Arthur v. Zearley

• Decision Date: 25 March 1999
• Docket Number: No. 98-156,98-156
• Citation: 337 Ark. 125,992 S.W.2d 67
• Parties: James ARTHUR, M.D. and Allan C. Gocio, M.D., Appellants, v. Betty Jo ZEARLEY and Herman Zearley, Appellees.
• Court: Arkansas Supreme Court

Page 67

992 S.W.2d 67

337 Ark. 125

James ARTHUR, M.D. and Allan C. Gocio, M.D., Appellants, v. Betty Jo ZEARLEY and Herman Zearley, Appellees.

No. 98-156.

Supreme Court of Arkansas.

March 25, 1999.

Friday, Eldredge & Clark, by: J. Phillip Malcom, Robert S. Shafer, Little Rock, for appellants.

Hicks Law Firm, by: George R. Wise, Jr., Little Rock, for appellees.

ANNABELLE CLINTON IMBER, Justice.

This is the second appeal in this medical malpractice case. ¹ The appellants challenge the trial court's denial of their motion for a directed verdict and they contest certain evidentiary rulings by the trial court. They also contend that the trial court erroneously instructed the jury on certain elements of damages. We affirm on the first two points, but reverse and remand for a new trial on the third point, based on our holding that the trial court erred in instructing the jury that damages could be awarded for lost future earnings, loss of ability to earn in the future, and future medical expenses.

The appellants, Dr. James Arthur and Dr. Allan C. Gocio, are neurosurgeons practicing at the Hot Springs Neurosurgery Clinic. Mrs. Betty Zearley sought treatment from Dr. Arthur in May, 1991, for pain related to a neck injury she sustained in a car accident. Dr. Arthur recommended an anterior cervical diskectomy and fusion surgery ("ACF surgery") to alleviate Mrs. Zearley's pain. ACF surgery is used to treat pain resulting from disc material impinging upon the cervical spine. The surgery involves removing the disc material and replacing it with a graft which is supposed to maintain the disc space while the body forms new bone between the vertebrae, thereby fusing them together. The most common graft materials used in ACF surgery are bone taken from the iliac crest of the patient's hip ("autologous bone" or "autograft") or donor bone taken from a cadaver ("allograft"). The use of either type of graft material carries certain risks. Specifically, when donor bone is used, there is a risk of transmission of disease, and when the patient's own bone is used, there is an increased risk of infection and pain at the graft site.

Neither of these graft materials was used by Dr. Arthur when he performed the ACF surgery on Mrs. Betty Zearley. Rather, he informed Mrs. Zearley that he would use a white ceramic spacer as graft material and insert it into her spine. The ceramic spacer was a product called "Orthoblock." Orthoblock is a dense form of hydroxylapatite, a ceramic material developed to replace bone in maxillofacial (dental) surgeries, that is manufactured by Calcitek, Inc. Orthoblock was not designed by the manufacturer or approved by the Food and Drug Administration ("FDA") for use in the human spine. The package insert accompanying Orthoblock warned that it should not be "used in any position where the implants are likely to sustain significant tensile, flexural, or sheer forces during function" and that aggressive contouring of the material could cause "brittle failure resulting in cracking or breaking of the implant."

According to Dr. Gene Bolles, an expert witness for the Zearleys, the information contained in the Orthoblock package insert did not support its use in the human spine. He further testified that there was no scientific basis for performing ACF surgery with Orthoblock and that Orthoblock could actually act as an "anti-fusion" device, so as to prevent fusion. However, Dr. Arthur testified that he had a firm scientific basis for performing Mrs. Zearley's surgery with Orthoblock. First, he relied upon an article published in 1989 in a medical journal that described the use of Orthoblock in ACF surgery and favorably compared the results from that type of surgery with the results from surgery using autograft or allograft material. Second, he had performed eighty to ninety procedures with Orthoblock between 1989 and May, 1991, when Mrs. Zearley came to him for treatment.

With regard to Dr. Arthur's disclosures before the surgery, Mrs. Zearley testified that he showed her the Orthoblock material and told her that he and Dr. Gocio had good results using it in ACF surgery. However, Mrs. Zearley testified that he did not tell her that Orthoblock had not been designed by the manufacturer, or approved by the FDA, for use in the human spine. She also testified that Dr. Arthur did not tell her that there were other alternatives (hip or bone bank bone) or that the use of Orthoblock in ACF surgery was experimental. Dr. Arthur, on the other hand, testified that he told Mrs. Zearley about all of the alternatives and that Orthoblock, although originally developed for dental surgery, was comparable to bone from the hip, based upon his own fairly significant experience with the product over the past two years and based upon findings by a group of doctors that had been published in 1989.

When Dr. Arthur, assisted by Dr. Gocio, performed Mrs. Zearley's surgery on May 28, 1991, he did not consider it to be experimental surgery, and, thus, saw no reason to seek approval from the hospital's review board. This assessment by Dr. Arthur was refuted by the deposition testimony of Dr. George Allen. He testified that the surgery was experimental and should have undergone peer review by the hospital's review board. He also testified that no documented informed consent was obtained by Dr. Arthur before he performed the experimental surgery on Mrs. Zearley.

Mrs. Zearley testified that she continued to experience pain after the surgery. She returned to Dr. Arthur in June and August of 1991 for post-operative check-ups, and related her complaints to Dr. Arthur. Finally, in March of 1993, Mrs. Zearley learned from a newspaper article that Dr. Arthur had been sued for using Orthoblock in spinal surgery. After further investigation, she and her husband, Mr. Herman Zearley, filed this action on June 24, 1993, against the appellants, the Hot Springs Neurosurgery Clinic, St. Joseph's Regional Health Center, Inc. (St. Joseph's Hospital), and Calcitek. Zearley I, supra. The Zearleys alleged medical negligence, battery, fraud, outrage, strict liability and breach of warranty and sought compensatory and punitive damages. ²

Shortly after filing suit, Mrs. Zearley contacted Dr. Edward Saer, an orthopedic surgeon in Little Rock, about further treatment of her neck. On June 16, 1993, Dr. Saer performed a revision ACF surgery on Mrs. Zearley, removing the Orthoblock spacers and then replacing them with bone taken from Mrs. Zearley's hip. Dr. Saer testified that Mrs. Zearley's condition improved significantly after the revision surgery. Mrs. Zearley agreed with Dr. Saer's assessment when she testified that she was "back to normal" after the revision surgery.

At trial, over a relevancy objection by the appellants, the Zearleys read portions of Dr. Arthur's deposition in which he testified that all of his patients knew that Orthoblock was not designed or FDA-approved for use in the human spine. Over further objection by the appellants, the Zearleys called three other Orthoblock patients to testify about their own informed consent conferences with Dr. Arthur before surgery. These witnesses testified that Dr. Arthur never informed them that the Orthoblock was not designed or FDA-approved for use in the human spine. At the conclusion of their testimony, the appellants moved for a mistrial, which motion was denied by the trial court.

At the close of the Zearleys's case-in-chief, the trial court dismissed their claims for battery, fraud, and the tort of outrage. However, the motion for a directed verdict by the appellants based on insufficient evidence of proximate cause was denied by the trial court. The trial court also overruled their objection to the damages instruction based on insufficient evidence of future damages.

The jury returned a verdict in favor of Betty Zearley and against the appellants, and awarded compensatory damages in the amount of $115,000.00. The jury also returned a verdict in favor of Herman Zearley on his claim for loss of consortium in the amount of $15,000.00. The jury rejected the Zearleys's claim for punitive damages against the appellants. The jury also rejected the Zearleys's claim against St. Joseph's Hospital. Appellants bring this appeal from the trial court's entry of final judgment on the jury's verdict.

I. Proximate Cause

For their first point, the appellants argue that the evidence was insufficient to establish that the use of Orthoblock in Mrs Zearley's first surgery was the proximate cause of her injuries, and that the trial court erred in refusing to grant their motion for a directed verdict.

When considering a motion for directed verdict made by a defendant, the plaintiff's evidence, and all reasonable inferences therefrom, are examined in the light most favorable to the plaintiff. Dodson v. Charter Behavioral Health Sys., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998); Avery v. Ward, 326 Ark. 830, 934 S.W.2d 516 (1996). A directed-verdict motion should be granted only if the evidence would be so insubstantial as to require a jury verdict for that party to be set aside; evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other, or if it does not pass beyond mere suspicion or conjecture. Dodson, supra; City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

The appellants argue that neither the medical expert testimony nor any other evidence presented in the case established that Mrs. Zearley's injuries were caused by the use of Orthoblock. In support of this argument, appellants focus on Mrs. Zearley's declaration that she would not "have allowed it [Orthoblock] to be put in my spine," if she had known it was experimental and not designed or FDA-approved for use in the spine. The appellants suggest that this declaration was insufficient to prove proximate cause...