Herron v. Pendleton Memorial Methodist Hospital

527 So. 2d 344, 1988 La. App. LEXIS 1096, 1988 WL 46361
CourtLouisiana Court of Appeal
DecidedMay 12, 1988
DocketNo. CA-8455
StatusPublished
Cited by2 cases

This text of 527 So. 2d 344 (Herron v. Pendleton Memorial Methodist Hospital) 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
Herron v. Pendleton Memorial Methodist Hospital, 527 So. 2d 344, 1988 La. App. LEXIS 1096, 1988 WL 46361 (La. Ct. App. 1988).

Opinion

PLOTKIN, Judge.

This appeal arises from a medical malpractice action brought by appellant, John R. Herron, Sr., against Pendleton Memorial Methodist Hospital (Methodist). Defendant/appellee initially pled prescription, but the trial court refused to rule on that issué pretrial. After the plaintiff had presented his case in chief at a jury trial, Pendleton urged its exception of prescription or, alternatively, a directed verdict. The trial court sustained the exception of prescription. We reverse and remand.

The facts as revealed by the pleadings and the record are as follows:

Mr. Herron saw Dr. Maumus, his treating physician, on September 29, 1983, in anticipation of prostate surgery. In the hospital record of Mr. Herron’s history, Dr. Maumus noted his patient’s symptoms other than the prostate complaints:

(t)his 65 year old man, who has a long history of uncontrolled diabetes mellitus, who also has a history of arteriosclerotic cerebrovascular disease, was seen in the office during the past month prior to admission with uncontrolled diabetes. .... The patient also states that he has had some confusional episodes over the past month_ The patient has a number of medical problems as an adult, including ... cerebrovascular insufficiency, diabetes mellitus, hypertension, exogenous obesity. The patient complains of burning sensation involving [345]*345the left arm and left leg. Some minimal weakness is noted on this side.

On October 10, 1983, Dr. Norman Galen performed prostate surgery on appellant at Methodist Hospital. Mr. Herron began complaining of pain in his arms and hands as soon as he emerged from the recovery room according to testimony of his wife and daughters. His elbows were red immediately after the operation and twenty-four hours later became blue and bruised looking. Appellant’s daughter, Ms. Jeanette Gierlings, testified that she told Dr. Maumus on October 10 or 11 that her father’s elbows were painful and discolored and he responded, “(E)verything is going to be okay, don’t worry about it. It’s going to get better.” Appellant was released from Methodist October 16, 1983. He testified that he complained of his elbow discomfort to Dr. Maumus three or four times, both before and after his release from the hospital. Each time he was assured that his condition would improve.

Because of continuing pain in his arms and progressive numbness in the fingers on each hand, appellant saw Dr. Raeburn Llewellyn, a neurosurgeon, February 3, 1984. Dr. Llewellyn diagnosed ulnar nerve neuralgia, a condition in which the ulnar nerve is entrapped and damaged resulting in a loss of strength and sensation in the fourth and fifth fingers of each hand. The ulnar nerve damage, Dr. Llewellyn testified, may have been generated by “specific trauma” which occurred during Mr. Her-ron’s “operative exposure” but, the doctor noted, he would have to see some medical evidence presented in order to say that the operative exposure was the cause.

Plaintiff filed a medical malpractice action with the Insurance Commissioner on October 16, 1984. The alleged malpractice consists of Methodist’s failure to protect Mr. Herron from injury while he was under anesthesia. The trial court found that Mr. Herron should have been on notice that some thing unusual had happened on October 10,1983, the day of surgery, or at least by October 11 because at that time he was painfully aware of the condition of his arms.

La.R.S. 9:5628 which governs prescription in malpractice actions provides:

No action for damages for injury or death against any physician ... or 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, ommission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect....

Appellant argues that the discovery date is February 3,1984, the day he saw Dr. Llewellyn, and realized the causal connection between his prostate surgery and his painful elbows. He contends that his case was filed timely, i.e., within one year of February 3, 1984.

In Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (1970), the Louisiana Supreme Court held that an injured party does not need actual knowledge of the conditions to start the running of prescription as long as there is “constructive notice,” i.e., “whatever is notice enough to excite attention ... and call for inquiry.”

More recently, in Young v. Clement, 367 So.2d 828, 830 (La.1979), the Supreme Court declared:

(prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his neglect.

The plaintiffs in Young brought suit on November 20, 1975, for wrongful removal of healthy tissues and for blockage of the ureter. The initial operation occurred January 26, 1973, and a corrective procedure to open the ureter took place February 1, 1973. By July, 1975, the plaintiffs had actual knowledge of the cause of the blockage. The trial court found the plaintiffs had constructive knowledge after the February, 1973, surgery, even though they did not ask, “Why the blockage?”, and no one offered an explanation until July, 1975. The Court of Appeal affirmed the trial [346]*346court. The Supreme Court decided the case had not prescribed, reasoning:

(prescription does not run against one who is ignorant of the existence of facts which would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his neglect. Henson v. St. Paul Fire and Marine Insurance Co., 363 So.2d 711 (La.1978). Roy Young ... and his wife both had confidence in Dr. Clement, who had treated her since October of 1970. Mrs. Young had kidney trouble since she was eleven. She had been hospitalized and treated for urinary tract infections. Once she was hospitalized for pain in the kidney area very much like that suffered after the January 26, 1973 operation.... The record discloses no evidence that the Youngs should have suspected that the reason for the blockage of the ureter was a negligent stitch by Dr. Clement.... Young, 367 So.2d at 830.

Like Mrs. Young, Mr. Herron has had numerous physical problems and has demonstrated complete confidence in Dr. Mau-mus. Prior to admission to Methodist, Mr. Herron complained of a burning sensation in his left arm. At trial appellant testified that when Dr. Maumus told him that his arms would get better, “I believed my doctor. He’s a good doctor.”

The Supreme Court addressed this issue again in Cordova v. Hartford Acc. & Indent. Co., 387 So.2d 574 (La.1980), a case in which the trial court dismissed a medical malpractice claim on an exception of prescription and the Court of Appeal affirmed. The plaintiff in Cordova had a vasectomy and later suffered a loss of libido and the shrinkage of one testicle. The Supreme Court reversed, stating:

(t)he law does not impose upon a layman the obligation to self-diagnose a psycho-pathological condition which reproductive biologists themselves do not fully understand. Plaintiff had confidence in his physicians’ skill and judgment.

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Bluebook (online)
527 So. 2d 344, 1988 La. App. LEXIS 1096, 1988 WL 46361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herron-v-pendleton-memorial-methodist-hospital-lactapp-1988.