author: PER CURIAM. KNOLL, Justice

text:
    In re Steven YOUNG, I.
    No. 2003-B-0274.
    Supreme Court of Louisiana.
    June 27, 2003.

      Charles B. Plattsmier, Bernadine Johnson, Baton Rouge, Counsel for Applicant.
    Steven Young, I, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Steven Young, I, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

Williams Matter

In 1995, respondent was appointed by Judge Bonnie Jackson of the Nineteenth Judicial District Court for the Parish of East Baton Rouge to represent Adam Williams in connection with armed robbery charges. During the course of his investigation of the case, respondent became convinced Mr. Williams was guilty and intended to take the stand in his own defense and testify falsely. On the day trial commenced, respondent filed a motion to withdraw. In his motion, respondent asserted that “[a] trial in this matter is a waste of time as there is no possibility, in [respondent’s] mind, for the State not to prove beyond a reasonable doubt the guilt of Mr. Williams....” Respondent further maintained that he “forever foresakes the taking of another criminal case as the possibility of these specific conflicts are far more likely to occur before the criminal bar than before the civil bar.”

| Judge Jackson denied respondent’s motion to withdraw and jury selection commenced. Respondent declined to participate in voir dire. As a result, Judge Jackson dismissed the jury. At Mr. Williams’ request, Judge Jackson removed respondent and appointed new counsel, re-suiting in a further delay in the matter while the newly appointed counsel became familiarized with the case. Subsequently, in open court, Judge Jackson advised respondent he was barred from representing another criminal defendant in her court.

Vincent Matter

In 1998, Carl Vincent retained respondent to represent him in criminal proceedings involving charges of simple kidnaping and forcible rape. Mr. Vincent’s case was allotted to Judge Jackson.

Four days before Mr. Vincent’s trial was scheduled to begin, respondent filed a motion for a continuance. In the motion, respondent admitted that he failed to prepare for trial, because he did not believe the case would ever go to trial. Respondent further stated that Mr. Vincent faded to pay him for collect calls made by Mr. Vincent to respondent. Respondent was “adamant about not doing anymore [sic] work on the defendant’s case ... until he paid his bill.”

Judge Jackson granted respondent’s motion for continuance and rescheduled the trial. Several months later, as the trial date approached, respondent advised Mr. Vincent, who had by that time been incarcerated for approximately one year, that he |8was unprepared for trial because he was still investigating information concerning whether the victim had consented to sexual relations with Mr. Vincent.

Apparently, respondent believed that Judge Jackson would not be receptive to another motion for continuance. Instead, respondent assisted Mr. Vincent in filing a pro-se motion entitled “Motion to Terminate Attorney; Motion for Continuance; Motion for Appointment of Attorney; Motion for the Right and Time for Newly Appointed Attorney to File Necessary Papers to Protect his Right to Consent Defense.” The court granted Mr. Vincent’s requests and removed respondent as his representing counsel and a new attorney was appointed, once again delaying the disposition of the criminal proceedings.

DISCIPLINARY PROCEEDINGS

Formal Charges

Shortly after respondent’s removal in the Vincent proceedings, Judge Jackson sent a letter to the ODC expressing her concerns relative to respondent’s mishandling of the two criminal matters in her court. After investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.1(a) (incompetence), 1.2(a) (scope of representation), 1.3 (lack of diligence), 1.4 (failure to communicate with client), 1.7(b) (attorney conflict of interest adversely reflecting client representation), 3.2 (failure to expedite litigation), 8.4(a) (violating the Rules of 1 ¿Professional Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent filed an answer to the formal charges denying any misconduct on his part. A formal hearing was held before the committee. The ODC introduced documentary evidence, including documents from the underlying criminal proceedings and Judge Jackson’s deposition. Respondent appeared at the hearing and testified on his own behalf.

Recommendation of the Hearing Committee

Following the formal hearing, the hearing committee concluded respondent’s handling of the Williams matter did “not rise to the level of actionable attorney misconduct.” It reasoned respondent found himself in a dilemma as to whether or not he should allow his client to take the witness stand and knowingly give false testimony, or whether or not he should withdraw from the case. As to the Vincent matter, the committee recognized respondent admitted he failed to adequately prepare for the trial and, as such, violated Rule 1.1(a). It also found respondent violated Rules 8.4(a) and 8.4(d), reasoning his attempts to delay the trial based on his failure to prepare constituted conduct prejudicial to the administration of justice. The hearing committee found insufficient evidence to support the other formal charges.

The committee did not cite any formal aggravating or mitigating factors. However, as an apparent mitigating factor, it observed that respondent’s actions stemmed “largely from his own set of moral principles, which often time may seemingly conflict with the duties of a lawyer and the representation of criminal clients.”

Is As a sanction, the committee recommended that respondent be suspended from the practice of criminal law for a period of two months followed by a six-month period of supervised probation.

Both respondent and the ODC filed an objection to the hearing committee’s proposed sanction.

Recommendation of the Disciplinary Board

The board adopted the factual findings of the hearing committee in their entirety. However, the board’s legal findings differed from that of the committee. As to the Williams matter, the board determined that, although respondent had good cause to discontinue the representation of Mr. Williams, his motion to withdraw was denied. The board recognized respondent had a professional obligation to continue his representation of his client and breached that obligation when he failed to participate in the voir dire process or proceed with the trial. The board reasoned respondent’s actions in this regard constituted a violation of Rules 8.4(a) and 8.4(d) because they were prejudicial to the administration of justice. It also concluded respondent violated his duty to provide competent representation under Rule 1.1(a) with respect to his statements in his motion to withdraw that the trial was a “waste of time” and there was no possibility in his mind “for the State not to prove beyond a reasonable doubt the guilt of Mr. Williams.” As to the Vincent matter, the board agreed with the committee 1 fithat respondent’s efforts to file motions as delay tactics violated Rules 8.4(a) and 8.4(d), finding that these actions, like his actions in the Williams matter, were prejudicial to the administration of justice.

The board found respondent knowingly violated duties owed to his clients, the legal system and the legal profession, causing actual injury to his clients and the legal system by unnecessarily delaying the legal process. Additionally, although Mr. Williams later pled guilty as charged, the board concluded respondent's failure to proceed with the representation exposed his client to the potential harm of being unnecessarily incarcerated for an additional period of time.

In aggravation, the board cited respondent’s prior disciplinary offenses, multiple offenses and substantial experience in the practice of law. The board did not identify any mitigating factors.

The board relied on the ABA’s Standards for Imposing Lawyer Sanctions to conclude the appropriate baseline sanction for respondent’s misconduct is ^suspension. Considering the facts of this case, the board recommended respondent be suspended from the practice of law for a period of six months.

Respondent filed an objection to the board’s findings and recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992).

Our review of the record demonstrates that the ODC proved by clear and convincing evidence the allegations of professional misconduct. In the Williams matter, respondent violated his duty under Rule 1.1(a) to provide competent representation when he indicated that it was a “waste of time” for Mr. Williams’ case to proceed to trial and refused to participate in the voir dire process. It is well-settled that an indigent defendant such as Mr. Williams is entitled to the “guiding hand of counsel” during criminal proceedings. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (citing Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Even though respondent may have concluded Mr. Williams did not have a viable defense, ^respondent continues to have a duty to represent him in a competent fashion. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under these circumstances, we conclude that respondent’s actions in the Williams matter constitute a violation of Rule 1.1(a).

In the Vincent matter, it is clear respondent’s actions were calculated to delay the trial. When it became apparent to respondent that the trial court would not grant a second motion for continuance, respondent drafted a motion (purportedly prepared by Mr. Vincent on a pro-se basis) which made it appear Mr. Vincent was terminating respondent’s services. Through this artifice, respondent forced the trial court to grant a continuance.

While respondent’s motivation may have been to protect the interests of his client, he may not violate his professional obligations as an officer of the court under the guise of being a zealous advocate. Respondent had a duty to present the facts to the trial court and allow the trial court to make an informed ruling on the continuance |aissue. In the event of an adverse ruling, respondent could then have sought review in a higher court. His failure to follow these basic rules demonstrates he engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d).

Having found evidence of professional misconduct, we now turn to the issue of an appropriate sanction. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 518 So.2d 1178 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct caused actual harm to the administration of justice and created a great potential of harm to the interests of his clients. The baseline sanction for this misconduct under Standard 7.12 of the ABA’s Standards for Imposing Lawyer Sanctions is a suspension from the practice of law.

As aggravating factors, we recognize respondent’s substantial experience in the practice of law, his prior disciplinary record and the presence of multiple offenses. While the hearing committee and disciplinary board did not identify any mitigating factors, we finds the record reveals respondent had an absence of dishonest or selfish motive. We give significant weight to this mitigating factor, as we are convinced respondent did not intend any harm to his clients or the judicial system; rather his actions were motivated by his lack of understanding of the professional rules and his belief that he was acting in the best interests of his clients.

Accordingly, we conclude the appropriate sanction for respondent’s misconduct is a six-month suspension from the practice of law. However, in light of |10the mitigating circumstances, we will defer all but two months of this suspension. Following the completion of the active portion of his suspension, respondent shall be placed on probation for a period of six months, subject to the following conditions:

(1) During the period of probation, respondent shall be supervised by a practice monitor to be appointed by the ODC;
(2) Respondent shall attend and successfully complete the Ethics School program sponsored by the Louisiana State Bar Association.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that respondent, Steven Young, I, Louisiana Bar Roll No. 13765, be suspended from the practice of law for a period of six months. It is further ordered that all but two months of this suspension shall be deferred. Following the completion of the active portion of this suspension, respondent shall be placed on probation for a period of six months, subject to the conditions identified in this opinion. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

VICTORY, J., dissents and would follow the Board’s recommendation as to sanction.

KNOLL, J., concurs with reasons.

KNOLL, Justice

(concurring).

I concur in the majority’s holding, but write separately to express my belief that respondent’s misconduct was not due to incompetence but resulted from a conscious attempt to manipulate the judicial system to the advantage of himself and his clients. Such misconduct is very serious in nature.

However, I find it noteworthy that the trial court, which personally observed the misconduct, did not hold respondent in contempt or otherwise sanction him. The trial court’s letter to the ODC regarding respondent was not phrased as a complaint; rather, the trial court asked the ODC to assist respondent in understanding his professional obligations. Under these circumstances, I believe the sanction adopted by the majority is appropriate.

Accordingly, I respectfully concur.

      . Respondent sought supervisory review of the trial court's ruling. The court of appeal denied respondent’s application for writs.

      . Respondent received Judge Jackson's consent to handle the case after he had advised her, following the Williams matter, that he had resolved his personal conflicts as it affected his practice of criminal law.

      . According to respondent, Mr. Vincent led him to believe the alleged victim would recant her statements against the client and the matter would not proceed to trial.

      .As stated, Mr. Vincent was charged with rape and kidnaping. Shortly before the rescheduled trial date, respondent allegedly learned for the first time that the alleged rape victim's minor son had entered the home at the time Mr. Vincent and the victim were having sexual relations. Respondent asserted he needed additional time to interview the boy, who supposedly would testify his mother consented to the encounter with Mr. Vincent.

      . In her letter, Judge Jackson stated that she was not filing a complaint against respondent, but requested some "intervention or counseling" to assist him.

      . The board noted respondent had an obligation to continue the representation following the unfavorable ruling on his motion to terminate the representation. In support, the board relied on Rule 1.16(c), which provides, "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” While the board concluded respondent breached the rule when he failed to participate in the voir dire process or proceed with the trial, it recognized respondent had not been formally charged with Rule 1.16(c).

      . As to the Williams matter, the board found insufficient evidence of a violation of Rule 1.7(b) since respondent properly attempted to withdraw from the representation based on a conflict of interest. It also found no evidence of violations of neglect or failure to expedite Mr. Williams’ case, in violation of Rules 1.3 and 3.2, respectively, since respondent took measures on behalf of his client by attempting to locate witnesses, meeting with his client who was incarcerated and attempting to reach a plea agreement with the district attorney. Finally, without citing any reasons, the board concluded there was no violation of Rules 1.2(a) and 1.4.

      . As to the Vincent matter, the board found insufficient evidence of violations of Rules 1.3 and 3.2, citing respondent's diligent efforts on behalf of his client to expedite the litigation, which included locating and interviewing witnesses, filing pleadings and meeting with the assistant district attorney. Additionally, the board found no evidence respondent was incompetent, in violation of Rule 1.1(a), in the Vincent matter. In support, the board reasoned that although respondent’s motion for continuance alleged he had not prepared for trial, he later admitted this motion and the later motion he prepared for his client were filed as a delay tactic because of his need to investigate potentially favorable evidence discovered just days before trial was scheduled to begin. Finally, the board found insufficient evidence to support violations of Rules 1.2(a), 1.4 and 1.7(b).

      . In 1989, respondent was suspended from the practice of law for endorsing a client's name to the back of a joint check and converting the funds to his own use. Louisiana State Bar Ass’n v. Young, 545 So.2d 1018 (La.1989). In 1999, respondent was admonished by the disciplinary board, though the grounds for the admonition are not clear from the record.

      . Respondent was admitted to the practice of law in Louisiana in 1976.

      . Standard 4.52 provides suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury. Standard 7.12 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . In Cronic, the Court stated:
      Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. See Nichols v. Gagnon, 454 F.2d 467, 472 (C.A.7 1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972). At the same time, even when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt. And, of course, even when there is a bona fide defense, counsel may still advise his client to plead guilty if that advice falls within the range of reasonable competence under the circumstances.

      .In oral argument, respondent suggested his true reason for seeking to withdraw was that his client intended to perjure himself at trial. We question whether there is support for this contention in the record. However, even assuming respondent's allegations are true, he should have first sought to dissuade his client from giving perjured testimony. See, e.g., Nix v. Whiteside, 475 U.S. 157, 175-176, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). If the client persisted in his criminal or fraudulent conduct, respondent could have moved to withdraw based on Rule 1.16(b)(1) (a lawyer may withdraw if the client "persists in a course of action involving the lawyer's services that the lawyer believes is criminal or fraudulent”). Respondent’s motion to withdraw, based on the theory that it was a "waste of time” to go to trial, obviously did not satisfy the requirements of this rule.


source: Caselaw Access Project

author: KIMBALL, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jody L. TOLBERT.
    No. 2003-KK-0330.
    Supreme Court of Louisiana.
    June 27, 2003.

      Clarke D. Beljean, Laurie A. White, Lauren E. Williams, New Orleans, for Applicant.
    Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Jessica I. LaCambra, for Respondent.
   KIMBALL, Justice.

In the instant case, we are called upon to determine whether a municipal conviction may be used for impeachment purposes in criminal cases pursuant to the provisions of La. C.E. art. 609.1. For the reasons that follow, we conclude that a municipal conviction may be used to attack a witness’s credibility pursuant to the provisions of and subject to the limitations in La. C.E. art. 609.1. Because a prior decision of this court erroneously reached a contrary determination in its interpretation of the precursor of Article 609.1, it is overruled.

Facts and Procedural Histoiy

Defendant, Jody L. Tolbert, a New Orleans police officer, was charged by bill of information with one count of aggravated crime against nature in violation of La. R.S. 14:89.1. According to testimony given by the victim at a hearing conducted on January 16, 2002, defendant, while on duty, stopped her as she was exiting a store on Baronne Street on April 19, 2001, and drove her to her home where he forced her to |2perform oral sex on him. The victim subsequently reported the incident to the Public Integrity Division.

During the course of the proceedings, defendant learned the victim had been convicted of several municipal violations, including prostitution and lewd conduct. He thereafter provided notice that he intended to use these convictions to attack the victim’s credibility pursuant to La. C.E. art. 609.1. As counsel explained at the motion hearing on July 18, 2002, introduction of these convictions would establish that the victim was “in fact — for lack of a better word — an habitual prostitute, such that the allegations in this case may be more suspect.” The State opposed the motion on the basis of this court’s decision in State v. Ramos, 390 So.2d 1262, 1264 (La.1980). Ramos indicated that a municipal conviction was inadmissible for purposes of former La. R.S. 15:495, which provided for impeachment of a witness’s credibility by evidence of prior convictions. At the conclusion of the hearing, the trial court agreed defendant could use any state felony or misdemeanor convictions to impeach the victim’s testimony. However, relying on Ramos, the trial court prohibited defendant from using the municipal convictions to attack the victim’s credibility and consequently denied defendant’s motion.

Defendant sought review of the trial court’s ruling in the court of appeal and requested a stay order. The court of appeal issued a stay order on September 5, 2002. State v. Tolbert, 02-1670 (La.App. 4 Cir. 9/5/02). Subsequently, on January 27, 2003, the court of appeal denied defendant’s writ and recalled the stay order. State v. Tolbert, 02-1670 (La.App. 4 Cir. 1/27/03).

Upon defendant’s application, we issued a stay of this matter and granted certiorari to consider the continuing validity of our Ramos decision. State v. Tolbert, 03-0330 (La.2/5/03), 836 So.2d 79, 2003 WL 355670.

[¡¡Discussion

As an initial matter, we note the State has informed this court that the victim is now deceased. For purposes of defeating a mootness claim, the State indicated at oral argument before this court that the victim’s death does not render the case moot because the victim’s testimony concerning the details of the offense was elicited at a hearing on January 16, 2002 and subjected to full cross-examination by defense counsel. Thus, the State contends it should be allowed to submit a transcript of this testimony into evidence at trial. If the transcript of the victim’s testimony is admitted at trial, defendant may then be entitled to impeach her testimony by evidence of her prior convictions to the full extent of the law. See La. C.E. art. 806 (“When a hearsay statement ... has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness-’’l. Therefore, the issue of whether the municipal convictions may be used to attack the victim’s credibility remains viable.

Having determined that this case is not rendered moot by the death of the victim, we turn to the sole issue presented by this case, which is whether defendant should be allowed to attack the credibility of the victim at trial with evidence of her prior municipal convictions pursuant to the provisions of La. C.E. art. 609.1.

Louisiana Code of Evidence Article 609.1, entitled “Attacking credibility by evidence of conviction of crime in criminal cases,” provides:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his Lcriminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. Howev-' er, details of the offense may become admissible to show the true nature of the offense:
(1) When the witness has denied the conviction or denied recollection thereof;
(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.
D. Effect of pending post-conviction relief procedures. The pendency of an appeal or other post-conviction relief procedures does not render the conviction inadmissible, but may be introduced as bearing upon the weight to be given the evidence of the conviction.
E. Effect of pardon or annulment. When a pardon or annulment, based upon a finding of innocence, has been granted, evidence of that conviction is not admissible to attack the credibility of the witness.
F. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under this Article, except for use in proceedings brought pursuant to the habitual offender law, R.S. 15:529.1.

Defendant argues this article makes it clear that any witness who testifies in a criminal case is subject to examination regarding his or her criminal convictions. He asserts municipal convictions may be used to attack a the credibility of a witness | sbecause they are statutorily defined as misdemeanor criminal convictions pursuant to La. R.S. 14:2 and 14:7, when read in conjunction with La.C.Cr.P. art. 933. Defendant contends the Ramos decision is no longer controlling as its focus was on the interpretation of a statute that has since been repealed.

The Ramos case dealt with a defendant’s appeal of his conviction and sentence for attempted first-degree murder. One of the defendant’s assignments of error dealt with a claim of prejudice suffered when the prosecutor made reference to his municipal convictions. In addressing this assignment of error, this court stated:

The defendant admitted that he had been in municipal court “for tickets and being drunk.” The record does not indicate a contemporaneous objection by the defense, but defense counsel maintains that he did object and that the trial judge sustained the objection. It does not appear that the defendant has a valid complaint since the court ruled in his favor and no request for an admonition or mistrial was made. The trial judge was clearly correct in curbing the state’s inquiry into municipal offenses. A municipal offense is not a crime within the meaning of La.R.S. 15:495, which provides that “(e)vidence of conviction of crime” is admissible for impeachment of a witness’s credibility under prescribed circumstances. Crime is defined in La. R.S. 14:7 as “that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.” It was intended to exclude from the designation “crime” all offenses established by municipal ordinances. See Reporter’s comment, L.S.A.-R.S. 14:7. This assignment lacks merit.

Ramos, 390 So.2d at 1264.

The analysis employed in Ramos and its pronouncement that a municipal offense is not a crime for purposes of La. R.S. 15:495 are suspect. Initially, the | «Ramos court concluded that because defendant made no request for an admonition or mistrial after the trial court sustained his objection regarding the reference to the municipal convictions, he did not have a valid complaint. This court’s further pronouncements on the propriety of using municipal convictions for impeachment purposes under La. R.S. 15:495 were therefore dicta. Moreover, when this court looked to the definition of “crime” in the Criminal Code and concluded a municipal conviction was not included within the definition, it ignored its own settled jurisprudence that had long sanctioned the wide-ranging impeachment of a witness on the basis of felony and misdemeanor convictions. See, e.g., State v. Dundas, 168 La. 95, 121 So. 586, 591-92 (1929) (collecting cases). Although in the early 1970s at least one member of this court desired to restrict the scope of impeachment by prior convictions, see, e.g., State v. Odom, 278 So.2d 261, 265 (La.1973) (Barham, J., concurring) (“In the proper case we should exclude the introduction of other convictions for the purpose of impeachment and as an attack upon credibility unless the convictions are of offenses which, by their very nature, charge perjury, falsification, or lack of truthfulness.”), this court settled on the rule that:

[cjonvictions admissible under this section [La. R.S. 15:485] have not been limited to those directly reflecting on the veracity of a witness and include misdemeanor convictions. We believe that the use of evidence of a [ 7conviction for the violation of a penal provision for which imprisonment can be imposed is contemplated by this section.

State v. Bradford, 298 So.2d 781, 792 (La.1974) (internal citations omitted).

This court thus held in Bradford that the State properly impeached the defendant with his court martial conviction for being absent without leave while serving in the Armed Services. Id. The court reached the same result again in State v. Wilson, 342 So.2d 670 (La.1977). Without mentioning this jurisprudence, however, the Ramos court concluded that municipal convictions were inadmissible for impeachment purposes under La. R.S. 15:495 because an offense established by municipal ordinance was not a “crime” as defined in La. R.S. 14:7, which provides that a crime is “conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.” If Ramos were correct about the manner in which to interpret the word “crime” in La. R.S. 15:495, then both Bradford and Wilson would be incorrectly decided since, in those cases, the violation of federal law for which defendants had been convicted also did not constitute a “crime” as defined in La. R.S. 14:7. Additionally, the Ramos rationale could be used to exclude not only federal convictions, but also all out-of-state convictions, no matter how serious the crime.

Thus, in a single stroke of dicta, Ramos drastically narrowed the scope of impeachment of witnesses in this state and paved the way for the exclusion of evidence of significant crimes for impeachment purposes. For the reasons set forth above, we conclude Ramos had significant unfor-seen negative consequences and was wrongly decided. We repudiate the decision and, to the extent it remains valid after the repeal of La. R.S. 15:495, overrule it.

IsWith the repeal of former La. R.S. 15:495 in 1989, impeachment of witnesses by prior convictions in criminal cases now falls exclusively under the provisions of La. C.E. art. 609.1 and varies significantly from the rules prevailing under the Federal Rules of Evidence, the source for many of the provisions in our Code of Evidence. At the federal level, in both civil and criminal cases,

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Fed.R.Evid. 609(a)(1). These restrictions, which clearly preclude impeachment by relatively minor convictions, see, e.g., U.S. v. Cox, 536 F.2d 65 (5th Cir.1976) (prostitution), do not apply if the prior conviction “involved dishonesty or false statement, regardless of the punishment.” Fed. R.Evid. 609(a)(2). Federal law in this area clearly influenced the provisions of La. C.E. art. 609 regarding impeachment of witnesses in civil cases by convictions for crimes “punishable by death or imprisonment in excess of six months under the law under which [the witness] was convicted” when the court “determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party-” La. C.E. art. 609(A)(1). As does its federal counterpart, the statute excepts from these restrictions crimes involving “dishonesty or false statement, regardless of the punishment.” La. C.E. art. 609(A)(2).

|flOn the other hand, La. C.E. art. 609.1(A) provides broadly that in criminal cases, “every witness by testifying subjects himself to examination relative to his criminal convictions, subject to” certain limitations. The limitations that follow this broad rule of impeachment in no way limit the class of convictions available for impeachment purposes. Section (B) states that only “offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.” La. C.E. art. 909.1(B)(emphasis added).

Unlike former article 15:495, which spoke in terms of conviction of a “crime,” art. 609.1 speaks in terms of “offenses” for which the witness has been convicted. The term “offenses” is not defined in the Code of Evidence. It is, however, defined in the Code of Criminal Procedure as including “both a felony and a misdemean- or.” La.C.Cr.P. art. 933(1). “Misdemean- or,” in turn, is defined as “any offense other than a felony, and includes the violation of an ordinance providing a penal sanction.” La.C.Cr.P. art. 933(4). Thus, a municipal conviction that carries the possibility of a penal sanction is properly termed an offense. It therefore appears clear that municipal convictions subject to punishment are included within the scope of art. 609.1.

In light of the broad language employed in La. C.E. art. 609.1 in obvious distinction to that used in Article 609, its civil counterpart, the lack of limitations imposed by the legislature on the class of convictions available for impeachment purposes, and the use in art. 609.1 of the term “offenses,” we conclude that municipal convictions subject to a penal sanction may be used for impeachment purposes in criminal cases pursuant to the provisions of and subject to the limitations provided in La. C.E. art. 609.1.

11()In the instant case, although the person sought to be impeached is the victim, she is also a witness. The plain language of Article 609.1 applies to “every witness” who testifies. There is no exception to this rule when the victim is a testifying witness. Under La. C.E. art. 403, however, evidence of the victim’s prior convictions may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

After a hearing in this case, the trial court, relying on Ramos, refused to allow the defense to use the victim’s municipal convictions to impeach her testimony. The evidence, however, is not subject to exclusion based solely on the fact that the convictions sought to be introduced are municipal convictions. We reverse the judgment of the trial court denying defendant’s motion and remand the case to the trial court for it to determine whether evidence of the victim’s municipal convictions is otherwise admissible under the provisions of Article 609.1 and, if so, to conduct the balancing test required by Article 408.

Decree

The judgment of the trial court denying defendant’s motion to introduce evidence of the victim’s prior municipal convictions for impeachment purposes is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED.

      . This opinion deals solely with the issue of whether a municipal conviction may be used for impeachment purposes in criminal cases pursuant to the provisions of La. C.E. art. 609.1. It is not intended to address either expressly or implicitly any other evidentiary issues that may later be raised by the parties in this case.

      . At the time Ramos was decided, La. R.S. 15:495 governed impeachment by prior convictions. The statute provided:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.
      La. R.S. 15:495 was repealed effective January 1, 1989 when the new Louisiana Code of Evidence went into effect.

      . While it might appear obvious the repeal of La. R.S. 15:495 has at least called into question the pronouncement in Ramos that municipal convictions could not be used for impeachment, courts have continued to adhere to the court’s ruling in that case. See, e.g., State v. Martin, 29,352 (La.App. 2 Cir. 5/13/97), 694 So.2d 1209; State v. Wilcoxon, 26,126 (La.App. 2 Cir. 6/22/94), 639 So.2d 385. Consequently, we will explicitly overrule the decision to eliminate confusion on this issue.


author:
WEIMER, Justice.
     CALOGERO, Chief Justice, JOHNSON, J.,

text:
    Rocky Wayne DAVID v. OUR LADY OF THE LAKE HOSPITAL, INC.
    No. 2002-CC-2675.
    Supreme Court of Louisiana.
    July 2, 2003.

      Eugene R. Groves, William S. McKenzie, Erick Y. Miyagi, Taylor, Porter, Brooks & Phillips, Baton Rouge, Counsel for Applicant.
    Keith D. Jones, Jones, Aaron & Smith, Baton Rouge, Counsel for Respondent.
    Clark R. Cosse, III, Baton Rouge, Counsel for amici curiae Louisiana Hospital Association and Metropolitan Hospital Council of New Orleans.
    Peter T. Dazzio, Chris LeBlanc, Baton Rouge, Counsel for amicus curiae Louisiana Hospital Association Medical.
    John E. Baker, Counsel for amicus curiae Louisiana Patient’s Compensation Fund Oversight.
    John O. Pieksen, Jr., Jack M. Stolier, New Orleans, Counsel for amicus curiae Rural Hospital Coalition Inc.
    Stephen G. McGoffin, Daniel C. Palmin-tier, Lafayette, David R. Sobel, Alexandria, Counsel for amici curiae HCA Health Services of LA Inc., Doctors Memorial Hospital, North Monroe Hospital, Lake-view Medical Center L.L.C., Lakeview Regional Medical Center, Highland Park Hospital, Medical Center of Baton Rouge, Inc., Lakeside Hospital, Women’s and Children’s Hospital Inc., Galen Medical Inc., Women’s and Children’s Hospital (Lake Charles), Highland Hospital (Shreveport), Christus Health, Christus St. Frances Cabrini Hospital, Christus St. Patrick Hospital, Christus Schumpert Health System, Voluntary Hospitals of America Inc.
   WEIMER, Justice.

We granted this writ to consider whether an individual who contracted hepatitis C from a blood transfusion administered by a hospital in 1979 can bring an action for damages 20 years later if the hospital is held strictly liable for providing contaminated blood. Finding that the prescriptive period of three years provided in LSA-R.S. 9:5628 bars such an action, we reverse the judgments of the lower courts and remand to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Rocky Wayne David received blood transfusions at Our Lady of the Lake Hospital, Inc. (OLOL) in 1979. The blood was ordered by his treating physician after surgery to remove kidney stones and was collected, processed, and administered by OLOL under the direction of a board-certified pathologist. Alleging OLOL should be | ¡.held strictly liable for providing him with blood contaminated with hepatitis C, David filed suit in 1999.

In an exception of prescription OLOL averred David’s claim was prescribed pursuant to LSA-R.S. 9:5628 because suit was not filed within three years of his blood transfusions. The trial court denied the exception, concluding plaintiff had one year from actual knowledge of the condition in which to bring his claim.

On February 9, 2001, a five-judge panel of the Court of Appeal, First Circuit granted OLOL’s writ application and reversed the trial court’s judgment which had overruled the exception of prescription. Citing Boutte v. Jefferson Parish Hospital Service District No. 1, 99-2402 (La.4/11/00), 759 So.2d 45, the appellate court held LSA-R.S. 9:5628 applied to plaintiffs claim even though OLOL was not a qualified health care provider under the Louisiana Medical Malpractice Act at the time of the blood transfusion. Thereafter, this court granted a writ application by David and remanded the case to the appellate court for a full opinion. David v. Our Lady of the Lake Hospital, Inc., 01-0656 (La.5/11/01), 792 So.2d 3.

The first circuit issued an opinion denying OLOL’s writ application on the basis of Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921.

Seeking reversal of the lower courts’ rulings on the prescription issue, OLOL filed a writ application with this court, which was granted February 7, 2003. David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.2/07/03), 836 So.2d 81.

^DISCUSSION

The sole issue before this court is whether the prescriptive period for a strict liability claim against a hospital arising from a blood transfusion given to a patient in 1979 is governed by LSA-R.S. 9:5628. Despite the fact that this court has addressed the issue on three different occasions in the last eight years, we agree with OLOL that the issue deserves this court’s attention once again.

Blood shield legislation/jurisprudence:

In 1968, the legislature enacted Louisiana’s first blood shield statute. Former LSA-C.C. art. 1764 (now repealed) was amended by Act 301 of 1968, adding section B, as follows:

Notwithstanding the provisions of Section A.2. of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.

This blood-shield statute withstood constitutional challenges in appellate courts of three circuits: Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333 So.2d 354 (La.App. 3 Cir.), writ denied, 337 So.2d 220 (La.1976); Koppenol v. St. Tammany Parish Hospital, 341 So.2d 1242 (La.App. 1 Cir.), writ denied, 343 So.2d 1067 (La.1977); and Adams v. New Orleans Blood Bank, Inc., 343 So.2d 363 (La.App. 4 Cir.1977). The first circuit noted that by the late 1970’s, 47 states had adopted similar statutes and in each instance where constitutionality was challenged the statute was upheld. See, Koppenol, 341 So.2d at 1245.

|/The plaintiffs also asserted claims of strict liability under Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), which claims were rejected. See, Juneau, 333 So.2d at 358 (in enacting Article 1764(B) the legislature intended for the furnishing of blood to be considered a service for all purposes, not just for the warranty of fitness in a sale); accord, Adams, 343 So.2d at 364; see also, Koppenol, 341 So.2d at 1245, (the legislature considered and weighed the necessity and need for blood against the risk of contracting hepatitis and concluded the need outweighed the risk; the legislature saw fit in Article 1764(B) to exclude this type of injury from the application of warranty (express and implied) and from strict liability, as in Restatement (Second) of ToRts § 402A (1965).).

Another attempt at recovering damages for tainted blood came in Martin v. Southern Baptist Hospital, 352 So.2d 351 (La. App. 4 Cir.1977), writ denied, 354 So.2d 210 (La.1978). Plaintiff acknowledged that the implied warranty of fitness was barred by LSA-C.C. art. 1764(B). Instead, plaintiff urged entitlement to a cause of action against the hospital for strict liability under LSA-C.C. art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975). The court held that to permit the application of strict liability in these blood cases would instill in the medical profession fear of the use of blood until foolproof tests could be devised, an untenable result. The court cited with approval the provision in LSA-C.C. art. 1764(B) that blood is not a “commodity,” but is a medical service, saying this “public policy statute” recognized the life-saving need for use of blood in some cases.

Meanwhile, in its 1975 regular session the Louisiana Legislature enacted a series of laws limiting the rights of medical malpractice claimants. The legislation included the Uniform Consent Law, LSA-R.S. 40:1299.40; the Medical Malpractice Act Is(MMA), LSA-R.S. 40:1299.41 et seq.; the law strengthening the powers of the State Board of Medical Examiners, LSA-R.S. 37:1261 et seq.; and the prescriptive statute for actions for medical malpractice, LSA-R.S. 9:5628 (actions based upon tort, breach of contract or otherwise arising out of patient care shall be brought within one year from the date of the alleged malpractice or from the date of discovery, but no later than three years from the date of the alleged act).

Although by 1981 the theory of strict liability had become established in Louisiana, the appellate courts had relied on the 1968 amendment to LSA-C.C. art. 1764 to reject that theory’s application in blood cases. Thus, DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26 (La.1981), was the first ease to hold that a plaintiff seeking damages for being transfused in 1973 with blood tainted with hepatitis had a cause of action in strict liability. Justice Dennis, writing for the majority, concluded that blood contaminated with hepatitis virus is defective, i.e., unreasonably dangerous to normal use because the risks involved in receiving a transfusion of blood in this condition are greater than a reasonable consumer would expect. The majority cited LSA-C.C. arts. 2315-2324 and Restatement (Second) of Toets § 402A: Defective Condition, but did not mention comment k of 402A. (See Note 8, infra.) Rejecting defendants’ reliance on LSA-C.C. art. 1764(B)(1) to bar strict liability, Justice Dennis explained the liability of the distributor of blood was not one governed by the law of contractual warranties, but by the law of strict liability in tort. The majority interpreted Article 1764(B) as being limited to | (¡“that article” and thus, it should not have been read to include an “unspoken legisla-five intent to modify the strict tort liability of blood banks under Article 2315.” Id. at 32.

By Act 611 of 1981, a new civil code article designated as Article 2322.1, and by Act 331 of 1981, a new section designated as LSA-R.S. 9:2797 were enacted, providing that strict liability “shall not be applicable to physicians, hospitals ... or nonprofit community blood banks ... in the ... transfusion ... of human blood ... which results in transmission of viral diseases ... undetectable by appropriate medical and scientific laboratory tests.” Both acts limited the effectiveness of the provisions to causes of action arising after the effective dates of the acts.

The Branch, Boutte, Williams decisions:

In 1994, Justice Dennis again wrote for the majority in Branch v. Willis-Knighton Medical Center, 92-3086 (La.4/28/94), 636 So.2d 211. First, the court rejected the argument that the blood shield statutes enacted after DeBattista barred a cause of action for hepatitis C contracted from blood “sold” in 1976. The court held Branch’s cause of action vested prior to enactment of the blood shield statutes, and he and other pre 1981 consumers of defective blood could not be divested of their rights by subsequent legislation.

|7The majority in Branch held the three-year prescription provision in LSA-R.S. 9:5628 did not apply to “strict tort liability actions arising out of the sale of blood in a defective condition unreasonably dangerous to the user or consumer.” Branch, 92-8086 at 7, 686 So.2d at 214. Justice Dennis reasoned the earmarks of the statute indicated the legislature intended to deal only with actions traditionally classified under the generally prevailing meaning of “medical malpractice.” Branch, 92-3086 at 8, 636 So.2d at 214. Thus, Branch’s action against the providers of blood was not time barred.

Justice Lemmon dissented in Branch, reasoning that the sale of blood to a properly informed patient was not the sale of an unreasonably dangerous product. In his view, Branch’s cause of action arose from lack of informed consent or from negligence of the hospital in handling the blood. Thus, the three-year limitation of LSA-R.S. 9:5628 should apply.

Six years later, a unanimous court distinguished but did not overrule Branch. In Boutte, supra, a hepatitis C case, the court held that the MMA (LSA-R.S. |S4Q:1299.41 et seq.) encompassed all legal theories of liability, including strict product liability, against a private hospital for damage arising from defects in blood received in 1981 and 1982. The MMA for private hospitals was enacted in La. Acts 1975, No. 817. At the time the transfusion in Branch was administered, the MMA contained no mention of blood products. The court’s rationale was that Boutte differed because when that plaintiffs transfusions were administered, the MMA’s definition of medical malpractice had been revised by La. Acts 1976, No. 183 to include “all legal responsibility of a health care provider arising from defects in blood.” LSA-R.S. 40:1299.41(8). Therefore, it was unnecessary to overrule Branch in order to find Boutte’s cause of action was barred by the three-year prescription applicable to medical malpractice cases. The court noted a possible constitutional problem because a separate statute was enacted in 1976 to cover malpractice liability for state services, La. Acts 1976, No. 66, but the legislation did not include the specific language about defective blood. LSA-R.S. 40:1299.39(A)(4).

The third case in the trilogy was Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921. Although the plaintiff had raised several constitutional challenges during the course of the prolonged litigation, the majority of four bypassed those issues and decided the case on the basis of an interpretation of LSA-R.S. 9:5628 not linked to the definition of malpractice in the MMA. The court stated:

The application of § 5628 does not depend on whether the defendant is a qualified health care provider under the MMA, or on whether the claim alleged in the plaintiffs complaint is “malpractice” as defined under that Act. What the application of § 5628 depends on is whether the two restrictions the Legislature set forth in that special ^prescription statute are met; namely: (i) the defendant must fall within one of the categories of enumerated providers; and (ii) the claim asserted must meet the statutory, conduct-based standard, i.e., the action, whether in tort, in breach of contract, or otherwise, must arise out of patient care. In this case, the first restriction is met because [Jackson Parish Hospital] is a state licensed hospital, but the second restriction is not satisfied.

Williams, 2000-3170 at 12, 798 So.2d at 930.

The divided court concluded that Branch correctly held all pre-1982 (pre-blood shield statutes) claims against hospitals in strict products liability arising out of defective blood transfusions {DeBattista claims) are not traditional medical malpractice claims and are not governed by LSA-R.S. 9:5628, but by LSA-C.C. art. 3492. Williams, 2000-3170 at 15-16, 798 So.2d at 932.

Justice Victory dissented on the basis that a writ was granted in Williams to determine a constitutional challenge, with the overruling of Boutte not even suggested. He explained DeBattista held a distributor of blood was strictly,liable in tort, and LSA-R.S. 9:5628 states it applies to actions “based on tort, or breach of contract, or otherwise, arising out of patient care.” Thus, the analysis need go no further than the plain language of the statute. Further, Justice Victory was of the opinion that Branch was in error, but it was unnecessary to overrule that case in Boutte because of the amendment to the MMA.

Justice Knoll dissented for the reasons espoused in Boutte, also finding the overruling of that recent case ill advised. Most importantly, she pointed out that the transfusion of blood is an integral part of the physician’s care of the patient and the “sale” of blood cannot be dissected reasonably from treatment. Justice Knoll was of the opinion that the court strayed from a proper interpretation of LSA-R.S. 9:5628 in Branch in stating that the statute did not reference a strict liability claim. The plain language, “tort ... arising out of patient care,” makes the article applicable to actions |inbased on strict liability for blood sold and used in transfusions. Patients do not buy and sell blood as pure commercial transactions; blood transfusions are an integral part of patient care.

Justice Traylor dissented for reasons assigned by Justices Victory and Knoll.

Language ofLSA-R.S. 9:5628:

As stated at the beginning of this opinion, the issue in this case is whether an individual who contracted hepatitis C from a blood transfusion administered by a hospital in 1979 can bring an action for damages 20 years later if the hospital is held strictly hable for providing contaminated blood. We resolve this issue in favor of the hospital by an analysis of the clear and unambiguous language of LSA-R.S. 9:5628.

In “Nothing is better settled than that in the construction of a law its meaning must first be sought in the language employed. If that be plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it.” United States v. Standard Brewery, Inc., 251 U.S. 210, 217, 40 S.Ct. 139, 140, 64 L.Ed. 229 (1920). Thus, interpretation of any statute begins with the language of the statute itself. SWAT 21 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302. When the wording of any of Louisiana’s revised statutes is clear and unambiguous, “the letter of it shall not be disregarded under the pretext of pursuing its spirit.” LSA-R.S. 1:4. If application of a clear and unambiguous statute does not lead to absurd results, the law shall be applied as written; no further interpretation may be made in search of the intent of the legislature. Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. ‘Words and phrases ... shall be construed according to the common and approved usage of the language.” LSA-R.S. 1:3. The proper connotation to be placed on a word in a statute does not depend on an isolated definition attributable to it; instead, the word and the context in which it is used shall be considered. Liter v. City of Baton Rouge, 258 La. 175,190, 245 So.2d 398, 403 (1971). Words and phrases “that may have acquired a peculiar and appropriate meaning in the law” shall be construed and understood according to that meaning. LSA-R.S. 1:3. Laws of limitation, which are in derogation of the general rights of tort victims, are to be strictly construed if there are any ambiguities in the law. Ruiz v. Oniate, 97-2412, p. 4 (La.5/19/98), 713 So.2d 442, 444. However, the rule 11gof strict construction applies only when the plain language of the statute and the rules of interpretation fail to illuminate definitively the legislature’s intent. Ruiz, 97-2412 at 5, 713 So.2d at 444-445. Statutes providing for prescriptive periods are to be strictly construed in favor of maintaining a cause of action. Lima v. Schmidt, 595 So.2d 624, 629 (La.1992). However, the clear words of the statute cannot be disregarded for the purpose of maintaining the action. See, Ruiz, 97-2412 at 5, 713 So.2d at 444-445.

On the dates of the blood transfusions in the instant case (1979), as well as in Branch (1976), Boutte (1981-1982), and Williams (1980), LSA-R.S. 9:5628 provided, in pertinent part:

A. No action for damages for injury or death against any ... hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. [Emphasis added.]

Louisiana Revised Statute 9:5628 begins with the words “[njo action for damages for injury.” (Emphasis added.) “No action” is clear, unambiguous, explicit, unequivocal, and dispositive. The parenthetical phrase which follows merely illustrates the types of actions which cannot be brought, including those sounding in tort and those sounding in contract. However, the statute then broadens the illustrative types of actions infinitely when it states “or otherwise.” Thus, not only those actions sounding in tort or contract, but actions sounding “otherwise” are barred if the action arises out of patient care. The word “otherwise” indisputably includes strict liability for a defective product. Products liability, which involves the sale of a product that |13causes an injury, emerged from the crossroads of tort and contract. In sum, no action, whether sounding in tort or contract or otherwise, can be brought after the prescriptive period if the action arises from patient care. As Justice Victory stated in his dissent in Williams, “We need go no further than the plain language of La. R.S. 9:5826.” Williams, 2000-3170 at 2, 798 So.2d at 933, Victory, J., dissenting.

We agree with OLOL’s argument that the phrase “whether based upon tort, or breach of contract or otherwise” in LSA-R.S. 9:5628 includes strict liability claims. The statute contains no qualifying or limiting language that would negate its application to a strict liability action brought against a hospital for an act arising out of patient care. The words “or otherwise” are all inclusive of actions regardless of the factual bases involved or the legal theories asserted. Further, applying the prescriptive period of LSA-R.S. 9:5628 to strict liability actions arising out of patient care is consistent with the legislative policy for which the statute was enacted, specifically, to avoid medical malpractice insurance crises. See Crier v. Whitecloud, 496 So.2d 305, 308-309 (La.1986).

Dissenting in Williams, Justice Knoll found the majority strayed far from the applicable language of LSA-R.S. 9:5628. Finding the sale of defective blood falls within the legal category of medical malpractice, she explained:

The strict liability claim for the sale of defective blood cannot be viewed in a vacuum as a simple sale. The transfusion of blood is an integral part of the physician’s or hospital’s treatment of the patient in certain medical circumstances — one in which the sale of blood cannot reasonably be dissected from treatment. Therefore, the strict liability for the sale of defective blood should be considered medical malpractice for purposes of La.Rev. Stat. Ann. § 9:5628 as construed in Branch.
The language “tort ... arising out of patient care” clearly encompasses delic-tual actions based on strict liability for blood sold and |14used in transfusions. It is clear and well-established that strict liability is a legal theory which may form the basis of a tort action and, as such, is simply a subspecies of the fault recognized in La. Civ.Code Ann. art. 2315. William CRAWFORD, 12 Louisiana Civil Law Treatise §§ 2.1, 2.5 (West Group 2000). Patients do not buy and sell blood as a pure commercial transaction; rather, blood is bought and used as an integral part of the care afforded patients at the time of medical treatment. Thus, although a transfusion of contaminated blood involves a defective product, the blood is inextricably tied to the patient’s care under La.Rev.Stat. Ann. § 9:5628. I find that the sale and transfusion of blood arise out of patient care and the word “tort” utilized therein encompasses the action in strict liability. Therefore, I find that La.Rev.Stat. Ann. § 9:5628 applies to the plaintiffs claim and [the claim] is perempted.
The Legislature’s selection of the word “tort” and the statute’s directive [in the second paragraph] that it be applied to “all persons whether or not infirm or under disability of any kind and including minors and interdicts,” evidence that La.Rev.Stat. Ann. 9:5628 is a far-reaching statute. However harsh the application of La.Rev.Stat. Ann. § 9:5628, mincing words and linguistic gymnastics should not be utilized to disregard the statutory language. Rather, litigants should seek redress from the Legislature to change the law.

Williams, 2000-3170 at 2-4, 798 So.2d at 935-936, Knoll, J., dissenting.

Justice Knoll’s analysis of the term “arising out of patient care” is consistent with the general principles of statutory construction and does not lead to absurd results.

As conceded by the majority in Williams, the application of LSA-R.S. 9:5628 to a plaintiffs claim does not depend upon whether the hospital is a private hospital qualified under the MMA, a private hospital not qualified under the MMA, or a public facility. The statute states its prescriptive periods apply to claims brought against “any ... hospital.” This language is as all inclusive as the statute’s provision that “[n]o action” brought against “any ... hospital” can escape the time limitations enacted by the legislature in 1975.

The majority of four in Williams, no doubt in good faith convinced of the correctness of their views, overruled Boutte, for five reasons: 1) Boutte broadly | -^construed and extended by construction the scope of LSA-R.S. 9:5628 by referencing the MMA’s expanded definition of malpractice; 2) by referencing the MMA’s definition, Boutte erred in determining the scope of “patient care” under LSA-R.S. 9:5628; 3) Boutte ignored the legislature’s placement of LSA-R.S. 9:5628 outside the MMA; 4) because Boutte was decided pursuant to the MMA, the holding is applicable only to private hospitals, leaving open a constitutional problem with the differences in the legislation for public institutions; and 5) Boutte ignores the legislative history of LSA-R.S. 9:5628.

However, the concerns voiced in Williams and used as a basis for overruling Boutte are alleviated when one acknowledges and gives effect to the clear and unambiguous language of the statute. The references in Boutte to the MMA are immaterial and do not extend by construction the scope of LSA-R.S. 9:5628 because the language of the statute is intrinsically broad. Boutte’s referencing the MMA’s expanded definition of malpractice is unnecessary in light of the statute’s command that “[n]o action” can be brought unless it is within three years of the alleged act or omission, “whether based upon tort, or breach of contract, or otherwise, arising out of patient care.” Likewise, as pointed out in Justice Knoll’s dissent in Williams, one need look no further than LSA-R.S. 9:5628 to conclude that the act of transfusing a patient with blood is an act “arising out of patient care.” The placement of LSA-R.S. 9:5628 in Title 9 instead of in the MMA indicates a legislative intent that the statute’s provisions apply to claims against “any ... hospital,” not just hospitals qualified under the MMA. Thus, the potential constitutional challenge perceived in Boutte and noted in Williams is averted by the statute’s application to private and public hospitals.

lisFinally, although the majority in Williams states Boutte ignores the legislative history of LSA-R.S. 9:5628, we find that criticism unwarranted. We have thoroughly re-examined the analysis of that statute by Justice Marcus, writing for a unanimous court, and we do not find it wanting.

Accordingly, we hold plaintiffs claim of strict liability in tort for the transfusing of blood contaminated with hepatitis C filed against the private hospital, which was not a qualified health care provider at the time of the blood transfusion, is prescribed pursuant to the provisions of LSA-R.S. 9:5628. All previous holdings inconsistent with this holding are hereby overruled.

Constitutional issues:

In his brief to this court David argues that if this court finds his claim is time-barred pursuant to LSA-R.S. 9:5628, he should be given the opportunity to amend his pleadings to assert that statute’s unconstitutionality as it applies to him.

All laws are presumed to be constitutional until the contrary is made to appear. As a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized. As a corollary of this rule, a litigant who fails to plead the unconstitutionality of a statute in the trial 117court cannot raise the constitutional issue in the appellate court. Johnson v. Welsh, 384 So.2d 395, 396-397 (La.1976) (constitutionality of statute not attacked by trial court pleadings prevents court of appeal from passing on the issue; the question of constitutionality was not before the court of appeal or before the supreme court).

David’s request to this court that the case be remanded to allow him to urge the unconstitutionality of LSA-R.S. 9:5628 does not satisfy any of the general rules noted above. The unconstitutionality of the statute has not been “specially pleaded” in any court, nor have the grounds for the constitutional challenge been particularized. But see, Liner v. Daughters of Charity of St. Vincent DePaul, Inc., 2000-1060 (La.5/26/00), 762 So.2d 628 (remand ordered to allow pleading of unconstitutionality despite fourth circuit’s ruling, at 99-1065, p. 4, 753 So.2d 336, 338, that issue was not properly pleaded in trial court). David merely requests we grant him an opportunity to assert the grounds for his constitutional challenge as we did for the plaintiff in Liner and in Boutte, 99-2402 at 8-9, 759 So.2d at 51.

Countering David’s request, OLOL points out that this court’s action in Boutte is inappropriate in the instant case because Boutte’s action against Hotel Dieu had not proceeded to trial when this court sustained the exception of prescription. In the instant case, David’s claim against OLOL has been tried on the merits and is now pending on appeal to the first circuit. Thus, there is no petition remaining in the trial court to be amended pursuant to LSA-C.C.P. art. 934, and, absent a remand of the exception of prescription, jurisdiction is no longer vested in the trial court.

| ^Nevertheless, equity suggests that since the jurisprudence addressing the applicability of LSA-R.S. 9:5628 to a cause of action such as David’s has been in a state of flux, remand is proper under the extraordinary circumstances encountered during this prolonged litigation. Further, this court has left open the issue of the constitutionality of LSA-R.S. 9:5628 as it applies to bar an action by a person suffering from a disease with a latency period in excess of three years. See Whitnell v. Silverman, 95-0112, p. 9 n. 13 (La.12/06/96), 686 So.2d 28, 29 n. 13. Pursuant to LSA-C.C.P. art. 2164, which permits appellate courts to remand cases when the interest of justice is served, we sustain OLOL’s exception of prescription, but remand this matter to the trial court to allow David an opportunity to file an amended petition urging the constitutional challenge.

DECREE

The judgments of the district court and the Court of Appeal, First Circuit, overruling the peremptory exception of prescription filed by Our Lady of the Lake Hospital, Inc. are reversed, and the exception is sustained. In lieu of dismissal of |19Rocky Wayne David’s claim, the case is remanded to the. trial court to allow plaintiff fifteen days from the finality of this opinion to file an amended petition pleading the unconstitutionality of the statute at issue. In default of such amendment, plaintiffs suit is dismissed. If the plaintiff elects to amend, the district court shall conduct proceedings according to law and consistent with the views expressed in this opinion.

REVERSED AND REMANDED.

CALOGERO, C.J., and JOHNSON, J., dissents and assigns reasons.

CALOGERO, Chief Justice,

dissents and assigns reasons.

In DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981), we held that hospitals (as opposed to blood banks) could be strictly liable for defective blood transfusions/ In recognizing the health care providers’ exposure to strict products liability claims arising out of defective blood transfusions, we reasoned that “[a] distributor of blood is strictly liable in tort when blood he places on the market creates an unreasonable risk of harm to others and, in fact, results in injury or disease to a human being.” 403 So.2d at 32. Later, in Shortess v. Touro Infirmary, 520 So.2d 389 (La.1988), we recognized a hospital’s strict liability arising out of the sale of defective blood, stating that “[t]he responsibility of a professional vendor or distributor is the same as that of a manufacturer.” 520 So.2d at 391.

- In Branch v. Willis-Knighton Med. Ctr., 92-3086 (La.4/28/94), 636 So.2d 211, we addressed the nature of a DeBattista claim against a hospital in terms of determining the applicable prescriptive period: whether such a claim would be controlled by the general tort prescriptive period in La. Civ. Code art. 3492 or the special medical malpractice prescriptive period in La.Rev.Stat. 9:5628. We concluded in Branch that such claims are not malpractice claims governed by § 9:5628, because the language in that special prescriptive statute neither “mention[s] strict liability or products liability,” nor “contain[s] the terms and concepts | ^indispensable to the definition, classification and administration of strict tort products liability actions.” 92-3086 at pp. 13-14, 636 So.2d at 217. Therefore, in Branch we held that a plaintiffs strict products liability action against a hospital arising out of defective transfused blood was governed by the general tort prescriptive period of Article 3492 rather than the special prescriptive period in § 9:5628. We found § 9:5628 inapplicable based on the nature of the plaintiffs action — a strict products liability claim arising out of the sale of defective blood — “[d]espite the close relationship between ‘patient care’ and the provision of blood to a patient.” Davis v. Parker, 58 F.3d 183, 188 (5th Cir.1995). The Branch court rejected the court of appeal’s broad construction of § 9:5628 reasoning that “there is no evidence that the legislature intended by R.S. 9:5628 to curb any type of litigation other than traditional malpractice actions” and, “because the statute grants immunities or advantages to a special class in derogation of the general rights available to tort victims, it must be strictly construed against limiting the tort claimants’ rights against the wrongdoer.” Branch, 92-3086 at pp. 9,14,636 So.2d at 215, 217.

Notwithstanding the Branch court’s specific rejection of a broad construction of § 9:5628, the court in Boutte v. Jefferson Parish Hosp. Serv. Dist. No. 1, 99-2402 (La.4/11/00), 759 So.2d 45, took just such an approach. In Boutte, the court reversed an appellate decision that followed Branch and held that “plaintiffs’ claim [for damages arising out of the transfusion of defective blood] is in the nature of a medical malpractice claim, regardless of the underlying legal theory (strict liability) used to support the claim.” Boutte, 99-2402 at p. 4, 759 So.2d at 48. The expressed basis for not following Branch was the 1976 amendment to the MMA’s definition of “malpractice” which added liability for defective blood within the Act’s scope. Boutte construed the effects of that amendment as not only expanding the scope of the |3MMA, but also expanding the scope of § 9:5628 to include DeBattista claims.

In Williams v. Jackson Parish Hosp., 00-3170 (La.10/16/01), 798 So.2d 921, we determined that Boutte had been wrongly decided. We reasoned in Williams that the application of the La.Rev.Stat. 9:5628 should not rest either on whether the defendant is a qualified health care provider under the MMA or on whether the claim alleged in the complaint is “medical malpractice” as defined in the MMA. Williams held that the application of § 9:5628 instead depends on whether the two restrictions set forth in this special prescription statute are met: (1) the defendant must fall within one of the categories of enumerated providers, and (2) the claim asserted must meet the statutory, conduct-based standard, i.e., the action, whether in tort, in breach of contract, or otherwise, must arise out of patient care. Williams, p. 12, 798 So.2d at 930.

In considering the second requirement, the majority in Williams disapproved of Boutte’s linking of the MMA’s definition of medical malpractice to the requirement in § 9:5628 that the action arise out of “patient care,” id., and cited a number of reasons why the Boutte court had unwisely strayed from following the approach set forth in Branch: First, the Boutte court was wrong to ignore the principle that prescriptive statutes are to be strictly construed in favor of maintaining the plaintiffs action, such that, absent clear legislative intent, prescriptive statutes having more than one reasonable interpretation should be construed against the party claiming prescription. Second, the Boutte court ignored the placement of § 9:5628 outside both medical malpractice acts, the MMA and the MLSSA, and thus ignored the conduct-based standard that should govern the scope of its application. Third, the Boutte court failed to limit the expanded scope of medical malpractice to the MMA, where it was contained, and whose special protections would apply. Fourth, the 14Boutte court, by relying exclusively on the definition of medical malpractice in the MMA covering private health care providers, ignored the constitutional implications arising from the subsequent removal of a similar definition from the MLSSA covering public health care providers. Finally, the Boutte court ignored the legislative history of § 9:5628, in that, despite the clear holdings of Branch in 1994 and De-Battista in 1981, the legislature had never amended the scope of 9:5628, and only recently enacted (1999) La.Rev.Stat. 9:5628.1 to cover strict liability claims arising out of defective blood. The effect of Williams, however, was fairly limited, since the legislature had already enacted La.Rev.Stat. 9:5628.1 to address the issue of prescription for a cause of action for defective blood.

Notwithstanding what appeared to be settled law and jurisprudence, a new majority today in one fell swoop specifically overturns Williams v. Jackson Parish Hosp., implicitly disapproves of Branch v. Willis-Knighton Med. Ctr., indirectly questions DeBattista v. Argonaut-Southwest Ins. Co., and reinstates the holding in Boutte v. Jefferson Parish Hosp. Serv. Dist. No. 1. The majority today does so even while recognizing that Boutte incorrectly relied on the definition of medical malpractice provided in the Medical Malpractice Act to determine the scope of La.Rev.Stat. 9:5628 and define an “action ... whether based upon tort, breach of contract or otherwise, arising out of patient care” as a medical malpractice claim to which La.Rev.Stat. 9:5628 is directed. The new majority goes even farther than asked and effectively decides the constitutional equal-protection and due process claims in favor of the defendant hospital that were never even considered in Williams, see Williams, p. 4 n. 8, 798 So.2d at 925 n. 8, and which have not yet been raised by the plaintiff in the instant case. Thus, a new majority scores quite an upset in regard to settled jurisprudence.

|BI see no reason, other than a court reconfigured in part and excluding one of the justices who was in the majority in Williams because recused in this case, for choosing to reconsider the reasons espoused in Williams, to which I continue to adhere. Like the majority in Williams, the majority today recognizes that the application of the La.Rev.Stat. 9:5628 does not rest either on whether the defendant is a qualified health care provider under the MMA or on whether the claim alleged in the complaint is “medical malpractice” as defined in the MMA. Recall that, as Williams held, the application of 9:5628 depends on whether the two restrictions set forth in this special prescription statute are met: (1) the defendant must fall within one of the categories of enumerated providers, and (2) the claim asserted must meet the statutory, conduct-based standard, i.e., the action, whether in tort, in breach of contract, or otherwise, must arise out of patient care. Williams, p. 12, 798 So.2d at 930. It is this second requirement which is the focus of the current dispute.

In considering the second requirement, the majority in Williams disapproved of Boutte’s linking of the MMA’s definition of medical malpractice to the requirement in La.Rev.Stat. 9:5628 that the action arise out of “patient care.” Id. The majority today ostensibly agrees that Boutte should not have referenced the MMA definition of malpractice to determine the scope of 9:5628, ante p. 49, but then it proceeds to apply to the meaning of the words, “arising out of patient care,” a construction advanced by the dissent in Williams, to find that the prescription statute has an “infinitely” broader scope than perhaps even the court in Boutte envisioned. Ante, p. 47. I disagree with the majority’s new approach to the second requirement and believe that it, too, is wrong for reasons similar to those expressed in the Williams critique of Boutte.

First, like the Boutte court, the new majority today ignores the principle that | (¡prescriptive statutes are to be strictly construed in favor of maintaining the plaintiffs action, such that, absent clear legislative intent, prescriptive statutes having more than one reasonable interpretation should be construed against the party claiming prescription. In my view, the prescription statute under review here, La. Rev.Stat. 9:5628, presents an ambiguity between its language, “whether based upon tort, breach of contract or otherwise, arising out of patient care,” and its preamble referencing “medical malpractice claims,” when viewed in light of the clear holdings in Branch and DeBattista that the sale of defective blood is not a traditional medical malpractice claim. The majority errs both in failing to recognize the existence of an ambiguity and in failing to apply the principle governing the construction of ambiguous statutes so as to maintain this plaintiffs cause of action.

Second, while the Boutte court erred in linking the definition of medical malpractice found in the MMA to the scope of La.Rev.Stat. 9:5628, despite its placement outside the MMA, the new majority today acknowledges the distinctive location where the statute is- placed, but rather than construe the statute conservatively, the majority extrapolates the “intrinsically broad” scope of the prescriptive statute, ante, p. 49, to cover, presumably, any act by any duly licensed hospital so long as it arises out of patient care. In so doing, the majority effectively defines a medical malpractice claim more broadly than even the legislature did in both medical malpractice acts, the MMA and the MLSSA. The majority today essentially holds that 9:5628 has no apparent limitation in scope other than that the action, whether based on tort, breach of contract or otherwise, must arise out of “patient care.”

Third, as the Williams majority noted, the Boutte court, by relying exclusively on the definition of medical malpractice found in the MMA, which covers private |7health care providers, ignored the constitutional implications arising from the subsequent removal of a similarly-worded definition from the MLSSA, which covers public health care providers. Though not asked to do so, the majority today avoids the constitutional problem presented by the reasoning in Boutte by finding that La. Rev.Stat. 9:5628 is “infinitely” broad in scope, ante, p. 47, and applies to “any ... hospital,” private or public, qualified or not.

Finally, like the Boutte court did, the majority today ignores the legislative history of La.Rev.Stat. 9:5628, in that, despite the clear holdings of Branch in 1994 and DeBattista in 1981, the legislature has never amended the scope of 9:5628, and only recently enacted La.Rev.Stat. 9:5628.1, in 1999, to cover strict liability claims arising out of defective blood transfusions. Adopting the Boutte reasoning, ante, p. 46 and n. 8, the majority focuses on the reference in the preamble of La. Rev.Stat. 9:5628 to “medical malpractice claims” and again refers back to the MMA and its definition of medical malpractice passed contemporaneously with La.Rev. Stat. 9:5628. However, the majority today, as did the Boutte court, ignores the settled jurisprudence of this court, which held that DeBattista claims are not traditional medical malpractice claims, such that the reference in 9:5628’s preamble to medical malpractice claims at the least creates an ambiguity that should be resolved in favor of maintaining under La. Civ.Code art. 8492 the plaintiffs action in strict liability for the sale of defective blood.

The Williams majority in my view had the correct, conduct-based approach to applying the second requirement of La.Rev. Stat. 9:5628. A DeBattista claim is not an action arising from patient care; instead, it is a strict products liability claim arising from the sale of a defective product, blood. Because the DeBattista claim is not a traditional medical malpractice claim, it is not the type of claim “based upon tort, I «breach of contract or otherwise, arising out of patient care” to which the prescriptive periods of La.Rev.Stat. 9:5628 are directed. Instead, such claims, to the extent that they are not now covered by La.Rev. Stat. 9:5628.1, should be governed by the general tort prescriptive periods found in La. Civ.Code art. 3492. Accordingly, in my view, the Williams court correctly overruled Boutte, and today’s majority errs in overruling Williams.

For these reasons, I respectfully dissent from the majority’s decision today overruling Williams, reinstating Boutte, and reversing the district court’s ruling denying the defendant’s peremptory exception of prescription, as well as the decision’s consequence, which is to take away this plaintiffs judgment of over $2 million in damages.

JOHNSON, J.,

dissenting.

We have consistently held that the limiting provisions of the Medical Malpractice Act are to be strictly construed as they are in derogation of the rights of tort victims. Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116; Sewell v. Doctors Hosp., 600 So.2d 577 (La.1992). The principal purpose of the Act is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patients Compensation Fund. Taylor v. Clement, 02-561 (La.App. 3 Cir. 12/4/02), 832 So.2d 1089. As long as the health care provider remains qualified under the Act, the health care provider and its insurer are liable for malpractice only to the extent provided in the Act. Id.

In Bouttte v. Jefferson Parish Hosp. Ser., 99-2402 (La.4/11/00), 759 So.2d 45, this Court recognized that La. R.S. 9:5628 applies strictly to medical malpractice cases. It has been held that a non-qualified health care provider cannot avail itself of the primary benefits of paying into the PFC, i.e. cap on damages and initial submission of claims to the medical review panel. Hardy v. Blood Systems, Inc., 01-0134, 794 So.2d 13 (La.App. 3 Cir.2001). It seems logical that a non-qualified health care | ^provider should, likewise, not be allowed to avail itself of the prescriptive period of La. R.S. 9:5628.

In the instant case, Our Lady of the Lake Hospital was not a “qualified health care provider” at the time of plaintiffs blood transfusion under either the private or public Medical Malpractice Acts. It did not pay any premiums on a policy'of insurance under either Act. Therefore, the general rules of tort law, including prescription, should apply. Accordingly, Our Lady of the Lake Hospital should not be allowed to avail itself of the prescriptive period provided for in La. R.S. 9:5628.

       Retired Judge Moon Landrieu, assigned as Justice ad hoc, sitting in place of Justice Catherine D. Kimball, recused.

      . The three-year limitation is prescriptive, not peremptive. Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 724 (La.1986), reaff'd in State Board of Ethics v. Ourso, 2002-1978, p. 4 (La.4/9/03), 842 So.2d 346, 349.

      . During the time OLOL's writ application was pending in the court of appeal, a bench trial on the merits was conducted. The trial court rendered judgment for plaintiff on July 15, 2002, awarding over two million dollars in damages. Thereafter, OLOL perfected a timely suspensive appeal and filed its brief with the appellate court.

      .The statutes are called "blood shield statutes” because the providers of blood are shielded from liability.

      . See Faucheaux v. Alton Ochsner Medical Foundation Hospital and Clinic, 468 So.2d 720, 721 (La.App. 5 Cir.), rev’d on other grounds, 470 So.2d 878 (La.1985).

      . But see William J. Sharp, Note, DeBattista v. Argonaut Southwest Ins. Co.: The Meaning of "Unreasonable Danger” in Louisiana Products Liability, 42 La. L.Rev. 1453, 1459 n. 26, wherein the Sharp states the appellate courts seemed to espouse the preferable theory and elaborates:
      The legislative amendment of article 1764 classifying blood as a service and removing the actions based on implied warranties of merchantability and fitness was passed in 1968, before Weber and strict liability for products were part of Louisiana law. That amendment appears to have been an attempt to negate all causes of action that could arise concerning contaminated blood except the action in negligence. It is not an unreasonable interpretation of legislative intent for the appellate courts to assume that if strict liability had been available in 1968, the same policy reasons which compelled the legislature to remove all actions but negligence also would have led to the elimination of the strict liability action for blood.
      The same point was made by the dissent in DeBattista, and again by the dissent in Branch v. Willis-Knighton Medical Center, 92-3086 (La.4/28/94), 636 So.2d.211.

      . In 1999, the Louisiana Legislature again addressed the issue of prescription of a cause of action for defective blood, enacting LSA-R.S. 9:5628.1, which now provides in pertinent part:
      A. No action for damages against any healthcare provider as defined in this Section, whether based on negligence, products liability, strict liability, tort, breach of contract, or otherwise, arising out of the use of blood or tissue ... shall be brought unless filed ... within one year from the date of the alleged cause of action or other act, omission, or neglect, or within one year from the date that the alleged cause of action or other act, omission, or neglect is discovered ...; however, except as provided in Subsection B, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the act, omission, or neglect. The "Subsection B” referenced in LSA-R.S.
      9:5628.1(A) provides that the statute is remedial and without regard to the date when the alleged cause of action or other act, omission, or neglect occurred. However, Subsection B grandfathers in causes of action occurring prior to July 1, 1997, but provides that as to those actions, suit must be filed by July 1, 2000. Further, the provisions of the new legislation did not apply to legal proceedings filed prior to the effective date of the LSA-R.S. 9:5628.1, June 30, 1999.

      . See discussion infra explaining how that constitutional issue is resolved by a correct reading of LSA-R.S. 9:5628 without reference to the MMA.

      . We pretermit until another time the issue of whether health care providers who administered blood contaminated with hepatitis C prior to 1975 can be held strictly liable to an injured patient. In Seal v. St. Tammany Parish Hospital Service District No. 1, 2000-1489 (La.6/30/00), 765 So.2d 1057, this court reversed "for the reason assigned by [then] Judge Weimer in his dissenting opinion.” That dissenting opinion stated the defendants were entitled to present a defense relative to whether a blood transfusion, given in 1973, which was alleged to be the cause of plaintiff's hepatitis C, was "unavoidably unsafe” pursuant to Restatement (Second) of Torts § 402A cmt k (1965). This defense minimizes the differences between actions in strict liability and actions in negligence. The dissent further noted:
      In DeBattista, the defendants contended that the danger presented by the blood was reasonable because the screening test used to detect Hepatitis B, a known contaminant, was not one hundred (100%) percent effective, and that this relatively small percentage of unwholesome blood which the test could not detect was not unreasonably dangerous in comparison to the larger amount of blood which had properly been screened given the social utility of blood. DeBattista, 403 So.2d at 30. This is a different argument than is being presented by defendants in the instant case, i.e., that blood is unavoidably unsafe, and thus not unreasonably dangerous, when it is contaminated by an unknown and undiscovered virus for which a screening test did not exist at the time of the transfusion. That the defendants' arguments in DeBattis-ta were rejected should not be interpreted to foreclose all arguments in which the risk presented by blood is contended to be reasonable.

        Seal v. St. Tammany Parish Hospital Service District No. 1, 99-2914, (La.App. 1 Cir. 1/27/00), reh'g denied, (La.App. 1 Cir. 4/27/00), 848 So.2d 1.

        See Chauvin v. Sisters of Mercy Health System, St. Louis, Inc., 2001-1834 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, wherein the appellate court followed Seal in holding that in 1963 the presence of hepatitis C in the plaintiff's transfusion was an "unavoidably unsafe” condition for which the defendant hospital could not be held strictly liable.
      Although the facts in DeBattista made it unnecessary to discuss comment k, DeBattista relied heavily on the Restatement (Second) of Torts § 402A. However, the current nationwide development of the law on this issue makes such reliance questionable. The RESTATEMENT (THIRD) of TORTS: PRODUCT LIABILITY (1998) declares in section 19C that "human blood and human tissue, even when provided commercially, are not subject to the rules of this Restatement.” See George W. Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, 109 Yale L.J. 1087, 1104 (2000).

      . Justice Marcus succinctly stated:
      While the word "malpractice” is not found within the text of the Act, we have held on numerous occasions that La. R.S. 9:5628 is a special provision designed to cover medical malpractice claims. It was enacted in 1975 in the same session of the legislature that enacted the Medical Malpractice Act. The preamble to La. R.S. 9:5628 as originally enacted stipulates that it was added to provide for a maximum prescriptive period and abandonment with respect to "medical malpractice claims.” The statute has been amended from time to time to expand the class of defendants and claimants governed by the limitation periods. Preambles to amendments have continued to recite that the prescriptive period is relative to actions for "medical malpractice.” It is clear that La. R.S. 9:5628 was intended by the legislature to govern "medical malpractice claims.” The title and preamble to La. R.S. 9:5628 may properly be consulted to confirm that intent. [Citations and footnotes omitted.]

        Boutte, 99-2402 at 5, 759 So.2d at 48.

      . Article 934 provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

      . When David filed his action in February 1999, the controlling jurisprudence was Branch, 92-3086, 636 So.2d 211, wherein this court held the three-year prescription provision of LSA-R.S. 9:5628 did not apply to strict tort liability actions arising out of the sale of blood in a defective condition unreasonably dangerous to the user or consumer. Thus, OLOL’s exception of prescription was denied in the trial court. However, by the time the first circuit considered the issue, Boutte, 99-2402, 759 So.2d 45, had been decided, which caused the first circuit to reverse the trial court’s denial. This court granted David's writ application, in which he requested, in the alternative to reversal of the first circuit’s decision, that the case be remanded to allow him to amend his pleading and raise the issue of the unconstitutionality of LSA-R.S. 9:5628. Instead of considering the correctness of the first circuit ruling, this court remanded the matter to the court of appeal for an opinion. David v. Our Lady of the Lake Hospital, Inc., 2001-0656 (La.5/11/01), 792 So.2d 3. Before the appellate court could render an opinion, Williams, 00-3170, 798 So.2d 921, was decided. Thus, when David filed to set this matter for trial on the merits and opposed OLOL's motion for continuance on the grounds the exception of prescription was pending in the appellate court, there was no need for David to attack the constitutionality of LSA-R.S. 9:5628.

      . The combination of factors encountered in the instant case distinguishes it from Mosing v. Domas, 2002-0012, pp. 13-14 (La. 10/15/02), 830 So.2d 967, in which we disallowed a belated constitutional due process argument. In Mosing, the defendant, while not required to appeal because the trial court judgment was entirely in its favor, nevertheless filed on appeal, raising several arguments, but omitting the constitutional plea.

      . The remand to allow the plaintiff the opportunity to amend his petition to assert a claim challenging the constitutionally of La.Rev. Stat. 9:5628 is the sole remaining issue.

      . La. R.S. 9:5628 provided:
      No action for damages for injury or death against any ... hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of the discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.