Bailey v. Khoury
891 So.2d 1268, 2005 WL 115514 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The prescriptive period for a medical malpractice claim arising from prenatal injuries, for both the child's cause of action and the mother's individual cause of action, commences on the date of the child's live birth, not on an earlier date when the mother discovers the existence and probable cause of the birth defects in utero.
Facts:
- Ginger Bailey, a patient being treated for bipolar disorder, was prescribed the drug Depakote by Dr. Robert Ancira and later by Dr. Gregory Khoury.
- Pharmacies including Walgreen's Louisiana Co., Inc. and Eckerd Corporation filled Bailey's prescriptions for Depakote.
- Bailey alleged she was never warned by her physicians or pharmacists that taking Depakote during pregnancy could cause birth defects.
- In late July or early August 1997, Bailey learned she was pregnant while taking Depakote.
- On October 25, 1997, an ultrasound revealed that Bailey's unborn child had developed a neural tube defect.
- On November 28, 1997, Bailey was formally informed that her unborn child had developed birth defects and that the condition was probably caused by her ingestion of Depakote.
- On March 20, 1998, Bailey's daughter, Jada, was born with severe birth defects, including spina bifida, Cornelia de lange syndrome, hydrocephalus, and paralysis from the waist down.
Procedural Posture:
- Ginger Bailey filed a medical malpractice action against Dr. Khoury and others, and a tort action against Walgreens and Eckerd, in a Louisiana state trial court.
- The defendants filed peremptory exceptions of prescription, arguing the one-year time limit to sue had expired.
- The trial courts denied the defendants' exceptions of prescription.
- Defendants, as appellants, sought supervisory writs from the Louisiana Court of Appeal, Fourth Circuit.
- A three-judge panel of the Court of Appeal reversed the trial courts and granted the exceptions, dismissing Bailey's lawsuits.
- The Louisiana Supreme Court granted Bailey's writ application, vacated the appellate decision on procedural grounds (lack of a required majority for reversal), and remanded the case to the Court of Appeal.
- A five-judge panel of the Court of Appeal heard the case on remand and affirmed the trial courts' denial of the defendants' exceptions of prescription.
- The defendants (Dr. Khoury, et al.) petitioned the Louisiana Supreme Court for a supervisory writ, which was granted.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the one-year prescriptive period for medical malpractice and tort claims arising from prenatal injuries commence prior to the child's birth, on the date the mother learns via ultrasound that her unborn child has birth defects and is informed of their probable cause?
Opinions:
Majority - Calogero, C.J.
No. The one-year prescriptive period does not commence prior to the child's birth. For the child's claim, a cause of action for prenatal injuries does not fully accrue until the child's live birth, as live birth is an implied condition for the child to be considered a natural person with assertable legal rights. Under Louisiana Civil Code art. 26, the legal fiction granting personality to a fetus from conception applies only when it is in the child's interest; starting prescription before birth would be to the child's detriment. For the mother's individual claim, prescription does not commence until birth because any damages suffered prior to birth, such as emotional distress upon learning of the defects, are not 'actual and appreciable' but are merely speculative until the full extent of the harm is realized at birth. A single commencement date at birth for both claims provides a clear, predictable benchmark and relieves a pregnant plaintiff from the burden of pursuing legal action during a difficult pregnancy.
Concurring in part and dissenting in part - Victory, J.
No, as to the child's claim; Yes, as to the mother's claim. The prescriptive period for the child's claim does not begin until birth because live birth is a condition for the cause of action to accrue. However, the mother's individual claim for damages accrued when she learned of the birth defects and their cause on November 28, 1997. Her testimony that she was 'messed up,' upset, and considered an abortion demonstrates she suffered actual and appreciable damage at that time. Prescription runs from the first instance of such damage, even if more damages are incurred later; therefore, her individual claim has prescribed.
Concurring - Knoll, J.
No. The prescriptive period does not commence prior to the child's birth. This concurrence agrees with the majority's reasoning, particularly its interpretation of La. Civ. Code art. 26 that the legal fiction of natural personality applies only when it benefits the child. The author writes separately to express disagreement with the court's prior holding in Wartelle v. Women's and Children's Hospital, Inc., arguing that it was wrongly decided.
Concurring - Weimer, J.
No. The prescriptive period does not commence prior to the child's birth. This concurrence agrees with the majority and adds that establishing the date of birth as the trigger for prescription has the practical benefits of being a discrete, specific, and clear event. This approach promotes practicality and predictability, avoids burdening parents during pregnancy, discourages premature lawsuits, and allows a full assessment of damages before litigation.
Analysis:
This case establishes a significant, bright-line rule in Louisiana for prenatal injury torts, holding that the statute of limitations for both the child's and the mother's claims begins at the moment of live birth. It clarifies that the legal fiction of fetal personality under La. Civ. Code art. 26 is a protective shield, not a sword to be used against the child's interests by starting the prescriptive clock prematurely. For parental claims, the decision raises the threshold for what constitutes 'actual and appreciable' damage, suggesting that emotional distress from a prenatal diagnosis, without the full context of the live child's condition, may be too speculative to trigger prescription. This ruling provides certainty for plaintiffs and practitioners and aligns with the policy of not compelling litigation during a high-risk pregnancy.
