Andrews v. Carr

• Decision Date: 02 November 1999
• Docket Number: No. COA99-265.,COA99-265.
• Parties: Floyd M. ANDREWS, Plaintiff, v. David R. CARR, M.D. and Salem Surgical Associates, P.A., Defendants.
• Court: North Carolina Court of Appeals

521 S.E.2d 269

135 NC App. 463

Floyd M. ANDREWS, Plaintiff, v. David R. CARR, M.D. and Salem Surgical Associates, P.A., Defendants.

No. COA99-265.

Court of Appeals of North Carolina.

November 2, 1999.

Kirby & Holt, L.L.P., by C. Mark Holt, Raleigh, for plaintiff-appellee.

Wilson & Iseman, L.L.P., by G. Gray Wilson and Kevin B. Cartledge, Winston-Salem, for defendant-appellants.

GREENE, Judge.

David R. Carr, M.D. (Dr. Carr) and Salem Surgical Associates, P.A. (collectively, Defendants) appeal a judgement against them in the amount of $375,000.00 after a jury found that Floyd M. Andrews (Plaintiff) was injured by Defendants' negligence.

Dr. Carr performed a bilateral hernia surgery on Plaintiff on 13 May 1996 at Memorial Park Hospital in Winston-Salem, North Carolina. Dr. Carr utilized an open surgical procedure with direct visualization of the operative field. Dr. Carr's plan was to reduce and repair the hernia on the right side, utilizing Marlex mesh to provide support to the surgically repaired area, and then to do the same on the left side. The procedure began with Plaintiff under sedation but it was eventually converted to general anesthesia.

As part of the surgery, Dr. Carr planned to identify the spermatic cord on the right side and dissect around it to release and move it allowing him access to the hernial sac, which had descended into Plaintiff's scrotum. At that point in the surgery, Dr. Carr lost his point of anatomical reference. Dr. Carr confused Plaintiff's penis for his spermatic cord and dissected around the penis releasing the surrounding skin. This dissection went along the shaft of the penis where his dissection instrument exited the body causing a cut on the side of the penis.

After freeing the spermatic cord by dissection, part of Dr. Carr's surgical plan was to place a rubber tube called a penrose drain around the spermatic cord pulling it out of the way to access the hernia. Instead of pulling the spermatic cord away, Dr. Carr actually pulled Plaintiff's penis structure out of the dissected skin. Realizing what he had done, Dr. Carr then put Plaintiff's penis back into place and closed the open wound on the penis by suture. Dr. Carr continued with the hernia repairs, but because his surgical instrument had left the sterile operative field by exiting the body, Dr. Carr decided not to utilize mesh in the operation for fear he had created a risk of infection.

After awakening from surgery, Dr. Carr told Plaintiff he had cut his penis. He, however, did not tell Plaintiff about putting the drain around his penis and the dissection involved or that the cut came from the inside out. He also did not tell Plaintiff he had abandoned his plan to use mesh because of his fear he had created an avenue for infection. Plaintiff was given post-surgical instructions from Dr. Carr to refrain from sexual activity and from lifting any weight of more than twenty pounds for at least six weeks.

Plaintiff was released to go home within twenty-four hours after the surgery but saw Dr. Carr at his office for several post-operative visits on 20 May, 4 June, 12 June, and 26 June 1996.

Medical records show that on the 12 June 1996 visit, Plaintiff told Dr. Carr that the swelling in his scrotum was doing much better when he "did sit-ups." Plaintiff also testified he had engaged in sexual relations at the end of July or the beginning of August of 1996. Dr. Carr again informed Plaintiff he should not engage in heavy lifting, exercise, or sexual activity until his wounds were fully healed and such activity could slow the healing process and increase the risks of infection, swelling, and additional hernia complications.

On 24 September 1996, Craig Donatucci, M.D. (Dr. Donatucci) performed surgery on Plaintiff to release his entrapped penis and to remove scar tissue and a draining sinus tract in the area of the dissection. This surgery was necessary because of the scar tissue that had formed around the shaft of Plaintiff's penis as a result of Dr. Carr's dissection.

Plaintiff testified that the surgery performed at Duke University by Dr. Donatucci only partially relieved the entrapment of his penis. Since that time, Plaintiff has experienced the following concerning his penis: lack of sensation, erectile dysfunction, and tingling pain. Plaintiff is unable to have sexual intercourse and has difficulty controlling his urine flow due to numbness. Part of Plaintiff's supra-pubic fat pad and his superficial dorsal vein are missing as a result of the dissection. Plaintiff has two scars on his penis and has to use a vacuum device prescribed at Duke University to aid erections.

William Boyce, M.D. (Dr. Boyce), was tendered by Plaintiff as an expert witness. Dr. Boyce is retired and is not currently engaged in clinical practice or professional teaching. In pertinent part, he testified in response to a question from Plaintiff's counsel, as follows:

Q. Do you have an opinion about whether the laceration in the skin of the penis during the hernia operation, whether or not that was a cause of that infection?

....

A. Opinion is—I don't know how well it was prepared. I wasn't there and it isn't described in the literature, but it certainly was draped out of the field. That means the sterile field in which the operation was occurring. And it—it—to have a laceration out there of an unknown length of time was certain to have introduced organisms in—into the wound. (emphasis added).

Defendant made a motion to strike this statement and that motion was denied by the trial court. Dr. Boyce went on to state that the laceration to Plaintiff's penis by Dr. Carr was a cause of the infection.

Dr. Carr and his experts, Sigmund Tannenbaum, M.D. (Dr. Tannenbaum) and Matthew Martin, M.D. (Dr. Martin), all testified that Plaintiff's damages were caused by an infection at the surgical site unrelated to either the nick or the use of the penrose drain on Plaintiff's penis during surgery. Dr. Tannenbaum testified that the performance of sit-ups by Plaintiff definitely would have contributed to the infection, which caused his post-operative problems. Dr. Tannenbaum also testified that if Plaintiff engaged in sexual activity before his surgical hernia wound had completely healed, this would have increased the chances of developing an infection at the surgical site. Dr. Martin testified that Plaintiff's post-operative exercise and sexual activities could have contributed to his post-operative complications.

At the end of Defendants' evidence, Plaintiff moved for a directed verdict on the issue of negligence and contributory negligence. The motion for directed verdict on the issue of negligence was denied and the motion for directed verdict on the issue of contributory negligence was granted. The trial court then instructed the jury regarding mitigation of damages:

Evidence has been received in this case tending to show that Floyd M. Andrews failed to keep appointments with Salem Surgical Associates and failed to follow instructions regarding exercise and sexual intercourse.

I instruct you that a party injured by the negligence of another is required to use ordinary care to see that his injury is treated and cared for. He must try to get well. He must keep the harmful consequences of his injury to a minimum if he can do so by reasonable diligence. A party is not permitted to recover for damages that he could have avoided by using means which a reasonably prudent person would have used to cure his injury or alleviate his pain. However, a party is not deprived of recovery for damages that he could have avoided unless his failure to avoid those damages was unreasonable.

If you find that a physician advised the [P]laintiff to return for appointments or not exercise or not engage in sexual intercourse, you would not necessarily conclude that the [P]laintiff acted unreasonably in not following these instructions. In determining the reasonableness or unreasonableness of the [P]laintiff's

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