, the parents of a child allegedto be harmed prior to birth are affordedthe opportunity to fully assess any dam-ages after birth before deciding whether asuit should be filed.

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