Cordova v. Hartford Acc. & Indem. Co.

• Decision Date: 23 June 1980
• Docket Number: No. 66585,66585
• Citation: 387 So.2d 574
• Parties: Raymond CORDOVA v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Dr. A & Dr. B.
• Court: Louisiana Supreme Court

Page 574

387 So.2d 574

Raymond CORDOVA v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Dr. A & Dr. B.

No. 66585.

Supreme Court of Louisiana.

June 23, 1980.

Rehearing Denied Sept. 12, 1980.

Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-applicant.

Landry, Watson & Bonin, Alfred Smith Landry, New Iberia, Mouton & Jeansonne Welton P. Mouton, Jr., Lafayette, for defendant-respondents.

CALOGERO, Justice.

Plaintiff's medical malpractice claim against Dr. John Tolson, III, Dr. Al Beacham and their insurers was dismissed by the trial court on a exception of prescription. The Court of Appeal affirmed the trial court judgment.¹ Plaintiff complains of the ruling. We granted his application for writs.

The facts as disclosed by the pleadings and by evidence taken at the hearing on the exceptions of prescription are as follows:

On April 9, 1975, Raymond Cordova consulted Dr. John Tolson, III, about performing a voluntary bilateral vasectomy and surgically correcting a right hydrocele.² Dr. Tolson discovered that Cordova had a left inguinal hernia and after a general surgeon was consulted, Cordova agreed to have the hernia repair performed at the same time.

Plaintiff was admitted to Lafayette General Hospital for the three surgical procedures on April 27, 1975. Dr. Tolson performed the right hydrocelectomy and the vasectomy. Dr. Edgar Breaux performed the left inguinal hernioplasty. Plaintiff makes no allegation of malpractice concerning the hernioplasty performed by Dr. Breaux. On May 1, 1975 plaintiff was discharged from the hospital.

After leaving the hospital plaintiff telephoned Dr. Tolson's office several times complaining of pain. On May 7, 1975, Dr. Tolson examined Cordova at his office as a result of Cordova's complaint of pain and swelling of the right testicle. He found no indication of tenderness, fluid or pus in the scrotum. He considered the swelling an expected result of the operation. This May 7th visit was the last time Dr. Tolson treated Cordova.

On May 13, 1975, plaintiff called Dr. Tolson's office and spoke with Dr. Beacham, Dr. Tolson's partner. Plaintiff told Dr. Beacham that he had fever, severe pain and swelling in the right testicle. Dr. Beacham saw plaintiff immediately, made a diagnosis of a right testical abscess with pus in the scrotal cavity, and then admitted him to the hospital on the same day.

Plaintiff was treated by Dr. Beacham with warm compresses and antibiotics. When there was no response to this treatment, Dr. Beacham recommended surgery and informed plaintiff that his right testicle might have to be removed. On May 15, 1975, Dr. Beacham performed surgery during the course of which he removed the right testicle. Plaintiff was discharged from the hospital on May 21, 1975.

Following the surgery plaintiff saw Dr. Beacham at his office seven times between May 24, 1975 and June 18, 1975.³ Plaintiff resumed sexual relations with his wife at the beginning of June, 1975. For a period of time thereafter plaintiff had a normal sex life, but then he experienced a gradual decline in his sex drive. He began suffering from depression and experienced suicidal tendencies.

On April 7, 1976, plaintiff returned to Dr. Beacham complaining of possible high blood pressure, dizziness, and decreased sex drive. At this time plaintiff's remaining testicle had shrunk to the size of an olive, approximately one-half its normal size. Dr. Beacham found that plaintiff had minimal prostratitis for which he prescribed sulfa. No medication was given plaintiff for his complaint of loss of libido, i. e., loss of sexual desire.

Dr. Beacham saw plaintiff again on April 21, 1976, at which time laboratory studies were made. On June 22, 1976, plaintiff returned to Dr. Beacham, complaining of frank impotence. By this time the left testicle had almost completely atrophied. Dr. Beacham administered a synthetic male hormone shot and prescribed synthetic male hormone pills. Plaintiff claims that it was at this time that he learned that for all practical purposes he had lost both testicles. On August 11, 1976, Dr. Beacham recommended that plaintiff see a reproductive biologist in Houston.

On August 23, 1976, Cordova was examined by Dr. Emil Steinberger, a Houston reproductive biologist. Dr. Steinberger found that plaintiff's remaining testicle measured 1.2 by 2 centimeters as opposed to a normal range of 2.75 by 4.75 centimeters. He concluded that the remaining testicle was heavily scarred and that the testicles must have been suffering from a primary disease making them unable to produce male hormones. Steinberger started treating plaintiff with male hormone injections with apparent success, but plaintiff's left testicle remains atrophied and unable to produce male hormones.

Suit was filed in Acadia Parish on March 18, 1977, and service was made on March 21, 1977. Defendant's exceptions of improper venue were sustained and the suit was transferred to Lafayette Parish. Under R.S. 9:5801 prescription is interrupted by filing of a civil action if that action is filed in a court of competent jurisdiction and in the proper venue. When the suit is filed in a court of improper venue the running of prescription is not interrupted until defendants are served with process. Mayeux v. Martin, 247 So.2d 198 (La.App. 3rd Cir. 1971). Thus prescription in this case was first interrupted on March 21, 1977.

In summary the pertinent dates for our consideration are as follows:

April 9, 1975 Consultation with Dr. Tolson for hydrocele, hernia repair, and vasectomy.

April 27, 1975 Hospitalized for surgery by Dr. Tolson.

May 1, 1975 Plaintiff discharged from hospital.

May 7, 1975 Cordova complains of swelling and pain in the scrotum to Dr. Tolson.

May 13, 1975 Patient complains of severe pain and swelling, admitted to the hospital by Dr. Beacham.

May 15, 1975 Plaintiff has surgery in which Dr. Beacham removes the right testicle.

May 21, 1975 Cordova discharged from hospital.

June 18, 1975 Last office visit by Cordova in 1975.

April 7, 1976 Plaintiff complains of possible high blood pressure, dizziness, and loss of libido.

April 21, 1976 Laboratory studies done.

June 22, 1976 Plaintiff complains of frank impotence, contends that he first learned that he had virtually lost both testicles.

August 11, 1976 Dr. Beacham recommends that plaintiff see a reproductive biologist in Houston.

August 23, 1976 Plaintiff sees a Houston reproductive biologist who is apparently successful in treating plaintiff for his loss of libido and impotence complaints.

March 21, 1977 Defendants are served with process.

The trial court assigned no reasons in sustaining defendants' exceptions of prescription. The Court of Appeal affirmed the trial court judgment that plaintiff's claim had prescribed under R.S. 9:5628, the medical malpractice statute.⁴

In deciding the prescription issue the Appeal Court noted that plaintiff was a sophisticated person who had had numerous operations as a child and several as an adult. But they based their decision sustaining the prescription exception primarily upon plaintiff's testimony that within a year after the surgery his left testicle has shrunk to fifty percent of its normal size. The Appeal Court concluded that by this time (March 1976, more than one year prior to service of the lawsuit on March 21, 1977) plaintiff knew or should have known sufficient facts to excite his attention and put him on inquiry that the operations by Doctors Tolson and Beacham may have been negligently performed. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (La.1970).

That conclusion does not give sufficient weight to the crux of our opinion in Young v. Clement, 367 So.2d 828, 830, where we stated:

"Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action as long as...