Richard v. Colomb6/29/2005
Before: GUIDRY, GAIDRY, and McCLENDON, J.J.
In these consolidated medical malpractice cases, the defendant, Dr. John O. Dampeer, appealed the award of $35,000.00 in favor of plaintiff, Ms. Bobbie Jo Richard. Finding that the patient, Ms. Richard, was not informed that an unnecessary and unrelated educational procedure or technique might be undertaken by Dr. Dampeer during the consented to operation to remove her gall bladder, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In 1993, Ms. Richard consented to and underwent a laparoscopic cholecystectomy at a hospital under the direction of the State of Louisiana, Department of Health and Hospitals, Office of Public Health. The consent form she signed advised Ms. Richard of the nature of that procedure, and of the material risks attendant to it. However, after the operation was essentially complete, Dr. Dampeer, a member of the surgical team, admittedly took a stitch on otherwise healthy fatty tissue solely for the purpose of practicing his technique. Metal staples were used in the operation, and stitching was not a necessary technique or part of the operation; nor was the stitch taken necessitated by an emergency situation. While taking the stitch, the needle was lost. Initially, the surgical team thought the needle had lodged in the patient's abdomen. A subsequent review of X-rays failed to reveal a needle.
On December 10, 1996, Ms. Richard filed a malpractice claim based on the allegation that the needle remained in her abdominal cavity. On January 14, 2000, after Ms. Richard discovered that the doctor had taken the unneeded stitch without her consent, she filed an amending and supplemental petition adding the lack of informed consent claim to her previously filed suit for malpractice. Dr. Dampeer, and other defendants, filed a peremptory exception raising the objection of prescription, which was denied by the trial court. See LSA-C.C.P. art. 927(1). After a trial by jury, the jury found that Dr. Dampeer performed "a medical procedure upon Bobbie Jo Richard without her informed consent," which caused her damages. For the failure to inform adequately, the jury awarded $35,000.00 in general damages.
On appeal, Dr. Dampeer assigned error to the trial court's denial of the exception of prescription and asserted that the plaintiff failed to meet her burden of proof on the consent claim. Specifically on the issue of proof, Dr. Dampeer argues that a stitch is not a material risk and that the stitch caused no damage.
PRESCRIPTION
Medical malpractice claims are subject to a one year prescriptive period, that is, one year from the date of the act or from the date of discovery. However, regardless of the date of discovery, all claims must be filed within three years of the alleged act. LSA-R.S. 9:5628. Although the date of discovery may not generally be extended beyond the three year limit by interruption or suspension, an exception to prescription or peremption may be made for claims brought forth by an amending petition. See Randazzo v. State, Louisiana State University Health Sciences Center, 03-1470, p. 8 (La.App. 1 Cir. 5/14/04), 879 So.2d 741, 745, writ denied, 04-1503 (La.2/18/05), 894 So.2d 337; Southside Civic Association, Inc. v. Warrington, 93-0890 (La.App. 1 Cir. 4/8/94), 635 So.2d 721, 723-24, writ denied, 94-1219 (La.7/1/94), 639 So.2d 1168; Scott v. Haley, 632 So.2d 793, 794-95 (La.App. 1 Cir.1993); International River Center v. Henry C. Beck Company, 95-1396 (La .App. 4 Cir. 4/10/96), 672 So.2d 1160, writ denied, 96-1185 (La.6/21/96), 675 So.2d 1083. "When the action ... arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the origi
Page 1 2 3 4 5 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|