Recent Case by Regina O. Matthews
On May 30, 1985, plaintiffs-appellants Walter Lewis Gover and Evelyn Gover Smith brought a medical malpractice action against Dr. Ronze McIntyre Bridges to recover for the death of their mother following cancer surgery on January 26, 1976. Plaintiffs claimed that, despite the nine year delay, their action was timely filed because Dr. Bridges had written a letter to them in which he allegedly misrepresented the circumstances surrounding their mother's death, thus preventing them from learning of their cause of action and restricting their ability to bring suit at an earlier date. Under the doctrine of contra non valentem, plaintiffs argued, Dr. Bridges's misrepresentations prevented their action from prescribing. Dr. Bridges filed an exception of prescription based on the provisions of section 9:5628 of the Louisiana Revised Statutes, which requires that all malpractice actions be brought within three years from the date of the alleged act, omission, or neglect. The trial court found that section 9:5628 legislatively overruled the doctrine of contra non valentem and sustained defendant's plea of prescription. The court of appeal agreed that the cause of action had prescribed because the facts did not show a level of misrepresentation sufficient for the court to consider the doctrine of contra non valentem. The Louisiana Supreme Court granted writs to determine whether the defendant's behavior was such that the doctrine of contra non valentem should have applied to toll the prescriptive period of section 9:5628. Without specifically holding that the doctrine could apply to actions brought under section 9:5628, the court held that the evidence did not approach the level of concealment, fraud, or misrepresentation necessary to prevent the timely filing of the action and, thus, did not have the effect of interrupting or suspending prescription. By reviewing the sufficiency of the evidence in this case, however, the court impliedly affirmed the continued applicability of the doctrine in situations where it has not been specifically overruled by the legislature and where mechanical application of the prescriptive period would bring an inequitable result. Gover v. Bridges, 497 So. 2d 1364 (La. 1986).
About the Author
Regina O. Matthews.
Citation
61 Tul. L. Rev. 1541 (1987)