McCann v. Baton Rouge General Hospital

• Decision Date: 31 January 1972
• Docket Number: No. 8706,8706
• Citation: 258 So.2d 618
• Parties: Walter L. McCANN, Individually and on behalf of his son, Alvin E. McCann v. BATON ROUGE GENERAL HOSPITAL and Argonaut Insurance Co. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 618

258 So.2d 618

Walter L. McCANN, Individually and on behalf of his son Alvin E. McCann v. BATON ROUGE GENERAL HOSPITAL and Argonaut Insurance Co. et al.

No. 8706.

Court of Appeal of Louisiana, First Circuit.

Jan. 31, 1972.

Rehearing Denied March 22, 1972.

Writ Granted April 18, 1972.

Neil H. Mixon, Jr., of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for appellant.

Donald S. Zuber, of Seale, Smith & Phelps, Baton Rouge, for appellees.

Before LANDRY, BLANCHE and TUCKER, JJ.

TUCKER, Judge.

This is a suit by Walter L. McCann, individually and on behalf of his son Alvin E. McCann, originally brought against the Baton Rouge General Hospital and its insurer Argonaut Insurance Company, for injuries sustained by his son during surgery at the Baton Rouge General Hospital on October 4, 1968. By a supplemental and amended pleading the plaintiff brought in as a party defendant the operating surgeon, Dr. Alvin Stander, and his insurer, St. Paul Fire and Marine Insurance Company.

On October 4, 1968, Alvin McCann, then fourteen years of age, was injured while playing football at Broadmoor Junior High School. He was initially taken to a pediatrician, Dr. David Miller, who recommended that he be taken to an orthopedist. Following examination at the Bone and Joint Clinic he was taken to the Baton Rouge General Hospital for surgery. Alvin's parents, Mr. and Mrs. Walter McCann, met him at the hospital and helped him to secure a room. His father, Walter McCann, helped Alvin to change from his football uniform to a short hospital gown for surgery. He did not notice at that time that his son had sustained any injury but that to his elbow.

Alvin McCann then was wheeled into the surgery suite of the hospital. His parents accompanied him to the door of the anteroom, but did not see him against until he had been returned to his own hospital room. In the ante-room Alvin was given a pre-operative injection which rendered him unconscious. In the operating room Dr. Alvin Stander performed a close reduction on Alvin's elbow, addressing himself only to that area of his body. Dr. Stander saw Alvin McCann and had contact with him only during his elbow surgery and only in the operating room. Following surgery Alvin McCann was wheeled to the recovery room and thence to his own private room.

When Alvin began to recover from the effects of his general anesthetic, he complained of pain in his leg. His father pulled up his hospital gown and discovered on his left thigh a large blister, or burnlike lesion, which required approximately eight months of treatment, has left a substantial scar, and will require future skin grafts and surgery to remove or improve the appearance of the scar. Despite extensive attempts at discovery, involving the interviewing of numbers of people, and the taking of their depositions, the plaintiff still does not know the cause of Alvin's left thigh lesion . In his supplemental and amended petition plaintiff alleges certain additional injuries to Alvin's genitalia and reproductive ability, the cause of which he is not able to explain either.

Plaintiff sued the Baton Rouge General Hospital, Dr. Stander, and their respective insurers for the following sums: The Baton Rouge General and insurer for $1,627.00 past and future medical and other expenses for the injuries; the Baton Rouge General and insurer, on behalf of his son, for $15,000.00 for mental pain, suffering, and anguish; Dr. Stander and insurer, $10,127.00 for past and future medical and other expenses for injuries sustained by Alvin; Dr. Stander and his insurer, on behalf of his son, $100,000.00 for physical pain, suffering and anguish, and for injuries to genitalia, resulting in the loss of virility and anxiety caused thereby. Plaintiff requested a trial by jury.

Suit was initiated on October 2, 1969. The parties litigant agree with respect to the chronology and disposition of the filings thereafter. An exception of vagueness, filed November 12, 1969 on behalf of Dr. Stander and St. Paul, was overruled on January 26, 1970, without prejudice to defendants-appellees from re-asserting the exception after discovery was had. Plaintiff-appellant conducted extensive discovery procedure by taking depositions and otherwise investigating the circumstances prior to March 22, 1971, which date was the deadline for completing such discovery. On February 5, 1971 Dr. Stander and St. Paul Filed a motion for a summary judgment, which was overruled by the lower court by its judgment rendered on April 14, 1971.

On April 30, 1971 Dr. Stander and St. Paul again filed an exception of vagueness and also an exception of no cause or right of action. This second exception of vagueness was overruled, but the trial court maintained the exception of no cause of action, granting plaintiff-appellant five days within which to amend his petition.

On May 26, 1971 plaintiff-appellant applied to this court for supervisory writs, and this application for writs was denied by this court on June 8, 1971 for the reason that the judgment of the lower court was final insofar as the dismissal of the defendants, Dr. Alvin Stander and his insurer, St. Paul Fire and Marine Insurance Company, and the relator (plaintiff-appellant) had an adequate remedy by appeal.

Plaintiffs originally relied upon the doctrine of 'res ipsa loquitur.' In his exception of no cause of action the defendant, Dr . Stander, stated that the supplemental and amended petition had not alleged his negligence sufficiently to constitute a cause of action against him. From the judgment in the lower court maintaining Dr. Stander's exception of no cause of action plaintiff has appealed, alleging that he has stated every fact known to him, surrounding the circumstances of Alvin's thigh and genitalia injuries. He urged the doctrine of 'res ipsa loquitur,' and argues it on appeal not contending malpractice, which is not alleged, but calling upon Dr. Stander to account for the 'untoward event' of Alvin's still unexplained injuries which occurred during the time that he was unconscious and anesthetized.

The paragraphs of plaintiff's original petition which are rejected by defendant as insufficient to state a cause of action against him are given below:

8.

'Alvin McCann, while in defendants' care, also suffered injuries to his reproductive organs to the extent that his capability to reproduce is completely or greatly destroyed.

10.

'The injury...