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Cacioppo v. Alton Ochsner Foundation Hospital12/26/2001
AFFIRMED
The plaintiffs have appealed the trial court's grant of the defendants' Exception of Prescription. For the reasons which follow, we affirm.
FACTS:
On May 24, 1983, 18-year-old Frank Cacioppo, Jr. was injured in an automobile accident. He was evaluated at a nearby hospital and then transferred to Alton Ochsner Foundation Hospital (Ochsner) in Jefferson, Louisiana. During the course of his evaluation at Ochsner, it was discovered that his aorta was ruptured, which required surgical repair. Jacques LeBlanc, M.D. presented a consent form for the surgery to Frank Cacioppo, Sr. becasue Frank Jr. was unconscious. This form stated that "Dr. Mills and team" were authorized and directed to perform surgery to repair the ruptured aorta. The surgery was performed and following the surgery Frank Jr. was paraplegic.
On October 19, 1988, plaintiffs (which include Frank Jr., Frank, Sr., and Yvonne Cacioppo) filed a medical malpractice suit against Ochsner and the physicians who performed the surgery, Dr. Noel Mills, Dr. Jacques LeBlanc, Dr. Steve Eskind, and Dr. John Busby, alleging the paraplegia was due to the negligence of the physicians in performing the surgery. On February 16, 2000, this suit was dismissed for failure to prosecute. On June 7, 2000, plaintiffs filed a legal malpractice suit against their former attorneys, Locke Meredith and Leonard Cardenas III, for failure to take any steps in the prosecution of their claim for medical malpractice. On December 26, 2000, plaintiffs amended the petition in the legal malpractice suit to add the Ochsner defendants.
In the amended petition, plaintiffs allege that Dr. Mills did not perform the surgery on Frank Jr., and that the operation was performed by Drs. LeBlanc, Eskind, and Busby, none of whom were licensed to practice medicine in Louisiana. On January 19, 2001, the Ochsner defendants filed an Exception of Prescription, which was granted by the trial court. This appeal followed.
DISCUSSION:
On appeal, plaintiffs argue that the trial court erred in granting the Exception of Prescription when the record established that the defendants knowingly and deliberately engaged in a pattern of conduct designed to deceive the plaintiffs into believing that Frank Jr. had been treated by licensed physicians. Plaintiffs argue that this pattern of conduct deprived the plaintiffs of their ability to bring actions for misrepresentation, fraud, and battery.
In support of their position, plaintiffs point out several facts, which are not disputed by the defendants. First, although Dr. Mills is listed as the "operator" on the operative report and signed the operative report, Dr. Mills did not participate in the surgery. Dr. Mills acknowledged that the only information he had regarding the surgery came from Dr. LeBlanc. Second, Dr. LeBlanc was a physician licensed in Canada, but not in Louisiana. In the submission to the Medical Review Panel, the Ochsner defendants stated that Dr. LeBlanc was a board certified cardiovascular surgeon, but it was later discovered that Dr. LeBlanc did not become board certified until after the Cacioppo surgery.
Third, it was later discovered that neither Dr. Eskind nor Dr. Busby were licensed to practice medicine in Louisiana, nor were they experienced in this type of surgical procedure. Plaintiffs argue that they did not become aware that Dr. LeBlanc was not licensed until 1997, and their first knowledge that Drs. Eskind and Busby were not licensed was from a letter written by the attorney representing the Ochsner defendants dated November 6, 2000, in which the attorney stated that the physicians were not licensed. Plaintiffs argue that
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