Guess v. Maury

Decision Date28 August 1986
Docket NumberNo. 21,21
Citation726 S.W.2d 906
PartiesBarbara J. GUESS and James A. Guess, Plaintiffs/Counter-Appellants, v. Dr. William P. MAURY, Jr., Mid-South Gynecological and Obstetrical Association, a Tennessee Professional Corporation, Defendants/Counter-Appellees. 726 S.W.2d 906
CourtTennessee Court of Appeals

Thomas, Halliburton & Weissman, Memphis, for counter-appellants Guess.

Thomason, Hendrix, Harvey, Johnson, Mitchell, Blanchard & Adams, Memphis, for counter-appellees.

Harris, Shelton, Dunlap and Cobb, Memphis, for Baptist Memorial Hosp.

W.J. Michael Cody, Atty. Gen. & Reporter, and Stephen Nunn, Asst. Atty. Gen., Nashville, for Atty. Gen.-Intervenor.

TOMLIN, Presiding Judge.

This is a medical malpractice case. Plaintiffs are husband and wife. While initially several defendants were named and others subsequently added to the complaint, the case ultimately went to trial against Dr. William P. Maury, Jr. and the Mid-South Gynecological and Obstetrical Association, of which he was a member. In this opinion, plaintiffs may be referred to singularly or collectively. The term "defendant" will refer to Dr. Maury. The gravamen of plaintiff's complaint against defendant was that subsequent to a surgical procedure in July, 1975, the defendant failed to remove a rubber drain tube inserted in the plaintiff's incision to assist healing. Defendant admitted the insertion of the tube, his failure to remove the tube, and that the tube should have been removed by him. At the conclusion of an eight-day trial the jury rendered a verdict in the amount of $950,000 for the plaintiff Barbara Guess and $83,000 for plaintiff James Guess. Defendant timely filed a motion for a new trial which was subsequently argued and taken under consideration by the trial judge, The Honorable Robert Lanier. The order on motion for new trial remitted plaintiff Barbara Guess' judgment to $235,000 and plaintiff James Guess' award to $25,000. All parties have appealed. For the reasons hereafter stated, we reverse the trial court and remand for a new trial.

Plaintiff filed her original complaint against Dr. Maury and Baptist Hospital (referred to hereafter as "Baptist") in February, 1983. She alleged that in July, 1975 she was admitted to Baptist by Dr. Maury. He performed surgery on her, removing her ovaries and ovarian tubes and also performing a bladder suspension. It was alleged that defendant Dr. Maury installed a rubber drain tube in the plaintiff which he failed to remove during post-operative care. The presence of the drain tube was not discovered until an x-ray examination was conducted, followed by surgical removal of the drain tube in January, 1983. It was further alleged that defendants had negligently permitted the tube to remain in her body. Plaintiff alleged that the presence of the tube during the seven-and-one-half-year period had caused her severe back pain, blackouts, nervousness, mental anguish, physical pain and permanent disability. Plaintiff-husband sought damages for medical expenses, loss of services and loss of consortium.

Answers containing a denial of the charges were filed by all defendants. Plaintiffs later amended their complaint to increase the ad damnum. After discovery depositions were taken of defendant Dr. Maury and plaintiffs, defendant Baptist filed a motion for summary judgment on the ground that there was no genuine issue as to any material fact. Plaintiff amended her complaint to include Dr. L.R. Graves, an associate of defendant Dr. Maury, and the obstetrical group of which they were both members. A motion for summary judgment was filed on behalf of Dr. Graves. Plaintiffs also filed a motion for summary judgment as to the issue of liability alone.

In support of Baptist's motion for summary judgment, sworn affidavits were filed to the effect that no medical employees of Baptist had any part in or responsibility for the insertion, care or removal of the rubber drain tube. In addition, the discovery deposition of the defendant Dr. Maury was relied upon. No countervailing affidavits were filed by plaintiffs. At approximately the same time, defendant Dr. Maury and his obstetrical group filed an amended answer admitting that the drain tube Dr. Maury placed in the plaintiff was not removed either during her hospitalization or in any follow-up care, and that the drain tube should have been removed during that time. Defendants again denied, however, that the drain tube caused any of the injuries or damages complained of by plaintiff.

The trial court overruled plaintiff's motion in view of defendant's admitted liability. It also overruled the summary judgment motion of Dr. Graves, finding that the responsibility for the drain tube rested with the doctors. Furthermore, the Court granted the motion for summary judgment filed by Baptist, noting that there were no specific allegations in the complaint as to it and that, as already noted, the responsibility for the drain tube rested solely with the doctors, not the nursing personnel of Baptist. By a subsequent consent order, Dr. Graves was dismissed from the suit.

Trial began on February 13, 1985. On February 25, 1985, the last day evidence was presented and the day the jury was charged, plaintiff filed a multi-faceted motion. Plaintiff sought to increase the ad damnum on compensatory damages to $1,500,000 and the ad damnum on punitive damages to $5,000,000. Moreover, plaintiff sought to bring defendant Baptist back into the lawsuit and to amend the complaint to conform to the proof so as to allege the tort of outrageous conduct, contending a conspiracy existed to conceal from the plaintiffs the discovered drain tube and the damage it caused. The trial court granted the motion to increase the ad damnum for compensatory damages but denied the remainder of the motion, stating in part that no charge would be given as to punitive damages.

On February 26, 1985, the jury returned a verdict for the plaintiffs. The following day, plaintiffs filed a motion for attorney fees pursuant to T.C.A. Sec. 29-26-120. The motion was subsequently denied by the trial court. Plaintiff has appealed from that order as well as the order on motion for a new trial.

By their appeal defendants have raised seven issues. As we view them, the paramount issue is whether or not the trial judge erred in ordering a remittitur of the jury verdict rather than granting a new trial. Some of the additional issues raised by the defendants might be considered sub-issues in an ancillary way to this paramount one. In that regard, defendants contend that because the trial judge clearly expressed dissatisfaction with the jury verdict and because the jury verdict was excessive and beyond the range of reasonableness, a new trial should have been granted.

Defendants contend that improper comments, remarks and statements by plaintiffs' counsel to the jury during the trial inflamed and influenced the jury, as revealed by the size of the verdict, thus mandating a new trial.

(A) Defendants contend the trial court erred in allowing plaintiffs to present to the jury, both in questioning witnesses and in closing argument, an alleged fraud and cover-up theory based upon speculation involving a non-party not presented in any pleadings. As to this issue, defendant contends the evidence inflamed the jury, resulting in an improper verdict.

(B) Defendants contend the trial court erred in allowing plaintiffs to present proof of the standard of care applicable to defendant Dr. Maury after he had admitted liability, and also of the possible incorrect surgical approach used in removing the tube by a doctor who was not a party.

(C) Finally, defendants contend that the verdict was tainted by the statement of plaintiffs' counsel in closing argument, referring to the lawsuit as "a multi-million dollar case," in violation of both the statutory law of the state of Tennessee and repeated rulings by the trial court.

In addition, plaintiffs raise three issues which they contend constitute error by the trial court: (1) the denial of plaintiffs' motion at the close of the trial to reinstate Baptist as a party defendant; (2) the denial of plaintiffs' motion at the conclusion of the trial to amend their complaint to allege the tort of outrageous conduct against the defendant Dr. Maury and Baptist; (3) the denial of plaintiffs' post-trial motion for attorney fees. On appeal for the first time plaintiffs challenge the constitutionality of T.C.A. Sec. 29-26-117. In oral argument plaintiffs' counsel conceded that their challenge was not serious and waived argument on this issue. We thus treat the issue as waived.

Many underlying facts are not in dispute. In June, 1975 plaintiff became a patient of defendant Dr. Maury. She was admitted to Baptist Memorial Hospital on July 14, 1975 as a surgical patient. The following day defendant Dr. Maury operated on plaintiff, performing a laparotomy with a bilateral salpingo oophrectomy (removal of the ovaries and tubes) and a Marshall Marchetti urethral suspension. In addition he cut some adhesions which he found in her pelvic region. It is noted that prior to this surgery plaintiff had been complaining of urinary incontinence. As part of the surgical procedure in connection with the urethral suspension defendant Dr. Maury inserted a small latex rubber drain tube into the surgical area to assist with healing. The end of the tube projected through the incision and was covered by bandages. During the plaintiff's post-operative care the tube was shortened by Dr. Maury's associate. It apparently was not removed in the manner and at the time that it should have been removed and ultimately retracted through the incision into plaintiff's body. This unfortunate occurrence was never discovered by defendant Dr. Maury or his associate.

The drain tube remained in the...

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