Sebastien v. McKay

649 So. 2d 711, 1994 WL 659422
CourtLouisiana Court of Appeal
DecidedNovember 23, 1994
Docket94-203
StatusPublished
Cited by13 cases

This text of 649 So. 2d 711 (Sebastien v. McKay) 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
Sebastien v. McKay, 649 So. 2d 711, 1994 WL 659422 (La. Ct. App. 1994).

Opinion

649 So.2d 711 (1994)

Voris SEBASTIEN, et al., Plaintiffs-Appellees/Appellants,
v.
Douglas W. McKAY, M.D., et al., Defendants-Appellants/Appellees.

No. 94-203.

Court of Appeal of Louisiana, Third Circuit.

November 23, 1994.

*712 Leslie J. Schiff, Anne Elizabeth Watson, Opelousas, for Voris Sebastien, et al.

Gary McGoffin, LaFayette, for Douglas W. McKay M.D. et al.

Before DOUCET, COOKS, SAUNDERS, WOODARD and DECUIR, JJ.

SAUNDERS, Judge.

This appeal arises from a medical malpractice action.

On October 3, 1989, Dr. Douglas McKay, an orthopedic surgeon, performed back surgery on Voris Sebastien, a seventy-four year old man, to relieve leg and back pain. After surgery, a surgical drain was left in place temporarily to drain excess blood and fluid. Such drains are generally removed six to seventy-two hours after surgery. The day after surgery, Dr. McKay attempted to remove the drain from Mr. Sebastien's back. After several attempts, the drain broke with part coming out and part remaining in Mr. Sebastien's back. Dr. McKay decided to leave the remainder in Mr. Sebastien's back.

For approximately two months, Mr. Sebastien appeared to recover normally. Then he began having pains and running fever. Various tests were run in an unsuccessful attempt to locate the source of the infection.

Finally, in April 1990, while Mr. Sebastien was hospitalized at our Lady of Lourdes *713 Hospital in Lafayette, Louisiana, for rehabilitation, radiological studies were done which revealed the presence of the drain fragment. Upon being informed that the drain was in Mr. Sebastien's back, his family agreed to allow it to be removed. After its removal, Mr. Sebastien's condition improved. According to the discharge summary from Lourdes, he regained his ambulatory status, was able to walk with a cane, and was discharged to his daughter's home on April 20, 1990. He received physical therapy until May 12, 1990, when he was discharged. At that time, he continued to have problems with tightness in the hamstring muscle on the left side.

Mr. Sebastien and his two adult children pursued this malpractice action against Dr. McKay and others. The matter was presented to a medical review panel which found only Dr. McKay to have violated the applicable standard of care. Its language follows:

THE EVIDENCE SUPPORTS THE CONCLUSION THAT THE DEFENDANT, DR. DOUGLAS W. MCKAY, FAILED TO COMPLY WITH THE APPROPRIATE STANDARD OF CARE AS CHARGED IN THE COMPLAINT IN THAT HE FAILED TO REMOVE THE SURGICAL DRAIN FROM THE PLAINTIFF'S BACK. THE CONDUCT WAS A FACTOR IN THE RESULTANT DAMAGES. THE PLAINTIFF DID NOT SUFFER ANY PERMANENT IMPAIRMENT OR DISABILITY AS A RESULT OF THE CONDUCT. THE PLAINTIFF DID SUSTAIN TEMPORARY CONSEQUENCES CONSISTING OF PAIN UNTIL THE TIME THAT THE DRAIN WAS REMOVED AND EPISODES OF INFECTION WHICH REQUIRED SUBSEQUENT HOSPITALIZATIONS AND WAS REQUIRED TO UNDERGO TWO SURGICAL PROCEDURES.

Mr. Sebastien filed suit against Dr. McKay. His children, Delores Sebastien Sylvester and Joseph Sebastien, joined in the suit asking for damages for loss of consortium.

Prior to trial, Dr. McKay and the plaintiffs entered the following stipulation:

"Douglas McKay, M.D. has received the opinion of the medical review panel which has reviewed the claims of Voris Sebastien, Delores Sebastien, [sic] Sylvester and Joseph Robley Sebastien, claim number 90-1018, accepts the opinion of the medical review panel and agrees to compensate the plaintiffs for all damages awarded in a final judgment in this proceeding.
This Stipulation reserves to both the plaintiffs and the defendant the right to seek judicial review of any judgment entered at the district court level with regard to quantum only."

At the beginning of trial, the trial judge ruled that the defense would not be allowed to introduce evidence concerning the responsibility of the manufacturer of the surgical drain for Voris Sebastien's injuries. The defense made an "offer of proof" to the effect that, if allowed, Drs. Nason, McKay and Aswell would testify that surgical drains are routinely used in these procedures, the removal of the surgical drain contemplates pulling them from the patient's body, that none of those three physicians has experienced a surgical drain breaking upon removal from the patient's body, nor did they expect that it would, and that, in their opinion, in the absence of a defect in the drain or of an event during the procedure, such as nicking it or suturing it, the drain should be able to be removed without breaking.

The matter was tried before a jury. After hearing the evidence and arguments of counsel, the jury returned a verdict in favor of Voris Sebastien and against Dr. Douglas McKay, and awarded damages in the amount of $20,000.00. However, the jury made no award to Delores Sebastien Sylvester or Joseph Sebastien. Judgment was rendered in conformity to the jury verdict. Motions for additur and/or new trial were denied. All parties appealed the jury's verdict. After the appeal, Voris Sebastien died of causes unrelated to this action. His children were substituted for him in this action.

DEFECT EVIDENCE

Dr. McKay asserts on appeal that he should have been allowed to introduce evidence with regard to a defect in the drainage *714 tube because the allegations that a defect in the tube caused it to break off in Mr. Sebastien's back constituted an affirmative defense to the malpractice claim.

"An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff's demand on its merits."

Webster v. Rushing, 316 So.2d 111, 114 (La. 1975).

We cannot say that allegations of a defect in the drain raise new matter which would defeat the plaintiffs' claim. Plaintiffs claim, and defendant has stipulated, that he failed to comply with appropriate standard of care in that he failed to remove the drain from the plaintiff's back. Regardless of whether the drain was defective, Dr. McKay failed to remove it and by this failure, breached the standard of care. The existence of a defect would not relieve the doctor of the need to remove the drain in order to meet the standard of care.

Accordingly, the evidence of a possible defect in the surgical drain is not relevant to this matter as defined by LSA-C.E. art. 401 and was therefore properly excluded.

LOSS OF CONSORTIUM

The plaintiffs argue that the jury erred in failing to award damages for loss of consortium to Delores Sebastien Sylvester and Joseph Sebastien.

With the exception of its sexual component, a child may be awarded for loss of consortium to the same extent as a spouse provided the requisite showing is made. Higley v. Kramer, 581 So.2d 273, 282 (La. App. 1st Cir.), writ denied, 583 So.2d 483 (La.1991). These items may include loss of love and affection, society and companionship, material services, support, aid and assistance, comfort, and felicity. Id., (and cites therein); Horton v. McCrary, 620 So.2d 918, 934 (La.App. 3d Cir.1993), reversed in part on other grounds, 635 So.2d 199 (La. 1994).

Claims for loss of consortium are usually made by minor children; however, unlike other provisions of the Civil Code,[1] LSA-C.C. arts. 2315, 2315.1 and 2315.2 offer relief without regard to the majority or minority of the parties so aggrieved. Moreover, precedent exists for the award of loss of consortium to adult children.

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Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 711, 1994 WL 659422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sebastien-v-mckay-lactapp-1994.