King v. OUR LADY OF THE LAKE MED. CENTER

623 So. 2d 139, 1993 WL 254381
CourtLouisiana Court of Appeal
DecidedJuly 2, 1993
Docket92 CA 1193
StatusPublished
Cited by1 cases

This text of 623 So. 2d 139 (King v. OUR LADY OF THE LAKE MED. 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
King v. OUR LADY OF THE LAKE MED. CENTER, 623 So. 2d 139, 1993 WL 254381 (La. Ct. App. 1993).

Opinion

623 So.2d 139 (1993)

Wayne L. KING
v.
OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, et al.

No. 92 CA 1193.

Court of Appeal of Louisiana, First Circuit.

July 2, 1993.

*140 Michael R. Connelly, Baton Rouge, for plaintiff-appellant Wayne L. King.

*141 T. MacDougall Womack, Baton Rouge, Patrick C. Blanchard, Donaldsonville, for defendant-appellee Our Lady of the Lake Regional Medical Center.

Before CARTER, LeBLANC and PITCHER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment in an action for medical malpractice.

FACTS

On January 7, 1987, Wayne L. King, plaintiff, was admitted into Our Lady of the Lake Regional Medical Center ("OLOL"). On January 12, 1987, he underwent double coronary bypass surgery. Shortly after the surgery, plaintiff began experiencing severe abdominal pains. On January 18, 1987, Dr. L.P. Laville, Jr. diagnosed plaintiff with gallbladder problems and ordered that he undergo a cholecystectomy (removal of the gallbladder). Dr. Laville spoke with plaintiff and his sister, Mrs. Arlene Babineaux,[1] explaining the risks of the surgery, and instructed the hospital staff to get the written consent form signed. On the morning of January 19, 1987, Mrs. Babineaux signed the hospital's surgical release form. During the surgery, it was discovered that plaintiff's gallbladder had previously been removed.[2]

On September 9, 1988, plaintiff filed the instant medical malpractice action against OLOL for unnecessary surgery.[3] Plaintiff also alleged that while he was recuperating from the bypass surgery, but prior to the surgery for the removal of his gallbladder, OLOL employees administered morphine to him, despite plaintiff's allergy to morphine being specifically noted on his chart and medical records. Plaintiff contended that the administration of the morphine and certain other drugs caused the abdominal pains which the defendants concluded were the result of gallbladder problems. Plaintiff further alleged that he was awake and conscious during the period in which his gallbladder surgery was being discussed and that he was capable of making a decision regarding surgery. The petition also alleged that plaintiff was required to undergo an additional surgery for a hernia which developed as a result of the gallbladder surgery weakening the abdominal wall.[4]

The trial was held on January 27, 1992. On February 28, 1992, the trial court issued written reasons, finding that OLOL was not at fault in obtaining the medical release from plaintiff's sister because plaintiff was not in any condition to sign the release. The court further found that OLOL had no other involvement in plaintiff's unnecessary surgery. However, the court found that OLOL was at fault in administering morphine and codeine to plaintiff since he was allergic to these drugs and the medical records indicated such fact. The court found that the administration of the drugs constituted a battery upon plaintiff. In the judgment, signed on March 23, 1992, plaintiff was awarded $1,500.00 in damages. From this judgment, plaintiff appealed, contending that the trial court erred in the following respects:

1. The trial court erred manifestly in concluding that the hospital was not at fault in obtaining surgical consent from appellant's sister instead of appellant.
*142 2. The trial court erred manifestly in concluding that "other than obtaining the release, the hospital had no other involvement in Mr. King's unnecessary surgery."
3. The trial court erred manifestly in concluding that no physical damage resulted to appellant when the hospital administered drugs to him which he was allergic to and awarding only $1500.00 to appellant.

CONSENT

Plaintiff contends that the trial court erred in not finding that OLOL was at fault for obtaining surgical consent from plaintiff's sister, rather than from plaintiff himself. Plaintiff claims that he "was perfectly capable of giving or refusing his consent for the surgery."

Consent to medical treatment is addressed in LSA-R.S. 40:1299.40 A, which provides, in pertinent part, as follows:

[W]ritten consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which ... is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. (Emphasis added)

LSA-C.C. art. 1918 addresses legal capacity, stating that "all persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting." The expression "persons deprived of reason" is designed to include all of the varieties of derangement that have been acknowledged by the Louisiana jurisprudence. Comments, LSA-C.C. art. 1918. One type of person who is "deprived of reason" is one who is under drug sedation. Brumfield v. Paul, 145 So.2d 46, 47 (La.App. 4th Cir.1962).

A review of the testimony given at trial in the instant case indicates that plaintiff was under heavy sedation during the period between the bypass surgery and the surgery to remove his gallbladder.

Dr. Ginger Shows testified by deposition that during the weekend between the bypass surgery and the gallbladder surgery plaintiff was "extremely agitated and not very coherent." She testified as follows:

Q. At what time, if at any time, prior to the exploratory surgery, did you feel that Mr. King needed the assistance of a family member or other person to make decisions or to give a meaningful decision as to whether or not he should have surgery?
A. Well, over the weekend he had been having so much pain and had required large amounts of IV narcotics. And it was about that time that I felt like, you know, he really wasn't capable of making decisions about things like that. He was in a great deal of pain, and I believe it was then that we had to call on the family members to advise us as to what route we wanted to take.

The day prior to plaintiff's gallbladder surgery, Dr. Laville spoke with plaintiff and his sister regarding the surgery. Dr. Laville testified as follows:

I met Mr. King and I examined him and examined his records, talked to him as best I could. Mr. King was not a good historian at that point, in that he was having decided abdominal discomfort and he was being treated for this with narcotics, and his conversation was not acute, was not one that you could really hang your hat on, if you will. On the other hand, his sister, a Mrs. Babineaux, was there and she was as alert as human being, and I was able to talk with her.[5]

The testimony of Mrs. Babineaux reveals that her brother was in no condition to consent to surgery. She testified as follows:

Q. Had you talked to him the day before [the morning of her brother's surgery, January 19, 1987]?
A. About nothing. I spoke to him, you know. I mean, there was no conversation.

*143 Plaintiff's own testimony, as a whole, indicates that he remembers very little about what was happening or about his condition during the period preceding the gallbladder surgery. Even plaintiff's own expert witness, Dr. Joseph Bussey, acknowledged that plaintiff was so "disoriented" that he could not give his prior medical history to Dr.

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Related

Jordan v. Ryan
684 So. 2d 1030 (Louisiana Court of Appeal, 1996)

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623 So. 2d 139, 1993 WL 254381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-our-lady-of-the-lake-med-center-lactapp-1993.