Gordon v. McDonald, 97-CA-00787-COA.

• Decision Date: 18 May 1999
• Docket Number: No. 97-CA-00787-COA.,97-CA-00787-COA.
• Citation: 743 So.2d 1029
• Parties: James D. GORDON, M.D., Appellant, v. Helen L. McDONALD, Appellee.
• Court: Mississippi Court of Appeals

743 So.2d 1029

James D. GORDON, M.D., Appellant, v. Helen L. McDONALD, Appellee.

No. 97-CA-00787-COA.

Court of Appeals of Mississippi.

May 18, 1999.

Stephen P. Kruger, Stuart Bragg Harmon, Ridgeland, Attorneys for Appellant.

T. Mack Brabham, McComb, Attorney for Appellee.

EN BANC.

KING, P.J., for the Court:

¶ 1. This medical malpractice case comes to the Court from the Circuit Court of Hinds County, First Judicial District. The jury found that the appellee, Helen McDonald, did not give her informed consent to the appellant, Dr. Gordon, to perform an ethmoidectomy and awarded Ms. McDonald $225,000. Feeling aggrieved by the jury's verdict, Dr. Gordon appeals and assigns the following as error:

1. The trial court erred in charging the jury with an incorrect statement of the law on the issue of informed consent.

2. The trial court erred in allowing the jury to consider Mrs. McDonald's past and future immune deficiency treatment as an element of damages.

3. The trial court erred by denying Dr. Gordon's motion for judgment notwithstanding the verdict.

4. The trial court erred by denying Dr. Gordon's motion for new trial.

We affirm.

Facts

¶ 2. On September 2, 1992, Helen McDonald consulted Dr. Gordon, an ear, nose, and throat specialist, experiencing pain and congestion in her face.¹ Based on McDonald's physical examination and medical history, Dr. Gordon ordered a CT scan to determine whether her condition warranted surgery. After viewing the CT scan, Dr. Gordon recommended surgery.

¶ 3. On September 25, 1992, Helen McDonald underwent a bilateral endoscopic maxillary anstrostomy² ("BEMA").

¶ 4. Experiencing post-operative complaints, Ms. McDonald sought the advice of Dr. Flowers, an infectious disease specialist. On March 21, 1994, Ms. McDonald picked up her medical records from Dr. Gordon in order to deliver them to Dr. Flowers. It was at this time that Ms. McDonald allegedly learned for the first time that Dr. Gordon had performed a bilateral ethmoidectomy ("BEE").³

I. THE TRIAL COURT ERRED IN CHARGING THE JURY WITH AN INCORRECT STATEMENT OF THE LAW ON THE ISSUE OF INFORMED CONSENT.

¶ 5. Dr. Gordon argues that the trial court committed reversible error in allowing the jury to be given an incorrect instruction on the law. The instruction of which Dr. Gordon complained, P-9, read as follows:

The court instructs you that Helen McDonald's first claim against the defendant is that she never agreed or consented to the surgical procedure performed on her on September 25, 1993 known as a BEE (bilateral ethmoidectomy). Concerning this particular claim, the court instructs you that the law protects the right of each individual to be touched only when and in a way authorized by that individual. Every human being of adult years and sound mind has a right to determine what shall be done with his or her own body, and a surgeon who performs an operation without his patient's consent is liable in damages. A competent individual has a right to refuse to authorize a procedure, whether the refusal is grounded on doubt that the contemplated procedure will be successful, concern about probable risk or consequences, lack of confidence in the physician recommending the procedure, religious belief, or mere whim. Concisely stated in one sentence, no physician may perform any procedure on a patient no matter how slight or well intended without the patient's informed consent.

Therefore, if you find from a preponderance of the evidence that Helen McDonald did not consent to a surgical procedure known as a BEE and that such procedure was performed on her on September 25, 1993 without her consent, then the defendant is liable to Helen McDonald. Then if you further find from a preponderance of the evidence that such wrongful conduct by the defendant proximately caused or contributed to any injury or any damages to Helen McDonald, then it is your sworn duty to return a verdict in her favor and award damages pursuant to the other instructions of this court.

¶ 6. Gordon contends that the correct statement of the law was his instruction D-12, which was not given. The record reflects that both P-9 and D-12 were initially granted by the trial court. Prior to concluding the conference on instructions, the trial court expressed some concern about giving both P-9 and D-12. The trial judge indicated a need for time to research the issue prior to a final meeting. The parties suggested that it might be a matter which they could agree upon and thereby eliminate the necessity of that research.

¶ 7. The trial court had refused Dr. Gordon's instruction D-17 and D-18, both of which dealt with pre-existing conditions. After negotiation, the parties agreed that McDonald would not object to D-17, if certain amendments were made, or if Dr. Gordon withdrew D-12. The trial court then granted instructions consistent with the agreement of the parties.

¶ 8. Gordon contends that notwithstanding his agreement to withdraw his instruction on informed consent, D-12, he did not withdraw his objection to McDonald's instruction on informed consent, P-9. We find this argument to be, at best, disingenuous.

¶ 9. The parties entered negotiation after the court expressed concern about the conflict in the two informed consent instructions. The parties indicated to the court that they would attempt to reach an agreement on the issue rather than have the judge do further research prior to rendering a decision.

¶ 10. That agreement was reached and provided, in part, that Dr. Gordon would withdraw D-12, his instruction on informed consent. This would eliminate the conflict in instructions by leaving only P-9, McDonald's informed consent instruction.

¶ 11. Although the trial judge should instruct the jury sua sponte when instructions submitted by counsel are defective, Newell v. State, 308 So.2d 71, 78 (Miss.1975), there is no obligation on the trial judge to dissuade a party from voluntarily withdrawing a instruction previously admitted.

¶ 12. Therefore, assuming arguendo that Gordon's protestation that instruction P-9 incorrectly stated the law of informed consent is valid, Gordon's withdrawal of the informed consent instruction which he claims to have correctly stated the law was tantamount to a waiver of his earlier objection.

¶ 13. Because Gordon voluntarily withdrew the instruction which he now claims was a correct statement of the law, this assignment of error is without merit. It is well settled that the failure to object to an instruction or request an appropriate instruction operates as a waiver of that issue on appeal. Billiot v. State, 454 So.2d 445, 462 (Miss.1984). Dr. Gordon's decision to withdraw his already granted instruction D-12 removed the controversy from the trial courts consideration. Furthermore, "[a] trial judge will not be found in error on a matter not presented to him for decision." Jones v. State, 606 So.2d 1051, 1058 (Miss.1992).

II. THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER THE APPELLANT'S PAST AND FUTURE IMMUNE DEFICIENCY TREATMENT AS AN ELEMENT OF DAMAGES.

¶ 14. Dr. Gordon's next assignment of error addresses the issue of Ms. McDonald's past and future medical problems as elements of damages. Dr. Gordon contends that it was not established in terms of reasonable probability that Ms. McDonald would require immune deficiency treatment nor was it established through expert testimony that Ms. McDonald's immune deficiencies were a product of the removal of her ethmoids.

¶ 15. Dr. Gordon did not object to this instruction and is procedurally barred from raising this issue on appeal for the first time. Procedural bar notwithstanding, we find no merit in this.

¶ 16. It is patently clear from the testimony given by Dr. Austin that as a result of the BEE, Ms. McDonald would forever be what he termed a "nasal cripple". This opinion was corroborated by Dr. Lockey and Dr. Sneed, Dr. Gordon's own expert. This testimony entitled McDonald to a jury instruction regarding past and future medical treatment.

III. THE TRIAL COURT ERRED IN DENYING DR. GORDON'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 17. Dr. Gordon argues that it is overwhelmingly clear that Ms. McDonald consented to the BEE and that reasonable minds could not have differed and that the trial court erred in not granting his motion for judgment notwithstanding the verdict. We disagree.

¶ 18. The Mississippi Supreme Court in Royal Oil Co., Inc. v. Wells, defined an appellate court's review of a trial court's denial of a motion for judgment notwithstanding the verdict as follows.

Where, as here, the trial judge has refused to grant a motion for JNOV, we examine all of the evidence—not just evidence which supports the non-movant's case—in the light most favorable to the party opposed to the motion. All credible evidence tending to support the non-movant's case and all favorable inferences reasonably drawn therefrom are accepted as true and redound to the benefit of the non-mover. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, the motion should be granted. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the jury verdict should be allowed to stand and the motion denied, and, if it has been so denied, we have no authority to reverse.

Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 442 (Miss.1986)

¶ 19. In the case at bar, there is substantial evidence in support of the jury's verdict. On the issue of informed consent, McDonald testified that she was not aware that on September 25, 1992, Dr. Gordon performed the BEE. Instead, McDonald testified that it was not until March 21, 1994, when she retrieved her medical records from Dr. Gordon's office, that she first became aware that...