Foraker v. BOARD OF SUP'RS OF STATE UNIV.

734 So. 2d 63, 1999 WL 177487
CourtLouisiana Court of Appeal
DecidedApril 1, 1999
Docket31,740-CA
StatusPublished
Cited by2 cases

This text of 734 So. 2d 63 (Foraker v. BOARD OF SUP'RS OF STATE UNIV.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foraker v. BOARD OF SUP'RS OF STATE UNIV., 734 So. 2d 63, 1999 WL 177487 (La. Ct. App. 1999).

Opinion

734 So.2d 63 (1999)

Nelda Branch FORAKER, et vir., Plaintiffs-Appellants,
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, AGRICULTURAL AND MECHANICAL COLLEGE, Defendant-Appellee.

No. 31,740-CA.

Court of Appeal of Louisiana, Second Circuit.

April 1, 1999.
Writ Denied June 18, 1999.

*64 Nelson, Hammons & Self by John L. Hammons, Shreveport, Counsel for Plaintiffs-Appellants.

The Townsley Law Firm by Todd Townsley, Lake Charles, Weems, Schimpf, Hayter, Gilsoul & Carmouche by John O. Hayter, III, Shreveport, Jerald L. Perlman, Shreveport, Counsel for Defendant-Appellee.

Before BROWN, STEWART and DREW, JJ.

DREW, J.

Nelda Foraker ("Nelda") suffered severe burns as a child in 1959 and was hospitalized at Confederate Memorial Hospital (now known as the LSU Medical Center) in Shreveport. Nelda alleges that she received a blood transfusion while at Confederate Memorial. Nelda and her husband, Tommy Foraker, filed suit in September 1994 alleging that Nelda contracted Hepatitis C from a 1959 blood transfusion during her stay at Confederate Memorial. Following a three-day trial in April 1998, the trial court rendered judgment dismissing the Forakers' demands. The court ruled that their claims had prescribed, and in the alternative, found in favor of defendant on the merits.

We affirm the judgment.

FACTS

In the Spring of 1959, eight year-old Nelda was playing near an uncle who was burning a handle out of an ax. Nelda was wearing her Easter dress, with a fluffy "can-can" slip under the dress. At some point, the slip ignited, burning Nelda from her mid-back down to both her legs. Nelda described the burns as so severe that she was able to see the bones in her left hip joint. Nelda was first taken to a DeRidder hospital, then transported to Confederate for treatment of her burns.

Nelda testified that she underwent seven skin graft operations and numerous debridements. She remembered once awakening after surgery and seeing that she was receiving blood. According to Melba Branch, Nelda's mother, Nelda was in the hospital from March to May. According to the certification of hospital records attached to the LSU Medical Center records filed into evidence, the records of Nelda's 1959 hospitalization, which would have corroborated or contradicted Nelda's allegation related to a blood transfusion, were microfilmed in 1970, then the microfilms were destroyed in 1991 due to the *65 age, foul odor and unreadable condition of the films.

Expert witnesses testified that the Hepatitis C virus can be transmitted several ways, such as through IV drug use, needle stick (percutaneous) injuries, blood transfusions and intranasal cocaine use. It can also be transferred within a family by the sharing of toothbrushes, razors and nail clippers. We note that Paula Anderson, Nelda's sister, has been diagnosed with Hepatitis C to which she was exposed when she received a transfusion in 1975. In a large percentage of Hepatitis C patients, estimated by some experts to be 30%, the cause of the disease is never known. Because no test exists to determine precisely how a patient contracted the illness, doctors depend on a patient's veracity in order to determine the risk factors to which the patient may have been exposed. It is possible for the disease to remain asymptomatic for decades after the virus enters the body. Nelda's Hepatitis C has progressed to the point that she has now developed cirrhosis of the liver and is awaiting a liver transplant.

The Forakers' original petition, filed against the Board of Supervisors of Louisiana State University ("LSUMC") on September 19, 1994, alleged that Nelda contracted Hepatitis C when she received a blood transfusion at Confederate in 1959. The petition further alleged that Nelda was treated by Dr. Hooper Nichols in March or April of 1992, that diagnostic studies performed by Dr. Nichols revealed Nelda had Hepatitis C, and that Dr. Nichols advised Nelda shortly after his diagnosis that the probable means of her contracting the Hepatitis C was through a blood transfusion.

LSUMC filed an answer on March 28, 1996, asserting a general denial and that the Forakers' claim had prescribed. LSUMC filed the peremptory exception of prescription on October 10, 1997.

On November 5, 1997, more than three years after filing the original petition, the Forakers filed a supplemental and amending petition. The petition was amended to allege that Dr. Nichols did not discuss possible causes of Hepatitis C with Nelda when he diagnosed the disease. The petition was supplemented to allege that Nelda was unaware of her possible cause of action until shortly before filing the original petition, that Nelda learned of the causal relationship between blood transfusions and Hepatitis C from Paula Anderson, Nelda's sister, and that Nelda's physicians actively concealed the causal relationship by failing and refusing to advise Nelda that her Hepatitis C was caused by the 1959 transfusion.

The trial court rendered judgment on November 24, 1997, denying the exception of prescription. On December 8, 1997, LSUMC filed a motion for new trial on the exception of prescription. The trial court granted the motion for new trial on the exception of prescription and referred the exception to the trial on the merits.

Trial on the merits was held on April 21, 23 and 24, 1998, and the trial court rendered judgment on May 14, 1998. The trial court sustained the exception of prescription, and in the alternative, the court granted judgment on the merits in favor of LSUMC. The trial court's findings of fact include that: (i) the preponderance of the documentary and circumstantial evidence do not support the conclusion that Nelda received a blood transfusion while hospitalized at Confederate in 1959; (ii) when Nelda was advised of the Hepatitis C diagnosis, her treating physician informed her that a blood transfusion is one of the many known risk factors for contracting Hepatitis C; and (iii) during the same time period, Nelda's sister was diagnosed with Hepatitis C and was told that a blood transfusion is one of several known risk factors for contracting the disease. The trial court concluded that how Nelda contracted Hepatitis C was not established by the preponderance of the evidence presented on this record. The trial court further concluded that the Forakers' *66 claims were filed more than one year after they learned that Nelda had contracted Hepatitis C and more than one year after they learned that a blood transfusion is one of several known risk factors associated with contracting Hepatitis C.

The Forakers appeal, specifying three errors: (1) The trial court erred by disregarding uncontroverted testimony from Nelda and her mother that Nelda received one or more blood transfusions while hospitalized at Confederate Memorial; (2) the trial court erred by concluding that the 1959 blood transfusion did not cause Nelda's Hepatitis C; and (3) the trial court erred in concluding that the cause of action had prescribed.

PRESCRIPTION

La. C.C. art. 3492 provides that the one-year liberative prescription period for delictual actions begins to run from the date the injury or damage is sustained. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of showing why his action has not prescribed. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206; Harrison v. Gore, 27,254 (La.App.2d Cir.8/23/95), 660 So.2d 563, writ denied, 95-2347 (La.12/8/95), 664 So.2d 426.

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Bluebook (online)
734 So. 2d 63, 1999 WL 177487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foraker-v-board-of-suprs-of-state-univ-lactapp-1999.