Sigler v. State, ex rel. Board of Supervisors of the Louisiana State University Agricultural & Mechanical College

614 So. 2d 743, 1993 La. App. LEXIS 728, 1993 WL 44831
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1993
DocketNo. 24,482-CA
StatusPublished
Cited by1 cases

This text of 614 So. 2d 743 (Sigler v. State, ex rel. Board of Supervisors of the Louisiana State University Agricultural & Mechanical College) 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
Sigler v. State, ex rel. Board of Supervisors of the Louisiana State University Agricultural & Mechanical College, 614 So. 2d 743, 1993 La. App. LEXIS 728, 1993 WL 44831 (La. Ct. App. 1993).

Opinion

MARVIN, Chief Judge.

In this medical malpractice claim the trial court, finding that plaintiff discovered or should have discovered the facts upon which her cause of action was based more than one year before she brought the claim, granted the hospital’s motion to dissolve the medical review panel invoked by plaintiff in April 1991 to review her claim of malpractice that allegedly occurred when she underwent a surgical hysterectomy in October 1989. LRS 9:5628; 40:1299.-47B(2).

Plaintiff contends that she only learned of the alleged malpractice within a year of bringing the claim.

As in liberative prescription questions where the doctrine of contra non valen-tem is urged, the issue is essentially factual: When was the malpractice reasonably knowable to plaintiff?

Finding no clear error in the trial court’s resolution of the issue, we affirm.

FACTS

Plaintiff, Carolyn Sigler, relates regaining consciousness after undergoing a vaginal hysterectomy at the LSU Medical Center in Shreveport on October 27, 1989, and experiencing an “explosive” pain in her left calf. She asked the recovery room nurse to “do something ... [because] my leg is killing me.” Thereafter Ms. Sigler went to sleep and was later moved to a regular room. Awaking there, she found that her left leg was numb and she could not move it. The pain returned within a day or so. She then found that she could move her leg but could not support herself without assistance. She used a walker for support while she was in the hospital and for several weeks after she was discharged on November 1, 1989.

Ms. Sigler had had no problems with her leg before the surgery. While in the hospital, she reported her leg pain and numbness to Dr. Bordelon, the surgeon who performed the hysterectomy. She said Dr. Bordelon told her that “it had something to do with the nerves, but that it was normal for that to be like that with that type of surgery [and] ... it all goes away ... usually in two weeks.” According to Ms. Sigler, Dr. Bordelon did not tell her that leg pain and numbness were among the “normal” risks of the surgery when he obtained her written consent to the surgery.

Ms. Sigler returned to LSUMC for scheduled follow-up appointments with the neurology clinic and the obstetrics/gynecology clinic in late November 1989, about four weeks after the surgery. Her leg was still painful and sometimes “gave way” when she walked. She no longer used the walker but usually had someone accompany her and provide support when she walked or used stairs away from her home.

Dr. Husain saw Ms. Bigler at the neurology clinic November 27, 1989. She said Dr. Husain told her that she had “some femoral nerve damage ... during the surgery ... but that it should ... get better.” Dr. Husain did not tell Ms. Sigler when to expect the improvement or ask her to return for further evaluation.

At about the same time, Ms. Sigler was seen in the ob/gyn clinic by a doctor other than Dr. Bordelon, whose name does not appear in the record. This doctor told Ms. Sigler that he was seeing her “because of [the] problem you’re having ... with [your] leg.” Ms. Sigler said he tested her leg reflexes with a small hammer and told her that “it should get better,” without giving her a time frame. Ms. Sigler had no other complications from the hysterectomy and was discharged from care by the ob/gyn doctor in late November 1989, with the restriction that she could not perform work [745]*745that required her to stand or walk for an extended period.

Before the surgery, Ms. Sigler worked as a cook and cashier at a restaurant and tackle store in her home parish of Sabine. Her employer would not allow her to return to work because of her medical restrictions. Ms. Sigler said she then contemplated filing a claim for social security disability benefits until she could return to work.

In December 1989, Ms. Sigler accompanied her daughter, Debbie Lee, to the office of C. Rodney Harrington, a Natchitoches attorney who was handling Ms. Lee’s accident claim. Ms. Sigler remained in Harrington’s waiting room. Relating to Harrington the problems Ms. Sigler had had with her leg since the surgery at LSUMC, Ms. Lee asked him about handling a social security claim. Faced with an appointment to see another client, Harrington spoke to Ms. Sigler only briefly, instructing his secretary to order Ms. Sigler’s medical records from LSUMC and to arrange for Ms. Sigler to be evaluated by another doctor to “set the wheels in motion for the social security claim.” Harrington asserts in his affidavit that he “was not ... looking into any malpractice claims” for Ms. Sigler at this time.

Harrington arranged for Ms. Sigler to see an Alexandria neurosurgeon, Dr. Drer-up, on December 20, 1989. Dr. Drerup’s letter of January 3, 1990, and his report to Harrington summarize the history Ms. Si-gler gave him and the findings he made during his December examination:

[Ms. Sigler] has subtle findings of hypo-tonia in the left quadriceps muscle, poorly defined and poorly reproduceable sensory changes of the left lower extremity, asymmetry of the quadriceps muscles (left being smaller than right) and an absent patella reflex on the left side. According to the patient’s statements, the motor dysfunction is improving. She states following a vaginal hysterectomy performed under general anesthesia, she was unable to move her left lower extremity. She states she was diagnosed with femoral nerve damage. Her physical examination today would indicate changes occurring in the quadriceps muscle. The etiology may be musculogenic vs. neurogenic. Because she gradually is improving, I have suggested she continue this conservative approach.

Dr. Drerup opined that Ms. Sigler’s problems may have been muscular rather than neurological in origin, but did not perform tests to confirm or rule out femoral nerve damage. Dr. Drerup did not diagnose the cause of Ms. Sigler’s condition or make a prognosis for her return to work.

Ms. Sigler testified that Dr. Drerup told her during her visit that “he never heard of what I was trying to tell him.... He’d never heard of anybody having ... femoral nerve damage ... from [a hysterectomy].” She said Dr. Drerup also told her that he, being a neurosurgeon, “wasn’t the type of doctor I needed to go to ... [because] surgery wouldn’t do it no good.”

We emphasize that on or about December 27, 1989, a week after Ms. Sigler saw Dr. Drerup, Harrington wrote to LSUMC:

This is to advise you that we have been retained by Ms. Carolyn Sigler to represent her in a claim for damages sustained while she was undergoing surgery at LSU Medical Center.
Please forward to me all of Ms. Sigler’s medical information concerning her stay at LSU beginning October 27, 1989 through the present. Enclosed is an authorization signed by Ms. Sigler.

Relying on the circumstances we have summarized above, LSUMC contends that prescription on Ms. Sigler’s malpractice claim began running no later than December 27, 1989, because she and her attorney, Harrington, then had constructive knowledge of “her claim for damages sustained while she was undergoing surgery at LSUMC,” as the letter states.

Ms. Sigler’s response to LSUMC’s argument was Harrington’s affidavit, stating that his secretary drafted the letter and signed his name to it without his having reviewed it, and that the reference to his representing Ms.

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614 So. 2d 743, 1993 La. App. LEXIS 728, 1993 WL 44831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sigler-v-state-ex-rel-board-of-supervisors-of-the-louisiana-state-lactapp-1993.