Louis J. Arton, Sr., Et Ux. v. Dr. Victor Tedesco

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1281

LOUIS J. ARTON, SR., ET UX.

VERSUS

DR. VICTOR TEDESCO, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2008-5095
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and David Kent
Savoie, Judges.

REVERSED AND REMANDED.

Alan K. Breaud
Breaud & Meyers, APLC
600 Jefferson St., Suite 1101
Lafayette, LA 70501
(337) 266-2200
COUNSEL FOR DEFENDANTS/APPELLEES:
Louisiana Medical Mutual Ins. Co.
Dr. Victor Tedesco, IV

John Paul Charbonnet
The Glenn Armentor Law Corporation
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Louis J. Arton, Sr.
Barbara J. Arton

Brandon M. Rhodes
Gachassin Law Firm, LLC
P. O. Box 80369
Lafayette, LA 70598
(337) 235-4576
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette General Medical Center

GREMILLION, Judge.

Louis J. Arton, Sr., and his wife, Barbara K. Arton, appeal a partial final

judgment in favor of Dr. Victor Tedesco and Lafayette General Medical Center

(the hospital), which maintained Dr. Tedesco’s and the hospital’s exceptions of

prematurity and prescription. For the reasons that follow, we reverse and remand

the matter.

FACTS

Mr. Arton, a patient of Dr. Tedesco, was to undergo a “mini maze”

procedure to treat a heart condition, on February 7, 2006. Before the surgery, it

was necessary to counteract the effects of Coumadin or Warfarin, a blood thinner.

He alleges that he had advised Dr. Tedesco and personnel at the hospital that he

had previously been administered fresh frozen plasma (FFP) with near-fatal results.

Nonetheless, according to the Artons’ petition, Mr. Arton was administered FFP,

resulting in significant and permanent health problems.

On January 27, 2007, the Artons filed a request with the Commissioner of

Administration that a medical review panel be convened to review the care Mr.

Arton had received. This request was very non-specific, alleging only that his

claim was “[d]ue to medical malpractice and negligence.”

On February 2, 2007, the Artons amended their complaint to assert:

I do not know the medical terminology but the reason I am
filing this complaint for injury and malpractice against the above
individuals because I feel there is negligence for the following reasons.
On February 6, 2006, I went to Lafayette General Hospital to do my
pre-admit and to take a chest x-ray and blood work. When I was
asked about my allergic reactions I told the admit nurse that I was
allergic to penicillin, cephalexin, Keflex, and when I had surgery two
years before, the blood plasma did not work for me to reverse
warfarin I was on. I had to get my vitamin K shot.

....

The last thing I remember is my lungs filing [sic] up with fluid.
I was going into respiratory arrest. . . . I later learned that I was given
four bags of fresh frozen plasma. . . . I also learned that the average
time of administering fresh frozen plasma should be 30 to 40 minutes
per bag and only if the patient is bleeding. I was not.

Whey they were rushing the plasma in me at this time when [sic]
I had been in the holding room since 8:30 AM on that morning. I told
the hospital the previous day that the fresh frozen plasma had not
work [sic] on me when I had kidney surgery about two years before.
Dr. Tedesco and the hospital were negligent and should have sought
other alternatives. The admitting staff were told and my medical
records show the partys [sic] involved were not to use penicillin,
Keflex, cephalexin, and blood products on me.

A medical review panel was convened and, in due course, rendered an

opinion finding that neither Dr. Tedesco nor the hospital breached the appropriate

standards of care. The Artons then filed a petition for damages. The pertinent

factual allegations in that petition state:

3.
On February 7, 2006, Mr. Arton was admitted to the hospital under
the care of Dr. Tedesco. There, he was given improper treatment in
connection with the proposed surgery including the administration of
medications he had previously advised the Defendants of regarding
allergies and the overly rapid administration of fresh frozen plasma in
connection with elective surgery, among other improper procedures,
which resulted in near fatal injuries, extensive hospitalization and
treatment, and left him with residual problems.

In June 2014, the Artons filed a court-ordered pretrial statement, which Dr.

Tedesco and the hospital contend, attempted to assert a new claim for lack of

informed consent. They filed the exceptions from which the Artons appeal.

DISCUSSION AND ANALYSIS

Medical malpractice claims based upon lack of informed consent are

governed by La.R.S. 40:1299.40, et seq, the “Uniform Consent Law.”1 In a suit

1
After the alleged malpractice in this matter, the Uniform Consent Law, then La.R.S.
40:1299.40, was amended by 2012 La. Acts No. 759, and redesignated La.R.S. 40:1299.39.5.

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against a health care provider based upon lack of informed consent, the only theory

on which recovery may be had is negligence in failing to disclose the risks or

hazards that could have influenced a reasonable person in making a decision to

give or withhold consent. La.R.S. 40:1299.40(D)(2)(a). Consent can be given in

written form (section (A)) or verbally (section (C)). When consent is written, no

evidence may be admitted to modify or limit the patient’s written authorization.

La.R.S. 40:1299.40(B).

All claims for medical malpractice in Louisiana must be initiated by the

invocation of a medical review panel. La.R.S. 40:1299.47(A)(1)(a). That request

must contain, at a minimum, a number of items of information, including “[a] brief

description of the alleged malpractice as to each named health care provider.”

La.R.S. 40:1299.47(A)(1)(b)(vi).

The exception of prescription is governed by La.Code Civ.P. art. 927. The

standard of review of a grant of an exception of prescription is determined by

whether evidence was adduced at the hearing of the exception. If evidence was

adduced, the standard of review is manifest error; if no evidence was adduced, the

judgment is reviewed simply to determine whether the trial court’s decision was

legally correct. Allain v. Tripple B Holdings, LLC, 13-673 (La.App. 3 Cir.

12/11/13), 128 So.3d 1278. The party pleading the exception of prescription bears

the burden of proof unless it is apparent on the face of the pleadings that the claim

is prescribed, in which case the plaintiff must prove that it is not. Id.

There was evidence introduced by all parties. Therefore, the standard of

review is manifest error. We find that the Artons’ complaint to the Division of

The amendment effected no substantive changes to any of the provisions upon which our opinion
is based. All references herein are to the pre-amendment version of the statute..

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Administration and their petition, while not invoking talismanic language of

“informed consent,” did allege facts sufficient to place the defendants on notice

that the issue of Mr. Arton’s consent to FFP was a key, if not the central, issue in

the case. He stated twice in his letter to the Division of Administration that he

advised hospital personnel that he was not to be administered FFP or other blood

products. In their petition, the Artons alleged that “[Mr. Arton] had previously

advised the Defendants of [sic] regarding allergies and the overly rapid

administration of fresh frozen plasma in connection with elective surgery. . . .”

These pleadings place Mr. Arton’s consent to being administered FFP squarely at

issue in the case. And because the issue was raised within the one-year

prescriptive period, and alleged within the ninety-day delay period following

rendition of the medical review panel’s decision, pursuant to La.R.S.

40:1299.47(A)(2)(a), the claim is not prescribed. The trial court did manifestly err

in maintaining the exceptions of prescription.

The exception of prematurity is dilatory in nature and tests whether the case

“has matured to the point where it is ripe for judicial determination.” Moreno v.

Entergy Corp., 10-2268, p. 3 (La. 2/18/11), 64 So.3d 761, 763. The Defendants

point out that one prerequisite to every medical malpractice action is its submission

to a medical review panel. Because the issue of informed consent was never

submitted to the panel, Defendants argue, the claim based upon informed consent

is premature. There exists a profound, fundamental problem with the exceptions in

this case: they were not filed in response to any pleading, but to a memorandum

before trial. An exception of prematurity is waived if not filed with or before a

party’s answer. La.Code Civ.P. art. 926(B).

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CONCLUSION

The issue herein is not the merits of the Artons’ claim for lack of informed

consent. The issue is whether the law affords them the opportunity to ever present

its merits to a court. The language employed by the Artons in their complaint to

the Division of Administration and in their petition was clearly sufficient to place a

reasonable defendant on notice that consent to receiving FFP was a central issue in

the case. The exceptions of prematurity filed by the Defendants were untimely, as

they were barred pursuant to the terms of La.Code Civ.P. art. 926(B). The trial

court manifestly erred in maintaining the Defendants’ exception of prescription, as

all claims were timely filed. The judgment of the trial court is reversed and the

matter is remanded for further proceedings in accordance with this opinion. All

costs are assessed to Defendants/Appellants, Dr. Victor Tedesco and Lafayette

General Medical Center.

REVERSED AND REMANDED.

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