Dunn v. Yager

• Decision Date: 14 April 2011
• Docket Number: Nos. 2009–CA–00599–SCT,2004–IA–01833–SCT.,s. 2009–CA–00599–SCT
• Citation: 58 So.3d 1171
• Parties: Sharon W. DUNNv.Dr. John G. YAGER, M.D.
• Court: Mississippi Supreme Court

58 So.3d 1171

Sharon W. DUNN

v.Dr. John G. YAGER, M.D.

Nos. 2009–CA–00599–SCT

2004–IA–01833–SCT.

Supreme Court of Mississippi.

April 14, 2011.

Gregg Lindsey Spyridon, Philip Gipson Smith, attorneys for appellant.Brett K. Williams, Kevin M. Melchi, Pascagoula, Richard William Franklin, attorneys for appellee.EN BANC.RANDOLPH, Justice, for the Court:

¶ 1. Sharon W. Dunn claimed severe back and leg pain caused by a work-related forklift accident. After obtaining no relief following sixteen months of treatment from other physicians, Dunn was referred to John G. Yager, M.D., a board-certified neurologist practicing in Mobile, Alabama, with the Neurology Center (“Center”). On May 10, 1995, Dr. Yager prescribed Tegretol to Dunn, which she began taking on May 19, 1995. On June 13, 1995, Dunn experienced an adverse reaction, which rapidly worsened over the next two days. Subsequently, she was diagnosed as having Stevens–Johnson Syndrome (“SJS”). As a result of the SJS, Dunn is now blind, along with other physical problems.

¶ 2. In April 1996, Dunn filed suit in the Circuit Court of Jackson County, Mississippi, against multiple defendants, including Dr. Yager. Following the dismissal of all other defendants by virtue of settlement, bankruptcy, or summary judgment, Dr. Yager is the lone remaining defendant. Dunn alleged that Dr. Yager had failed to procure her informed consent by failing to warn of alleged material risks associated with Tegretol, including SJS, and that he had breached the standard of care applicable to a neurologist prescribing Tegretol for neuropathic pain by failing to warn Dunn that flu-like symptoms may indicate an adverse reaction to the medication.

¶ 3. In 2006, this Court determined that Dr. Yager's interlocutory appeal from the denial of his “Motion to Dismiss for Lack of Personal Jurisdiction” had been “improvidently granted.” In January 2009, following a twenty-day trial, the jury found in favor of Dr. Yager. Following the circuit court's denial of Dunn's “Motion for Judgment Notwithstanding the Verdict, Relief from Judgment and New Trial,” Dunn filed her direct appeal, to which Dr. Yager filed a cross-appeal regarding the issue of personal-jurisdiction.

FACTS

¶ 4. On September 15, 1993, Dunn was involved in a forklift accident at her workplace, Ingalls Shipyard (“Ingalls”) ¹ in Pascagoula, Mississippi, resulting in back and leg pain. On September 29, 1993, Dunn visited Dr. Frank Fondren, an orthopedic surgeon in Mobile, Alabama. Over the following sixteen months, Dr. Fondren prescribed numerous medications and treatment modalities for Dunn, ultimately concluding that he had nothing further to offer her. Dr. Fondren then referred Dunn to his partner, Dr. Jim West, a spine treatment specialist, who determined that Dunn would not benefit from surgery. Thereafter, Dr. Fondren referred Dunn to Dr. Yager.

¶ 5. In March 1995, Dunn returned to Ingalls in a limited capacity, first, as a secretary, then, at the fuel depot, filling vehicles. On April 19, 1995, Dunn had her first office visit with Dr. Yager. Dr. Yager's first impression was that “[s]he may have radiculopathy on the right. I will check an EMG, NCV as apparently these have not been done. I will try to get the results of previous MRI's, etc. She may well need [a] CT myelogram depending upon the findings.” No medication was prescribed to Dunn at this time.

¶ 6. On May 10, 1995, Dunn had her second office visit with Dr. Yager. By this time, Dunn had stopped working due to pain in her back and down her right leg. After reviewing results of Dunn's EMG and NCV tests, Dr. Yager found only “minor abnormalities[,]” and proposed the following treatment plan:

I will get a CT myelogram to better define the lesions, if present, in the back and look for surgical problems. However, I am not very optimistic about that. I will start her on Robaxin 500 mg b.i.d. and Tegretol 200 mg advanced after one week to t.i.d. to see if this will help break her pain cycle.

(Emphasis added.) According to Dunn, in prescribing Tegretol, Dr. Yager asked only if she had any allergies, then instructed her on “[t]he name of the drug and how to take it, the hours in which, how much per day, how many hours in between....” Dunn maintained that Dr. Yager had failed to disclose any of Tegretol's risks or side effects.

¶ 7. Conversely, Dr. Yager testified that he had discussed potential side effects, including blurred vision and likely, although “not absolutely certain,” a rash. According to Dr. Yager:

[t]ypically when I ... prescribe a patient Tegretol, you tell them what it's for, you tell them a few side effects you may have, you tell them they could have allergic reactions, and you tell them if anything happens bad, you need to call us, anything you don't understand. Those are typical of any drug used.

(Emphasis added.) While Dr. Yager acknowledged that he did not specifically mention flu-like symptoms, a sore throat, and/or mouth ulcers as possible side effects of a severe reaction to Tegretol, he added that “[t]here is no way” to distinguish between the flu and an adverse reaction.² Dunn and Dr. Yager agreed that he also told her, “if you have any problems, call me.”

¶ 8. Tegretol was manufactured by Ciba–Geigy.³ By 1995, Tegretol had been approved by the FDA for the treatment of epileptic seizures, but not neuropathic pain. As such, Dr. Yager's prescription was off-label. Multiple expert witnesses testified that in 1995, an off-label prescription of Tegretol for neuropathic pain was common.

¶ 9. On May 10, 1995, the Physician's Desk Reference (“PDR”) product information regarding Tegretol included the following:

WARNING

APLASTIC ANEMIA AND AGRANULOCYTOSIS HAVE BEEN REPORTED IN ASSOCIATION WITH THE USE OF TEGRETOL....

HOWEVER, THE OVERALL RISK OF THESE REACTIONS IN THE UNTREATED GENERAL POPULATION IS LOW, APPROXIMATELY SIX PATIENTS PER ONE MILLION POPULATION PER YEAR FOR

AGRANULOCYTOSIS AND TWO PATIENTS PER ONE MILLION POPULATION PER YEAR FOR APLASTIC ANEMIA.

...

BECAUSE OF THE VERY LOW INCIDENCE OF AGRANULOCYTOSIS AND APLASTIC ANEMIA, THE VAST MAJORITY OF MINOR HEMATOLOGIC CHANGES OBSERVED IN MONITORING OF PATIENTS ON TEGRETOL ARE UNLIKELY TO SIGNAL THE OCCURRENCE OF EITHER ABNORMALITY. NONETHELESS, COMPLETE PRETREATMENT HEMATOLOGICAL TESTING SHOULD BE OBTAINED AS A BASELINE.[⁴]

...

WARNINGS

Patients with a history of adverse hematologic reaction to any drug may be particularly at risk.

Severe dermatologic reactions including ... [ SJS ], have been reported with Tegretol. These reactions have been extremely rare.[⁵] However, a few fatalities have been reported.

...

PRECAUTIONS

...

Information for Patients: Patients should be made aware of the early toxic signs and symptoms of a potential hematologic problem, such as fever, sore throat, ulcers in the mouth, easy bruising, petechial or purpuric hemorrhage, and should be advised to report to the physician immediately if any such signs or symptoms appear.

...

Laboratory Tests: Complete pretreatment blood counts, including platelets and possibly reticulocytes and serum ... should be obtained as a baseline. [⁶]

...

ADVERSE REACTIONS

...

The most frequently observed adverse reactions, particularly during the initial phases of therapy, are dizziness, drowsiness, unsteadiness, nausea, and vomiting. To minimize the possibility of such reactions, therapy should be initiated at the low dosage recommended.

The following additional adverse reactions have been reported:

...

Skin: ... [ SJS ] (see WARNINGS)....

(Emphasis added.)

¶ 10. At trial, Dr. Yager noted that his decision to prescribe Tegretol was influenced by the fact that Dunn “had this problem for a year and a half.... She's not really responded very well to these other treatment modalities, so ideally you would like to try a different modality to try to get her under better control.” Multiple other experts testified that the standard of care would not require repeating previously unsuccessful treatment modalities and medications. Another expert for Dunn, Dr. Carroll McLeod, tendered and accepted as an expert in the field of anesthesiology, testified that he may prescribe Tegretol “after I had tried other medications and they had failed.”

¶ 11. On May 19, 1995, a CT myelogram was performed on Dunn. Later that day, Dunn filled her prescriptions from Dr. Yager for a thirty-day supply of Tegretol and a thirty-day supply of Robaxin at Vancleave Pharmacy in Vancleave, Mississippi. Several days later, Dunn returned to work.

¶ 12. On May 26, 1995, Dunn had her third office visit with Dr. Yager. At the time, Dr. Yager was unaware that Dunn had not filled the May 10, 1995, prescription until May 19, 1995. According to Dunn, she questioned Dr. Yager about whether her blood levels should be tested. Dr. Yager responded that, based upon the low dosage prescribed, no such testing was needed, and again instructed Dunn to contact his office if she experienced any problems. Dunn further testified that she had reported feeling sluggish, to which Dr. Yager had “told me that everything would be fine; just not to step up the dosage like he had first prescribed me to do.” ⁷ Dr. Yager's office chart reflected that Dunn's legs were feeling better, but that she was experiencing a “possible post myelogram headache.” According to Dr. Yager, because Dunn previously had expressed her goal of returning to driving machinery at Ingalls and had “told me she was better on the medication,” he did not “think she would have wanted to stop it at that point in time.” Accordingly, Dr. Yager modified Dunn's treatment plan and started her on Ultram “advanced to 100 mg b.i.d. [,]” continued her “on the Robaxin 500 mg b.i.d. and Tegretol 200 mg b.i.d.[,]” placed her on a six-day Medrol Dosepak for her headache, and noted that “[s]he will call me in three weeks and let me know [how] she is doing.” Dunn acknowledged that Dr. Yager instructed her to “call him if I had any problems.”

¶ 13. On June 13,...