Bearden v. Lanford
| Decision Date | 30 December 2013 |
| Docket Number | No. M2012-02073-COA-R3-CV,M2012-02073-COA-R3-CV |
| Parties | CYNTHIA BEARDEN v. GREGORY LANFORD, M. D. AND NEUROLOGICAL SURGEONS, P. C. |
| Court | Court of Appeals of Tennessee |
Appeal from the Circuit Court for Davidson County
In this medical malpractice action, the plaintiff alleged that the defendant, a neurosurgeon, negligently penetrated her spinal cord with a surgical instrument while performing a cervical fusion at two levels of her neck leading to partial paralysis and other neurological problems. She was ultimately diagnosed with a condition called Brown Sequard Syndrome. The issues were tried before a jury; however, several of the claims were dismissed on directed verdict. The remaining claims went to the jury which rendered a verdict on behalf of the defendant-neurosurgeon. The plaintiff raises numerous issues on appeal, the substance of which may be divided into three categories. First, she contends error associated with the directed verdict, the verdict form, and the jury instructions. In this regard she contends, inter alia, that the trial court erred in directing a verdict as to res ipsa loquitur because she presented the testimony of three expert witnesses of the defendant's specific acts of negligence. The plaintiff also contends the court erred by dismissing all but three of her claims upon a directed verdict. Second, the plaintiff argues she was denied a fair trial due to inappropriate argument and misconduct. Third, she argues a host of errors secondary to evidentiary rulings. Finding no reversible error, we affirm.
Joe Bednarz, Sr., Joe Bednarz, Jr., Nashville, Tennessee, and Steven R. Walker, Oakland, Tennessee, for the appellant, Cynthia Bearden.
C.J. Gideon, Jr., Heather Piper, Nashville, Tennessee, for the appellees, Gregory Lanford,M.D. and Neurological Surgeons, P.C.
OPINIONThe crux of this case arises out of allegations of medical negligence, secondary to what was anticipated to be a fairly routine two-level anterior cervical discectomy with fusion ("ACDF") performed on Cynthia Bearden ("Mrs. Bearden"), at Baptist North Tower Surgical Hospital on July 7, 2006.
The relevant history begins with an MRI, ordered by Mrs. Bearden's primary care physician, that revealed disc herniation and compression at two levels of her cervical spine, C5-C6 and C6-C7. Based upon the MRI, Mrs. Bearden was referred to Gregory Lanford, M.D. ("Dr. Lanford"), a board-certified neurosurgeon, for further evaluation.
On initial presentation to Dr. Lanford, Mrs. Bearden complained of persistent right arm pain, numbness and weakness, occasional left arm symptoms, and ongoing neck pain. Per Dr. Lanford's recommendations, conservative therapies were initially attempted, but proved unsuccessful in managing her symptoms. Dr. Lanford and Mrs. Bearden then discussed her interest in surgical intervention to attempt to relieve her symptoms during subsequent office visits in both April and June 2006; Mrs. Bearden ultimately elected to proceed with the operation.
Prior to surgery, Dr. Lanford discussed the inherent risks of the ACDF with Mrs. Bearden, including hemorrhage, infection, cerebrospinal fluid leak, and the potential for increased neurological deficit. He further explained her symptoms could persist or recur. The only disputed care, in the matter at hand, was the surgical care rendered by Dr. Lanford while in the operating suite.
In performing the procedure, Dr. Lanford inserted a spinal marker needle into the disc space and obtained an intra-operative x-ray of the spine to confirm that he was performing the ACDF at C5-C6 as desired. This x-ray indeed showed the needle was in the C5-C6 disc space. Consequently, Dr. Lanford initiated the procedure by accessing the anterior spine, making an incision and opening the disc space with an eleven-blade scalpel, and then removing disc material at C5-C6 and C6-C7 with a curette. During the procedure, Dr. Lanford encountered a cerebrospinal fluid leak, which was indicative of a hole in the dura, the protective outer lining encasing the spinal cord. Dr. Lanford closed this hole with a sealant called Tisseel, and then completed the procedure. While in recovery, Mrs. Bearden began exhibiting partial paralysis and other neurologic abnormalities. She was ultimately diagnosed with a condition called Brown Sequard Syndrome.
One year later, on July 5, 2007, Mrs. Bearden filed this malpractice action against Dr.Lanford and Baptist Hospital, with a derivative vicarious liability claim against Dr. Lanford's practice group, Neurological Surgeons, P.C. The case went to trial in 2009, however, following a mistrial due to a hung jury, Mrs. Bearden voluntarily dismissed the suit.
Suit was re-filed on July 2, 2009. In the Complaint, Mrs. Bearden asserted both general and specific factual allegations of medical negligence against Dr. Lanford in performing her cervical fusion including allegations that he improperly opened the dura during the procedure, injured the spinal cord with a surgical instrument, and injured her cervical spine and "neurological system" during the procedure.1 She also alleged, in relevant part, that Dr. Lanford breached the applicable standard of care for a neurosurgeon practicing in Nashville, Tennessee or a similar community in the care he rendered to her.
As the trial date of April 24, 2012 approached, both sides filed numerous motions in limine, which included similar motions in limine directed at the exclusion of medical literature as substantive evidence, or for any purpose other than impeachment in accordance with Tennessee Rule of Evidence 618. The trial court granted these respective motions, but allowed the parties to question whether a witness's opinion was supported by the medical literature; moreover, in impeaching a witness, the trial court allowed the parties to electronically display the literature to the witness and jury. Mrs. Bearden also filed additional motions in limine to exclude the testimony of defense expert neurologist Alfred Callahan, M.D., as speculative, unreliable, and not based on scientific reasoning as well as to exclude evidence of informed consent and evidence of risks of the procedure, both of which were denied.
When the case went to trial, the cause of Mrs. Bearden's paralysis was hotly debated. In her case-in-chief, Mrs. Bearden introduced three medical expert witnesses who opined that Dr. Lanford negligently performed the surgery by penetrating her spinal cord with one of three surgical instruments-the spinal marker needle, the eleven-blade scalpel, or the curette, and, as a direct result, she acquired Brown Sequard Syndrome.
Following the close of Mrs. Bearden's proof, Dr. Lanford made a broad reaching motion for a directed verdict which challenged all elements of Mrs. Bearden's claims including, without limitation, the issue of res ipsa loquitur. The trial court ruled that Mrs. Bearden was precluded from proceeding under the doctrine of res ipsa loquitur; as for the other issues, the court took the motion for directed verdict under advisement and the trial continued.
Following the close of all of the proof, Dr. Lanford renewed his motion for a directed verdict, as to:
[A]ll claims of liability, and all elements of damages. And, specifically, we move for a directed verdict on any claim of liability regarding postop care, especially on July 7, 2006 . . . as a result of what the proof was and wasn't and the directed verdict claims, ask the Court to direct a verdict on any claims of liability beyond the needle and knife issue. If I'm not articulating some specific issue that should be excluded; I'll do it in the inverse. The proof the Plaintiffs presented at trial, or that could have come up in the Defense proof that's now closed, only supports claims of liability on needle or knife going to the Jury. So, those two more specific respects.
A discourse on the motion followed during which the trial court noted that, in addition to the needle and eleven-blade scalpel, evidence had been presented that Dr. Lanford had mishandled the curette, thereby penetrating the spinal cord. The court further stated that while there had been references during the trial to other operative devices used during the ACDF, such as drills and retractors, there was no claim that these devices could have caused injury.
Following the discussion, the trial court partially granted the motion for directed verdict, dismissing all claims pertaining to the care and treatment rendered by Dr. Lanford post-surgery and all other claims except for those premised on Dr. Lanford's negligent use of the spinal needle, the eleven-blade scalpel, or the curette during Mrs. Bearden's procedure. The court explained its ruling stating that Mrs. Bearden's entire case was based on the theory that she suffered a devastating injury to her spinal cord as a result of "penetration by one of three sharp surgical instruments in the hands of Dr. Lanford." The ruling from the bench reads as follows:
I'm going to deny the motion for directed verdict as to any claim based upon the utilization of the surgical needle, the knife or the number-actually, the No. 11 blade, or knife, and the curette . . . I think there was enough evidence for the curette to be considered. I will grant it as to all others.
The written order that followed stated:
The Motion for Directed verdict with regard to the Plaintiff's claim/theory regarding care and treatment by Dr. Lanford for anything other than his use of the spinal needle, #11 blade, and the curette used to remove disc material at C5-C6 is GRANTED.
In addition to the above ruling, the trial court also made the finding that other evidence, which was not consistent with Mrs. Bearden's allegations or...
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