Trainor v. Young

561 So. 2d 722, 1990 WL 60922
CourtLouisiana Court of Appeal
DecidedMay 9, 1990
Docket21180-CA
StatusPublished
Cited by15 cases

This text of 561 So. 2d 722 (Trainor v. Young) 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
Trainor v. Young, 561 So. 2d 722, 1990 WL 60922 (La. Ct. App. 1990).

Opinion

561 So.2d 722 (1990)

Franklin J. & Theo Elaine Benedict TRAINOR & Lisa Elaine Trainor, Plaintiffs-Appellants,
v.
Bennett H. YOUNG, et al., Defendants-Appellees.

No. 21180-CA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 1990.
Rehearing Denied June 14, 1990.

Talbot, Sotile, Carmouche, Marchand & Marcello, Donaldsonville by Victor L. Marcello, for plaintiffs-appellants.

Cook, Yancey, King & Galloway, Shreveport by Herschel E. Richard, Jr. and Cynthia C. Anderson, for defendants-appellees Dr. Young and Hartford Acc. & Indem. Co.

Mayer, Smith & Roberts, Shreveport by Caldwell Roberts, for defendants-appellees, Willis-Knighton Hosp.

Before HALL, C.J., and MARVIN, JONES, SEXTON and HIGHTOWER, JJ.

MARVIN, Judge.

In this medical malpractice action that arose out of the implantation of a metal rod in the spine of a 10-year-old girl afflicted with scoliosis, the parents, who initially instituted the action, and their daughter, Lisa, who became a party plaintiff after reaching the age of majority, appeal a judgment sustaining defendants' exceptions of prescription.

After the rod was implanted by a Shreveport surgeon in mid-1974, Lisa developed paralysis in her lower extremities and became incontinent. The rod was removed by *723 a Houston surgeon October 3, 1975. The action was filed October 1, 1976.

Plaintiffs effectively have alleged or argued here and below that Dr. Young, the Shreveport orthopedic surgeon who implanted the rod, was negligent because he did so without first doing a myelogram [a fact known to plaintiffs in 1974] and because he implanted the rod in areas of the spine that he should have recognized were afflicted with spina bifida and diastematomyelia [a fact not known to plaintiffs before the rod was removed on October 3, 1975].[1]

The trial court noted that plaintiffs learned shortly after the surgery and paralysis occurred in 1974 that Lisa had diastematomyelia and that a neurologist "felt she had a vascular injury." The trial court mentioned the history that Lisa's parents gave the Houston doctor in mid-October 1974 and concluded that "it is unreasonable to believe that [plaintiffs] were [then] ignorant of the facts upon which their cause of action is based, that being the surgery performed by Dr. Young without first having a myelogram."

The trial court's conclusion fails to consider that Lisa continued under the care of Dr. Young until June 17, 1975, and that plaintiffs did not suspect until after the October 3, 1975, Houston surgery that Dr. Young had "hooked" the rod to vertebrae which he should have recognized during the operation were afflicted with either or both spina bifida and diastematomyelia.

Under these circumstances, we must find the trial court erred in sustaining the exceptions of prescription to the action that was filed October 1, 1976, within the year after the Houston surgery. Whitnell v. Menville, 540 So.2d 304 (La.1989).

Reversing the trial court, we render judgment overruling the exceptions of prescription.

DISCUSSION

Lisa Trainor, born in January 1964, was six months old, when her orthopedic surgeon, Dr. Young, determined that she had congenital scoliosis (curvature of the spine) and began treating her. External support braces and other procedures used or suggested by Dr. Young did not prove successful and Lisa's scoliosis progressively worsened during the next decade.

About 10 years later, Dr. Young recommended surgery to implant a Harrington rod in her back to arrest and stabilize the progression of the spinal curve. Notwithstanding her condition, Lisa, before the operation, was able to walk and play with certain limitations and had experienced only intermittent numbness and tingling in her legs. Lisa's parents consented to the operation, which was done June 20, 1974.

While in recovery, Lisa complained of severe pains in her legs and developed stomach problems from the anesthesia. Her leg pain, which Dr. Young attributed to hypersensitivity, eventually abated, as Dr. Young predicted to Lisa's parents. Within 48 hours after the operation, however, both lower extremities became paralyzed and Lisa was incontinent.

To Lisa's parents, Dr. Young initially attributed the paralysis to "spinal cord shock" (and vascular myelopathy, or failure of blood supply), which he explained sometimes occurs following spinal cord surgery. He expected Lisa's condition to improve as the swelling from the operation diminished.

Following the operation Lisa remained in the hospital for five weeks, during which time Dr. Young consulted with other physicians, including Drs. Ashby, Brown and Medigan. Various diagnostic tests, including x-rays and a myelogram, were then conducted. These tests were initially interpreted as revealing proper placement and stability of the rod and no significant abnormalities. About a month after the operation *724 Dr. Young suggested diastematomyelia (which was found by Dr. Medigan) as a possible cause of the paralysis.

Neither Dr. Young nor the Shreveport consulting physicians suggested to plaintiffs that Dr. Young's surgery was somehow amiss or wrongly done. Dr. Young had been treating Lisa for over 10 years. Plaintiffs said they then had "much faith and trust" in Dr. Young, describing him as a "nice person to talk to" and a "fine doctor."

In the weeks and months after the operation, Lisa's paralysis showed some, but minimal, improvement, only in her right leg.

One of Lisa's aunts told Lisa's mother of a Houston scoliosis specialist, Dr. Wendell Erwin. Lisa's parents discussed with Dr. Young what they had been told about the specialist and their desire for "another opinion" about a bone spur mentioned by Dr. Young. Dr. Young arranged their appointment with Dr. Erwin and sent him Lisa's medical records, x-rays and diagnostic test reports. Dr. Erwin saw and hospitalized Lisa in Houston in mid-October 1974 and thereafter. He conducted additional diagnostic tests and consulted with Houston neurologists, including Dr. Joe Robertson, who died before the hearing on the exceptions of prescription.

Dr. Erwin thereafter reported periodically to Dr. Young, sending him the results of the Houston examinations and tests, and medical reports and suggestions for Lisa's treatment in January and in March 1975. In March 1975, Dr. Erwin wrote Dr. Young that he was considering exploratory surgery and noted that Lisa's parents were hesitant about agreeing because of "added risks." Dr. Young continued to treat Lisa through June 17, 1975.

In August 1975, a pre-surgical examination and report by one of Dr. Robertson's associates noted some slight improvement in Lisa's condition and suggested surgery to "re-explore the spine, remove the bony spurs and do a fusion."

On October 3, 1975, Dr. Erwin performed the exploratory surgery in Houston. He excised several bony spurs in two areas of diastematomyelia, and "mended" or fused some vertebrae in Lisa's spine in areas above and below where Dr. Young had fused. He reinforced the fusion that Dr. Young did in 1974, noting that Dr. Young's fusion was "weak." He noted that diastematomyelia was present at the T-6, 7 and 8 vertebrae. He found a small area of diastematomyelia and spina bifida at the T-12—L-1 area. He also found the Harrington Rod installed by Dr. Young to be "serving no purpose. It was a very short three-hook construct at the apex of her curve, which did not extend over a very extensive area, and it really was not offering anything in terms of holding power."

Obviously not aware that Lisa ceased seeing Dr. Young on June 17, 1975, Dr.

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Bluebook (online)
561 So. 2d 722, 1990 WL 60922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trainor-v-young-lactapp-1990.