Day v. Morrison

• Decision Date: 15 June 1995
• Docket Number: No. 91-CA-00978-SCT,91-CA-00978-SCT
• Citation: 657 So.2d 808
• Parties: Charles M. DAY, Jr. and Elizabeth Ann Day v. Doyle A. MORRISON, M.D.
• Court: Mississippi Supreme Court

Page 808

657 So.2d 808

Charles M. DAY, Jr. and Elizabeth Ann Day v. Doyle A. MORRISON, M.D.

No. 91-CA-00978-SCT.

Supreme Court of Mississippi.

June 15, 1995.

William L. Waller, Jr., Waller & Waller, Jackson, Cotton Ruthven, University, for appellant.

Chris J. Walker, Al Nuzzo, Markow Walker Reeves & Anderson, Jackson, for appellee.

EN BANC.

ON PETITION FOR REHEARING

McRAE, Justice, for the Court:

The original opinions are being withdrawn and these opinions are substituted therefor.

Charles M. Day, Jr., and his wife, Elizabeth Ann Day, appeal the decision of the Circuit Court of the First Judicial District of Hinds County, finding that Dr. Doyle A. Morrison exercised minimal surgical competence in performing the surgical insertion of a penile prosthesis to correct a sexual dysfunction. Finding that the jury was improperly instructed, we reverse and remand to the lower court for a new trial.

The Days appealed to this Court citing the following assignments of error:

I. JURY INSTRUCTIONS D-11 AND D-18 ARE NOT THE LAW IN MISSISSIPPI, SPECIFICALLY THE PHRASES "A COMPETENT PHYSICIAN IS NOT LIABLE PER SE FOR A MERE ERROR OF JUDGMENT" IN D-11, AND "LIABILITY MAY NEVER BE IMPOSED UPON A PHYSICIAN FOR THE MERE EXERCISE OF A BONA FIDE MEDICAL JUDGMENT" AS STATED IN D-18.

II. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

III. THE COURT SHOULD HAVE ALLOWED EACH JUROR TO HAVE A COPY OF EXHIBIT 1 TO FOLLOW TESTIMONY OF WITNESSES DURING THE TRIAL.

We address only the issue of whether jury instructions D-11 and D-18 were properly granted by the court. We find all other issues to be without merit.

FACTS

Charles M. Day, Jr. and his wife, Elizabeth Ann Day, filed a Complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi on March 22, 1989 against Dr. Doyle A. Morrison for damages arising from complications of a penile implant surgery performed November 24, 1986.

At the time of trial, the Days had been married for thirty-four years. Day had been married for eight years previously, and through both marriages he fathered four children. Day has a history of health related problems. At age thirteen, Day had the mumps which caused his left testicle to atrophy. In 1972, he had a hernia operation which caused his right testicle to atrophy. In 1986, Day fell off a roof, breaking his left leg in three places above the knee, fracturing his right leg below the knee, and breaking his left arm. Prior to this accident, he fell out of a tree, breaking his right leg below the knee, his back, and his right arm. While Day testified that none of the falls contributed to any of his problems, he testified that he had "pins and things" in the broken areas, a plate in his knee, a pin in his hip, and three lobes in his back "clamped together."

In 1972, Day was treated by a Dr. Weiner for sexually related complications of hernia surgery, primarily impotence. Dr. Weiner gave Day testosterone by injection and oral medication. Day testified that he was able to perform sexually for several years after using the medication. He stated financial and family problems in 1978 caused impotency, but the problem cleared and he was able to function normally. However, he continued to see Dr. Weiner until 1984 with his medication adjusted.

Day first visited Dr. Morrison on April 16, 1986 because of a curvature of his penis which complicated sexual relations. After several office visits with Day, Morrison met with Day and his wife on October 31, 1986 to discuss methods to treat impotence, including the availability of penile prostheses. Morrison discussed the possibility of having to revise the inflatable prostheses. Morrison testified that he did not guarantee success.

                The surgery was performed on November 24, 1986 to insert an inflatable penile prosthesis. 1  After surgery, Day visited Morrison to resolve any problems that may have occurred after surgery.  Day complained about the pain he experienced
                

Day testified that Morrison was not able to inflate the prosthesis during the office visits and he alleged that the prostheses were "crossed over". ² (See Diagram).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From December 3, 1986 until December 26, 1986, the notes illustrate Morrison's belief that the prosthesis was in place, but neither Morrison nor Day were able to inflate the device because it caused pain. On December 26, 1986, Morrison wrote that "again the prosthesis is inflated and deflated without difficulty. I cannot feel the device completely in the left corpora, but it feels as though to me that it is in place. His erection is satisfactory to me, and he does have some mild curvature to the left, but it should certainly enable him to have intercourse."

On January 9, 1987, the office notes state "everything seems to be going well except that the left corpora cavernosa feels devoid of the penile prosthesis." At this point, Morrison ordered x-rays to determine whether the prosthesis "had fallen back." On January 12, 1987, Morrison wrote that "there is a deviation of the left cylinder medially ... it does not appear that the left cylinder is in the correct corporal body, but I am not 100 percent sure." Morrison referred Day to Dr. Richard Pearson for a second evaluation.

Dr. Pearson saw Day on February 4, 1987. Upon examining the prosthesis, Pearson could not tell whether the cylinders were crossed over, although his notes indicated that he believed "that the tips of the cylinders were more to the right side than the left side." Pearson told Day that another surgery was necessary to reposition the cylinders, but the situation was not an emergency. Pearson stated that Morrison followed "the procedure exactly the way it should have been done", and that he "did not find anything in the record that was inconsistent with good medical care." Pearson believed that the crossover occurred after surgery because Day's brother, who was also a doctor, recommended Day visit Dr. Larry Weems in March, 1987. Weems performed surgery May 12-13, 1987, six and one-half months after Morrison's operation, to take out and reinsert the prosthesis that Morrison had put in place earlier. By July 1987, after the operation, the right cylinder would not inflate, and Day lost desire for intercourse because of pain. Dr. Weems then referred Day to Dr. William Furlow. Furlow saw Day in September, 1988.

of "some weakness in the portion of the penis that separates the two halves of the penis."

Testifying for Day, Furlow stated that a cylinder crossover cannot occur "without a defect in the cylinders." A defect was defined as a hole that is made "in the course of dilating the cylinders, the cavernous bodies and passing the dilator through the septum to the other side, or using the insertion tool and passing the insertion tool through the septum to the other side." Furlow testified that a doctor "should be able to identify cylinder crossover intra-operatively. You have to be able to do that to prevent this complication."

Furlow examined Day to determine the possibility of correcting the problems Weems encountered. Furlow testified that the right cylinder would not inflate. He performed a third surgery to correct the crossover problem. Because there was great risk of infection, Furlow performed an operation to divert Day's urination down under the scrotum until the urethra wall could heal. However, Day developed a "full-blown infection" and the device had to be removed. Thus, this lawsuit.

DISCUSSION OF LAW

The Days opposed two jury instructions, D-11 and D-18, which stated:

D-11

The Court instructs the jury that when a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of services he provides. A physician does not, however, guarantee recovery or favorable results. Therefore, a competent physician is not liable per se for a mere error of judgment or the occurrence of an undesirable results, if Dr. Morrison [sic] treatment is accordance [sic] to minimum [sic] standards of a urologist [sic]. In other words, you are instructed that the fact that Mr. Day could not obtain an erection and have sexual relations with Mrs. Day following his penile implant surgery does not raise any presumption whatsoever that Dr. Morrison was guilty of medical negligence. (emphasis added)

D-18

The Court instructs the jury that medicine is not an exact science and liability may never be imposed upon a physician for the mere exercise of a bona fide medical judgment which turns out, with the benefit of hindsight, to have been mistaken and to the contrary to what a qualified medical expert witness in the exercise of his good medical judgment would have done; a physician does not guarantee recovery and a competent physician is not liable per se for a mere error of judgment or the occurrence of an undesirable result. You are further instructed that no physician is either a guarantor nor does he insure the success of any medical care or treatment rendered to a patient. Instead, a physician has a duty to exercise such reasonable, diligent, skillful, competent and prudent care as is practiced by minimally competent physicians in the same specialty or general field of practice. Thus, even if you should find from a preponderance of the evidence that the Defendant, Dr. Morrison, was somehow mistaken in his treatment of Mr. Day or that the penile implant surgery may have been performed contrary to what Dr. Furlow would have done, you must return a verdict in favor of Dr. Morrison unless you are convinced from a preponderance of the credible evidence that in caring for and treating Mr. Day, Dr. Morrison failed to exercise that degree of reasonable diligence, skill, competence and prudence which is practiced by a minimally competent urologist under same or similar circumstances. (emphasis added)

Instructions D-11 and...