29,380 La.App. 2 Cir. 8/20/97, Kavanaugh v. Long

• Decision Date: 20 August 1997
• Citation: 698 So.2d 730
• Parties: 29,380 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 730

698 So.2d 730

29,380 La.App. 2 Cir. 8/20/97

Joseph C. KAVANAUGH, et ux., Plaintiffs-Appellants, v. Warren LONG, M.D., Defendant-Appellee.

No. 29380-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 20, 1997.

Nelson, Hammons & Self by John L. Hammons, Shreveport, for Plaintiffs-Appellants.

Blanchard, Walker, O'Quin & Roberts by Lawrence C. Pettiette, Jr., Joseph S. Woodley, Shreveport, for Defendant-Appellee.

Before NORRIS, BROWN and STEWART, JJ.

NORRIS, Judge.

The plaintiff, Joseph Kavanaugh, appeals a judgment based on a jury verdict that dismissed his medical malpractice and intentional tort claims against Dr. Warren Long. For the reasons expressed, we affirm.

Factual synopsis

Kavanaugh sustained an on-the-job neck injury in March 1983. ¹ This resulted in pain in his neck and pain radiating down his left arm. His treating physician, Dr. Thomas Edwards, admitted him to Bossier Medical Center and secured the defendant, Dr. Long, for consultation. Dr. Long performed a myelogram which showed a "large defect at C5-6 on the left"; he diagnosed a ruptured disk and recommended a diskectomy with a fusion of the C5 and C6 vertebrae. Kavanaugh eventually scheduled this surgery for April 19, 1983, to be performed by Dr. Long at Bossier Medical Center.

Prior to surgery, Dr. Long wrote a progress note stating that he was admitting the patient for a C-HNP (cervical herniated nucleus pulposus) at C5-6, and Kavanaugh testified that he understood he was to have an operation at that level. The admission summary sheet also shows that the procedure was to be performed at C5-6.

Dr. Long later admitted, however, that the marker needle was inadvertently placed in Kavanaugh's C6-7 interspace (as noted in a pre-operative X-ray interpreted by radiologist Dr. Bruce Brian); he removed that disk instead of C5-6, and fused the C6 and C7 vertebrae. On the date of surgery he dictated the following records: an admit history referring to a soft disk at C6-7; a physical report referring to an anterior cervical fusion and diskectomy at C6-7 (also mentioning a problem at C5); and an operative report listing the diagnosis of a disk at C6-7 and describing the procedure he utilized to remove that disk and fuse the vertebrae. Dr. Long sent a specimen identified as "herniated disk C6-C7" to pathology and wrote an operative progress note stating that he performed an ACF (anterior cervical fusion) at C6-7. Post-operative X-rays by Dr. Brian and Dr. B.R. Siebenlist confirmed that the disk removed was C6-7. Dr. Long admitted that his office received these radiology reports, as well as the operative report, within a week, but he did not advise Kavanaugh, either in the hospital or at any subsequent time, that he had operated on the wrong disk.

Dr. Long dictated his discharge summary on June 4. He testified that on that date, he finally reviewed and signed his prior reports that were included in Kavanaugh's hospital chart and altered several (the history, progress reports, and portions of the operative report) to read "C5-6," the intended surgical site, instead of "C6-7," the actual site. He also altered Dr. Brian's X-ray report of April 19, without that doctor's consent. Dr. Long testified that he thought he was correcting these records to reflect the actual site. However, he did not correct the physical report, the anesthesia record or the nurses' notes; these still accurately reported that the operation was at C6-7. The discharge summary, dictated after he had reviewed these records and altered some of them, erroneously states the operation was at C5-6.

At his first two post-operative office visits, Kavanaugh reported relief from his arm pain, but lingering paresthesia in his left thumb; on his final post-op visit in late August, he complained of neck pain. ² Because he was dissatisfied with Dr. Long, Kavanaugh skipped a September post-op visit and never returned. Dr. Long's office records include a notation that the office phoned him on September 23, 1983, but this was not really corroborated. ³ Kavanaugh's last documented communication with Dr. Long's office is a May 1984 letter requesting a worker compensation form. ⁴ Dr. Long subsequently maintained he was unaware that he had operated at the wrong level until he gave a deposition in 1991.

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. ⁵

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 C6-7, but there were still osteophytes at the C5-6 level. Kavanaugh testified that in 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.

Kavanaugh continued to work but his condition gradually deteriorated. For several years he treated regularly with Dr. Edwards, who ordered an MRI in late August 1989. Kavanaugh returned to Dr. Smith on September 8, 1989. Dr. Smith testified that he reviewed the MRI and report and discussed the findings fully with the patient. He testified that advised Kavanaugh that he definitely had 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. Dr. Smith essentially corroborated this in a letter to Kavanaugh's employer, in which he recommended an anterior cervical diskectomy and fusion. In November 1989 Dr. Edwards declared Kavanaugh totally disabled, and he has not worked since then.

Kavanaugh testified that after he left his job, the Office of Workers' Compensation wanted the test results and reports regarding his disability. He testified that he went to Dr. Edwards's office and collected his file on November 30, 1989, intending to deliver it the next day. That evening, however, he opened the file and read the August 1989 MRI radiology report, which found "solid bony fusion at C6-7, disk herniation at C5-6." He testified that only then did he realize that he had received a fusion at C6-7 in 1983, and still had a herniated disk at C5-6.

Procedural history

Kavanaugh filed his petition for a Medical Review Panel in Bossier Parish on October 22, 1990. ⁶ Dr. Long urged that the request came over three years after the alleged malpractice occurred and was therefore barred by La. R.S. 9:5628. The Bossier Parish District Court, however, overruled the exception, citing evidence that Dr. Long concealed his error from the patient as sufficient to invoke the doctrine of contra non valentem. ⁷ The MRP decided in February 1993 that Dr. Long breached the appropriate standard of care by failing to assure that he operated on the right level and by not advising Kavanaugh that the operation was wrong. The MRP could not decide, however, whether Kavanaugh was disabled or permanently impaired as a result of Dr. Long's conduct.

The instant suit against Dr. Long followed in April 1993. The petition alleged both malpractice (operating at the wrong level, failing to detect the error, failing to treat the ruptured disk at C5-6) and intentional tort (altering medical records, concealing the error from the patient, misleading the patient as to his condition). Joseph Kavanaugh claimed damages for pain and suffering, mental distress, residual and permanent injury and disability, loss of income and earning capacity, and past and future medicals. Dorothy Kavanaugh claimed damages for loss of consortium, loss of support, and interference and impairment of the marital relationship. Dr. Long requested a jury trial on all issues.

The matter was tried over five days in November 1994. In opening remarks counsel conceded, and in testimony Dr. Long admitted, that he breached the standard of care by operating at the wrong level; however, they steadfastly denied concealment. During trial, the plaintiffs filed a motion for directed verdict on the issue of liability, an exception of res judicata, and motions to enforce and make executory the Bossier Parish judgment that overruled the exception of prescription. ⁸ The District Court denied these motions except to say that the prior ruling on the exception was "recognized in accordance with the law." The District Court also ruled that the "fact sensitive issue of prescription and contra non valentem " should go to the jury.

In response to special interrogatories, the jury found:

(1) Do you find that Dr. Long knew that he operated at the wrong level and intentionally kept that information from Joseph Kavanaugh? No.

(1A) Do you find that Joseph Kavanaugh brought this action within one year from the date he knew or should have reasonably known that Dr. Long performed surgery at the wrong level? No. * * *

(6, 7) Do you find that Dr. Long committed an intentional act that caused damage to Joseph Kavanaugh? No. * * * ⁹

The District Court rendered judgment in accord with these interrogatories, dismissing the malpractice claim as prescribed, and dismissing the intentional tort claim on its...