Hall v. Arthur
| Decision Date | 05 May 1998 |
| Docket Number | Nos. 97-1558,97-1628,s. 97-1558 |
| Parties | 49 Fed. R. Evid. Serv. 199 John HALL and Linda Hall, Appellees, v. James ARTHUR, M.D., and Allan C. Gocio, M.D., Appellants, and Hot Springs Neurosurgery Clinic, P.A., and St. Joseph's Regional Health Center, Inc., Defendants. John HALL and Linda Hall, Appellees, v. James ARTHUR, M.D.; Allan C. Gocio, M.D.; and Hot Springs Neurosurgery Clinic, P.A., Defendants, and St. Joseph's Regional Health Center, Inc., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert S. Shafer, Little Rock, AR (J. Phillip Malcom and Tonia P. Jones, on the brief), for appellant doctors.
Don S. McKinney, Little Rock, AR
Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and SACHS, 1 District Judge.
Dr. James Arthur is a neurosurgeon at St. Joseph's Regional Health Center in Hot Springs, Arkansas. One type of surgery that Dr. Arthur performs is called an anterior cervical diskectomy and fusion surgery ("ACF surgery"). To perform such a procedure, a surgeon removes damaged disk material from a patient's spine and usually replaces it with another object. The goal is for the patient's body to form new bone tissue around the object and the vertebrae between which it has been placed, thus fusing the vertebrae together.
The choice of the replacement object is the focus of this litigation. Early ACF procedures used a piece of the patient's own bone from another part of the patient's body, usually the hip. Later, surgeons started to use bone donated by others to so-called bone banks. The evidence at trial showed that each of these procedures has certain risks associated with it: Using the patient's own bone requires two surgeries rather than one, increasing the risk of infection; using donor bone exposes the patient to the risk that disease will be transmitted from the donor to the patient. Perhaps partly in an effort to reduce these risks, Dr. Arthur began using a third replacement object, a ceramic material called Orthoblock.
The evidence at trial revealed that after Dr. Arthur performed an ACF surgery on John Hall, Mr. Hall continued to have difficulties with his back; approximately four months later, Dr. Edward Saer of Little Rock performed a repeat ACF surgery on Mr. Hall to replace the Orthoblock with bone taken from Mr. Hall's hip. Mr. Hall and his wife, Linda Hall, now residents of New Mexico, brought this diversity action against Dr. Arthur, Dr. Allan C. Gocio (who assisted in Mr. Hall's surgery), St. Joseph's Hospital, where the surgery took place, and Calcitek, the manufacturer of Orthoblock. The Halls laid claims against the defendants for medical negligence, battery, fraud, outrage, products liability, and breach of warranty.
Although the Halls settled with Calcitek, the remaining defendants were involved in a three-week jury trial. The jury found Dr. Arthur, Dr. Gocio, and the hospital liable for negligence and awarded Mr. Hall compensatory damages in the amount of $9,900. The defendants appeal; we affirm the judgment of the trial court.
Dr. Gocio asserts that the trial court erred in submitting the negligence claim against him because there was insufficient evidence that he violated the relevant standard of care. Arkansas law, applicable here, requires that the violation of the standard of care in a medical malpractice case must be established by expert testimony when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge. See Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636, 637-38 (1991); see also Ark.Code Ann. § 16-114-206(a)(2).
There appears to be no dispute that there was evidence produced at trial sufficient to convince a reasonable fact finder that Dr. Arthur, by using Orthoblock for Mr. Hall's ACF surgery, violated the applicable standard of care. Dr. Gocio argues, however, that since he acted only as an assistant in Mr. Hall's surgery, the Halls had to produce expert testimony as to the standard of care applicable to an assistant in order to allow the jury to reach the question of his potential negligence. We disagree.
Dr. Gocio, like Dr. Arthur, is a neurosurgeon. His involvement in Mr. Hall's surgery was as a neurosurgeon, to help Dr. Arthur insert the Orthoblock in question into Mr. Hall's back. If the expert testimony tended to show that Dr. Arthur's placement of Orthoblock in Mr. Hall violated the relevant standard of care for a neurosurgeon performing an ACF surgery, a jury could reasonably conclude that Dr. Gocio, by helping Dr. Arthur to insert the Orthoblock, similarly violated the standard of care for a neurosurgeon performing an ACF surgery. Accordingly, we reject Dr. Gocio's assertion that there was insufficient evidence that he violated the applicable standard of care.
St. Joseph's Regional Health Center urges us to hold that the trial court erred in denying St. Joseph's motion for judgment as a matter of law. The Halls' case against the hospital relied primarily on the actions of Gail Sanders, a nurse at St. Joseph's. Various expert witnesses criticized Ms. Sanders for failing to seek administrative review of her decision to order Orthoblock for Dr. Arthur's use in ACF surgeries. The hospital does not dispute the finding of negligence by the jury; instead, it asserts that the Halls produced insufficient evidence from which a reasonable jury could conclude that Ms. Sanders's negligence proximately caused harm to Mr. Hall. We disagree.
The hospital's argument appears to be that the Halls cannot recover against the hospital unless they produced evidence as to what would have happened had Ms. Sanders not been negligent. We do not believe that specific evidence of what the hospital would have done under different circumstances is necessary here. Certain proof of a counterfactual situation is, of course, extraordinarily difficult to produce. Instead, we believe that the fact finder can make a logical inference, based upon its experience and the evidence that was produced at trial, that Ms. Sanders's negligence was a contributing cause to Mr. Hall's injury.
Quoting W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 41, at 270 (W. Keeton ed., 5th ed.1984), we noted in Larabee v. MM & L International Corp., 896 F.2d 1112, 1116 (8th Cir.1990), that " '[w]hen a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved the child; but the experience of the community permits the conclusion that the absence of a guard played a significant part in the drowning.' " While we cannot say with certainty that Mr. Hall would not have been injured if Ms. Sanders had not been negligent, we believe that the jury could reasonably have concluded that her negligence played a significant part in allowing Mr. Hall to be injured by the use of Orthoblock for his ACF surgery. All that one has to assume here is that the hospital would have not allowed the surgery to take place, and we do not regard this assumption as requiring a leap of faith.
All of the defendants argue that the trial court erred by refusing to grant a mistrial when the Halls' counsel provided a 1992 Orthoblock package insert to the jury. The 1989 package insert, which was apparently applicable to the Orthoblock that was used on Mr. Hall and that was in evidence at the trial, states that Orthoblock should not be used "in any position where the implants are likely to sustain significant tensile, flexural or other shear forces during function." Whether or not one might view that caveat as contraindicating the use of Orthoblock in the spine, Calcitek made clear its opposition to the use of Orthoblock in the spine in the 1992 insert, stating there that "Orthoblocks are not designed for use in spinal applications."
By a ruling in limine, the trial court excluded the 1992 package insert under Fed.R.Evid. 407 as a subsequent remedial measure. Mr. Hall's surgery took place in December, 1991, the trial court reasoned, so any warning on an Orthoblock package insert after that time would not be relevant in determining whether Dr. Arthur and Dr. Gocio acted properly in...
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