Masters v. Fields

692 So. 2d 43, 1997 La. App. LEXIS 899, 1997 WL 175126

• Court: Louisiana Court of Appeal
• Decided: April 2, 1997
• Docket: Nos. 27-924-CA, 27-925-CA
• Status: Published

Opinion

ON REMAND

h CARAWAY, Judge.

On March 14,1995, the trial court granted an exception of prescription and dismissed Ovis Master’s claims of medical malpractice against Dr. Bruce Golson, St. Francis Medical Center, and Radiology Associates. The judgment specifically stated:

[T]he constitutionality issue in this matter has been stayed pending a ruling from the Louisiana Supreme Court on the same [issue] in the Whitnell v. Silverman case, this Court’s ruling on the prescription issue is appealable at this time.

Plaintiff appealed and this court issued a written opinion addressing the issues of prescription, contra non valentum, solidary obli-gors, and continuing tort. In a footnote, this court specifically stated:

The proceedings regarding the constitutionality of LSA-R.S. 9:5628, the prescriptive statute applicable to medical malpractice claims were stayed in the lower court until such time as the Louisiana Supreme Court rules in Whitnell v. Silverman, pending as No. 95-CA-0259.

From our review of the record, the proceedings regarding the constitutionality of the statute remains pending in the trial court.

Because the trial court had not ruled on the constitutional issues, the parties neither briefed nor argued the constitutional issues before this court nor before the Louisiana Supreme Court, which granted writs in this case. The Supreme Court has now decided Whitnell v. Silverman. Following that decision, the court remanded this case to this court for consideration “in light of Whitnell.”

Because the trial court has never ruled on any of the constitutional issues raised by the plaintiff, further proceedings regarding those issues may proceed in the trial court in accordance with the law.

|2Because no constitutional issue has ever been an issue in the appeal of this case, our ruling rendered on January 24, 1996 remains uneffected by Whitnell and we reaffirm our judgment expressed therein.

AFFIRMED.