Hebert v. Confederate Memorial Medical Center

381 So. 2d 545, 1980 La. App. LEXIS 3576
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1980
Docket14043
StatusPublished
Cited by4 cases

This text of 381 So. 2d 545 (Hebert v. Confederate Memorial Medical Center) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hebert v. Confederate Memorial Medical Center, 381 So. 2d 545, 1980 La. App. LEXIS 3576 (La. Ct. App. 1980).

Opinion

381 So.2d 545 (1980)

Elzie HEBERT, Plaintiff-Appellant,
v.
CONFEDERATE MEMORIAL MEDICAL CENTER et al., Defendants-Appellees.

No. 14043.

Court of Appeal of Louisiana, Second Circuit.

February 25, 1980.
Rehearing Denied April 3, 1980.

Bruscato & Loomis by Anthony J. Bruscato, Monroe, for plaintiff-appellant.

William M. Cady, Asst. Atty. Gen., Shreveport, for defendants-appellees.

Before PRICE, JONES and McCLENDON, JJ.

En Banc. Rehearing Denied April 3, 1980.

JONES, Judge.

In this medical malpractice action against Louisiana Health & Human Resources Administration, plaintiff, Elzie Hebert, appeals the dismissal of his suit by the sustaining of an exception of prescription. We find the exception of prescription has no merit and reverse the judgment.

Plaintiff entered Confederate Memorial Hospital in Shreveport on August 23, 1971 to undergo a laminectomy. On August 31st, five days after the low back surgery was performed at the L-4 and L-5 level, an orderly employed by Confederate gave plaintiff an enema which caused plaintiff great pain. Evidence tends to establish that the enema device was not injected into the body in the proper place, but rather was forced into the area alongside the rectal canal. Plaintiff's problem of pain in his *546 abdomen and rectum was first diagnosed as a paralytic ileus caused as a result of the anesthesia given at the time of the disc operation. When plaintiff's wife examined him, she found patches of what appeared to be dried black blood in the area, and she then asked that a doctor examine him. When Dr. Charles Byrd examined plaintiff on September 4, 1971 he was horrified to find air in the tissues of the rectum. He immediately had a proctoscopic examination performed upon plaintiff which revealed that the lower wall of the rectal area was black in color and necrotic in composition. The gangrene in the rectum created a life-threatening situation because of the dangers of the massive abscesses and the resulting sepsis, a rapidly spreading bloodstream infection. Plaintiff mentioned the enema to Dr. Byrd, but Dr. Byrd did not associate the painful enema with plaintiff's rectal problem. Dr. Byrd was puzzled as to the cause of this condition because he did not know how the infection in the rectal area was related to the laminectomy. Dr. Byrd consulted with a staff physician of the hospital, and it was decided to immediately perform a loop colostomy which would prevent bowel movements in this area.

At the time the loop colostomy was performed an attempt was made to remove as much of the necrotic tissue in the rectal area as possible. Plaintiff later underwent another operation for removal of more of the necrotic tissue. These two surgeries failed to heal and repair the grossly infected rectum, and it became necessary on September 23rd to perform a total colostomy which permanently removed plaintiff's colon. Plaintiff was discharged from Confederate on October 15, 1971.

Plaintiff testified he was unaware of the reason for the colostomy, but he thought the cause of his colostomy may have been cancer because his family physician, Dr. Tugwell, told him, after his discharge from the hospital, that malignancies of the colon were usually the reason for colostomies. Plaintiff first became aware that the colostomy was caused by the enema in February, 1974 when he went to Confederate for a check-up. While there he overheard two doctors discussing the cause of his colostomy as being an enema. After having overheard this conversation, plaintiff secured all of his medical records from Confederate and instituted this suit on December 31, 1974.

The trial judge stressed in his reasons for judgment, wherein he found plaintiff had constructive knowledge of his malpractice action more than one year before the suit was filed, the following notation from the emergency operation report wherein the loop colostomy was performed on September 5, 1971:

"Approximately 1½ weeks post-op the patient noted after receiving an enema severe pain in the rectal area."

The trial court concluded:

"The court holds that plaintiff had the notice required by law to begin the running of prescription and he had this notice from the time the enema was administered combined with the date of the emergency surgery Sept. 5, 1971."

A review of plaintiff's operation report of September 5, 1971 reflects that the full context of the section of the report from which the trial court obtained the quoted language reads as follows:

"49 year old white male admitted to the Orthopedic Service and underwent surgery on his lower back. Approximately 1½ weeks post op the patient noted after receiving an enema severe pain in the rectal area. He was found to have a necrotic area on the left anal wall and at proctoscopy, the necrosis extended up the rectum involving the left wall to approximately 11 cms. It was felt the patient should have a diverting colostomy with excision and drainage of the necrotic anal and rectal tissue."

We do not construe this language as stating that Dr. Bagley, who signed the operating report, was diagnosing the cause of the gangrene in plaintiff's rectum as being the enema. Dr. Byrd, who assisted in the operation, performed the initial examination when the gangrene was discovered in plaintiff's rectum. He testified he was told of *547 the enema but did not relate the enema to the gross infection which required the emergency surgery. Of further significance with regard to evaluating the language of the operation report of September 5 is the following statement contained on the operation report of September 23rd when the total colostomy was performed:

"49 year old white male who developed gangrene of the rectum of unknown etiology and had extensive debridement. He was presented to the staff and it was recommended that he have abdominoperineal resection since this area could never be adequately reconstructed and repaired. He also had a diverting colostomy done previously."

This report was signed by Dr. Johnson, but the report reflects that Drs. Bagley and Williamson assisted him in the performance of the colostomy. It would seem that if Dr. Bagley had related the gangrene of the rectum to the enema that at the time this operation was performed he would have related this information to Dr. Johnson and it would have been incorporated in the report as the cause of the gangrene, rather than the statement that the gangrene was of "unknown etiology". Dr. Williamson, who had assisted in this surgery, examined plaintiff in the out-patient clinic on January 8, 1972, and in his description of this examination referred to the colostomy as being required by "gangrene of the rectum beyond repair secondary to an unknown infection".

These observations establish that at least Drs. Byrd, Johnson and Williamson did not relate plaintiff's enema to the cause of the gangrene which required the colostomy. Though Dr. Bagley had alluded to the enema in the operation report signed by him on September 5th, this report contained no definitive statement by Dr. Bagley that he concluded the enema caused the gangrene.

Plaintiff's family physician, Dr. Tugwell of Bastrop, with the authority of plaintiff, sought plaintiff's medical records from Confederate having as one purpose of the request to determine the cause for the colostomy. Dr. Tugwell's request was dated June 30, 1972 and read as follows:

"Elzie Hebert
Will you please send me the medical records on the above named patient.

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381 So. 2d 545, 1980 La. App. LEXIS 3576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-confederate-memorial-medical-center-lactapp-1980.