
    Robert Scott JARRELL and Vanessa Jarrell v. WEST JEFFERSON MEDICAL CENTER.
    No. 06-CA-889.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.
    
      David J. Foshee, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Rodi W. Culotta Curry & Friend, APLC, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   EDWARDS, Judge.

| sPlaintiffs/appellants, Robert Scott Jar-rell and Vanessa Jarrell (“Jarrell”), appeal a judgment of the district court granting an Exception of Prescription in favor of defendant/appellee, West Jefferson Medical Center (“West Jefferson”).

On October 28, 2004, Jarrell filed a petition for damages against Dr. John Steck (“Dr. Steck”) claiming that he suffered damages as a result of alleged negligence on the part of that physician on August 29, 2000. In the petition, Jarrell averred that, as a result of the medical negligence, he received new injuries and faced complications of injuries previously sustained in a helicopter accident. West Jefferson was not named in the petition. In brief, Jarrell asserts that he was visiting Dr. Steck for treatment of the helicopter accident injuries. Dr. Steck filed an Exception of Prescription, averring that the act on which the cause of action was taken occurred on August 29, 2000, and that, on August 29 2001, a complaint was filed with the Commissioner of Administration. The Medical Review Panel was continued until November 10, 2003, at which time it expired. Dr. Steck urged that, according to LSA-R.S. 40:1299.47(B)(3), ninety days after the notification to all parties of the dissolution of the medical review panel, or ninety days after the |,-¡expiration of any court-ordered extension, the suspension of the running of prescription with respect to a qualified health care provider shall cease. Therefore, Dr. Steck alleged that, since there was no additional time left on the original prescriptive period, the action had prescribed.

Jarrell originally opposed the exception on due process grounds. He filed a supplemental opposition, alleging that he was in the course and scope of his employment when he was originally injured in the helicopter incident and that Dr. Steck was solidarily liable with his employer. Jarrell filed a Supplemental and Amending Petition urging simply that Dr. Steck and his employer were jointly and solidarily liable for the damages suffered as a result of the malpractice. At the trial of the exception, and on appeal here, Jarrell urges that a timely-filed suit against his employer interrupted prescription as against all soli-dary and joint obligors.

LSA-C.C. art. 3492 provides a one-year prescriptive period for delictual actions. Because Jarrell’s suit for tort damages was filed more than one year after the incident, the action had prescribed on its face. In such circumstances, the plaintiff carries the burden of proving that prescription was interrupted, suspended, or renounced. When the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. According to LSA-C.C. art. 3462, “Prescription is interrupted when ... the obli-gee commences action against the obligor, in a court of competent jurisdiction and venue.” Furthermore, LSA-C.C. art. 1799 provides that “[t]he interruption of prescription against one solidary obligor is effective against all solidary obligors.... ” Louisiana jurisprudence holds that third-party tortfeasors and employers involved in suits arising out of the |4same injury/accident are solidary obligors. “Thus, when an injured employee timely files a claim seeking workers’ compensation benefits from his employer, prescription is interrupted with regard to the injured employee’s claim against the third party tortfea-sor.”

To establish solidary liability in this case, Jarrell must show that at least some of the injuries he suffered in his helicopter work-related accident were complicated by, aggravated by, or otherwise related to, the actions of Dr. Steck. The first issue has been at least partially alleged and, in the absence of any evidence on this question, may be taken as true for purposes of the current exception.

Here, the only evidence introduced was attached to the Exception of Prescription filed by Dr. Steck and consisted of letters and a document extending the Medical Review Panel. Nowhere in the record on appeal are there any pleadings, documents, etc., evidencing Jarrell’s suit against his employers, or its status at the time the malpractice suit was filed. To defeat prescription, Jarrell must show not only the relationship of the malpractice injuries to any injuries suffered in the helicopter accident, but he must also show that the compensation suit to which he seeks to attach was timely filed. On the appellate record, we are unable to establish that fact. Further, we are unable to determine the status of the compensation lawsuit at the time the malpractice action was filed. “With regard to actions in tort, interruption generally occurs with the filing of a suit in a court of I ¡¡competent jurisdiction and venue and an action remains interrupted while the suit is pending.” See, LSA-C.C. arts. 3462 and 3463.

Jarrell did not carry his burden of proof in the trial on the exceptions. For these reasons, we affirm the judgment of the trial court granting prescription. However, because we find that facts exist which may be sufficient to overcome prescription, we hold that Jarrell should be given the opportunity to amend his petition to allege those facts. Accordingly, we remand for the district court to amend the judgment to allow Jarrell to amend his petition within a specified period of time. If he fails to so amend the petition, the claim should be dismissed. If he amends his petition and alleges new facts, the district court should consider anew the exception of prescription.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

DALEY, J., dissents with reasons.

DALEY, Judge,

dissenting.

_JjThe majority opinion states there are facts that exist “which may be sufficient to overcome prescription” and amends the judgment to allow the plaintiff to amend his petition to include these facts. I disagree that plaintiffs suit, which is prescribed on its face, can be resurrected given the facts presented.

In LeBreton v. Rabito, 1997-2221, (La.7/8/98), 714 So.2d 1226, the Supreme Court determined that in a medical malpractice lawsuit the specific medical malpractice prescription provisions contained in LSA R.S. 40:1299.47 should be applied, rather than the general provisions dealing with interruption of prescription. In overruling the Court’s prior holding in Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), which had allowed the simultaneous application of the interi’uption and suspension of prescription statutes in medical malpractice actions, the LeBreton Court explained that when there is a conflict between two statutes on the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the more general statute. In further explanation, the Court stated: “the filing of a medical malpractice claim with a medical review panel triggered the suspension of prescription specifically provided by the Medical Malpractice Act, rather than the interruption of the liberative prescriptive period generally provided in the Civil Code.” Id. at 1230.

Ijn Schulingkamp v. Ochsner Clinic, 01-1137 (La.App. 5 Cir. 3/12/02), 813 So.2d 524, this Court followed LeBreton to affirm the trial court’s grant of the defendant Ochsner’s Exception of Prescription. In Schulingkamp, as in the case at bar, plaintiffs argued that the pending suit against solidary obligors continued to interrupt prescription against Ochsner. In rejecting plaintiffs argument, this Court explained that to do as plaintiff urged “is to ignore to [the] statute more specifically directed at the prescription issue in the context of the medical Malpractice Act.” Id. at 528.

More recently in Borel v. Young, 2006-352, (La.App. 3 Cir. 12/29/06), 947 So.2d 824, which currently has writs pending to the Supreme Court, the Third Circuit relied on LeBreton to uphold the trial court’s grant of defendant’s Exception of Prescription. In Borel, the plaintiff filed a claim with the Patient’s Compensation Fund against Dr. Young and Lafayette Medical Center. After the panel rendered an opinion, plaintiff filed suit against the Medical Center and did not file suit against Dr. Young. Later, when plaintiff discovered the Medical Center would present evidence of Dr. Young’s negligence, the plaintiff sought to amend the petition to include Dr. Young. When this was denied, plaintiff filed a separate suit against Dr. Young that was later consolidated with the suit against the Medical Center. In affirming the Exception of Prescription in favor of Dr. Young, the Court explained: “Subsequent jurisprudence applying the principals of LeBreton to joint tortfeasor situations have concluded that the specific provisions in the medical malpractice statute regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general codal articles on interruption of prescription against joint tortfeasors.” Id. at p. 831.

In the case at bar, plaintiff filed a timely claim with the Patient’s Compensation Fund as provided in the Medical Malpractice Act. As per the ^provisions in the Act, this panel expired on November 10, 2003, after no party moved to extend the life of the panel. Under LSA R.S. 40:1299.47 B(3) plaintiff had 90 days from November 10, 2003 to file suit. When plaintiff failed to do so, his claim against Dr. Steck prescribed. For the foregoing reasons, I would affirm the judgment of the trial court as written. 
      
      . Gary v. Camden Fire Ins. Co., 96-0055 (La.7/2/96), 676 So.2d 553.
     
      
      . Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).
     
      
      . Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).
     
      
      . See, e.g., Segura v. Cleco Power, LLC, 2004-1368 (La.App. 3 Cir. 3/2/05), 900 So.2d 897, 900, writs denied, 2005-1660 (La.1/9/06), 918 So.2d 1051.
     
      
      
        .Bell v. Kreider, 03-300 (La.App. 5 Cir. 9/16/03), 858 So.2d 58, 63, writ denied, 2003-2875 (La.1/9/04), 862 So.2d 986 (emphasis supplied). See also, McGuire v. Envtl. Monitoring Serv., Inc., 03-497 (La.App. 5 Cir. 9/30/03), 865 So.2d 759.
     