Opinion
No. 2001-CC-1601
September 21, 2001.
IN RE: Fustok, Mohamed Dr. et al; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, Nos. 550-212; to the Court of Appeal, Fifth Circuit, No. 01-C-191
Granted. Plaintiff's premature suit did not interrupt prescription. LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. Moreover, the application indicates plaintiff's request for medical review panel was filed more than one year from the date of the alleged malpractice. As a result, prescription was never suspended under La. 40:1299.47 A(2)(a) Accordingly, the judgment of the trial court is reversed, and relator's exception of prescription is granted.
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CALOGERO, C.J., I would grant and docket in order to reconsider the issue resolved in LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. As set forth in my dissent in LeBreton, I find no conflict between the provisions to Civil Code article 3462 and LSA-R.S. 40:1299.47 (A)(2) (a), as both provisions can easily be harmonized with the result of each provision being given full effect. The purpose for denying claims that are prescribed is to avoid denying the defendant a timely opportunity to investigate a matter and prepare a defense. That purpose is not served here, where the defendant was sued less than one year from the occurrence of plaintiff's injury.
KIMBALL, J., would grant and docket.
JOHNSON, J., would grant and docket.