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Kavanaugh v. Edwards12/8/1999
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
The plaintiffs, Joseph and Dorothy Kavanaugh, appeal the trial court's judgment dismissing their medical malpractice claim against the defendant, Thomas Edwards, M.D., on a peremptory exception of prescription. For the following reasons, we affirm.
FACTS
On March 1, 1983, the defendant, Dr. Thomas Edwards, an orthopedist, treated the plaintiff, Joseph Kavanaugh, for a work-related neck injury. On March 4, 1983, Dr. Edwards admitted Kavanaugh to Bossier Medical Center and secured Dr. Warren Long, a neurosurgeon, for consultation. Dr. Long performed a myelogram, which revealed that the plaintiff had a herniated disk at C5-6. Dr. Long recommended that plaintiff undergo a diskectomy with a fusion of the C5 and C6 vertebrae.
The plaintiff was again admitted to Bossier Medical Center in April 1983, and Dr. Long performed cervical surgery to remove and fuse the herniated disk. However, instead of operating on C5-6, Dr. Long removed the C6-7 disk and performed a fusion of the vertebrae at that level.
During his post-operative visits with Dr. Long, the plaintiff continued to complain of pain in his hand and neck. Eventually, the plaintiff became dissatisfied with Dr. Long and discontinued his post- operative visits. The plaintiff last communicated with Dr. Long's office in May 1984, when plaintiff sent a letter requesting that Dr. Long complete a workers' compensation form.
Kavanaugh went back to his original treating physician, Dr. Edwards, in July 1984, over a year after surgery. At this time he was still having neck and shoulder pain, the same complaints as before surgery; nevertheless, he had resumed his work as a heating and air contractor at Barksdale AFB. Dr. Edwards ordered a "cervical series" and, later, a CT scan, neither of which showed any evidence of a fusion at C5-6; he advised Kavanaugh on July 20, 1984 that apparently the fusion had been "absorbed." In spite of X-rays and the CT scan inconsistent with the history of a fusion, Dr. Edwards maintained he did not contact Dr. Long or review the hospital records.
Because of continued symptoms, Dr. Edwards referred Kavanaugh to Dr. Donald Ray Smith in September 1984. Dr. Smith testified that at the time, the patient gave him a history of surgery at C6-7, and that he discussed this fact with Kavanaugh; however, Dr. Smith's contemporaneous notes do not refer to any particular level. Dr. Smith's September 18 letter to Dr. Edwards stated, based on the patient's comments and review of Dr. Edwards's July 1984 X-ray, that the surgery was probably at C-6- 7, but there were still osteophytes at the C5-6 level. At the trial against Dr. Long, Kavanaugh testified that during the September 1984 visit, Dr. Smith discussed the problems at C5-6, where Kavanaugh always thought his problems were, and that the doctor's dictation referring to C6-7 was wrong.
Although the plaintiff continued to work, his condition gradually deteriorated. For several years he regularly treated with Dr. Edwards, who ordered an MRI in late August 1989. Dr. Edwards again referred the plaintiff to Dr. Smith. The plaintiff saw Dr. Smith on September 8, 1989. At the trial against Dr. Long, Dr. Smith testified that he reviewed the plaintiff's MRI and advised the plaintiff that he had definitely undergone a fusion at C6-7, that he could not discern any evidence of a fusion at C5-6 and that there were osteophytes at C5-6 which could be remedied by fusion. The plaintiff continued to see Dr. Edwards until March 27, 1990.
PROCEDURAL HISTORY
On October 24, 1990, the plaintiffs filed a petitio
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