Magnolia Hospital v. Moore

• Decision Date: 18 August 1975
• Docket Number: No. 48054,48054
• Citation: Magnolia Hospital v. Moore, 320 So.2d 793 (Miss. 1975)
• Parties: The MAGNOLIA HOSPITAL v. Terry Glen MOORE.
• Court: Mississippi Supreme Court

Page 793

320 So.2d 793

The MAGNOLIA HOSPITAL v. Terry Glen MOORE.

No. 48054.

Supreme Court of Mississippi.

Aug. 18, 1975.

Rehearing Denied Sept. 9, 1975.

Sharp & Fisher, Corinth, for appellant.

Charles R. Wilbanks, Corinth, for appellee.

Before PATTERSON, SMITH and BROOM, JJ.

SMITH, Justice.

This is an appeal by Magnolia Hospital from a judgment for $75,000 entered against it by the Circuit Court of Alcorn County in a malpractice suit brought on behalf of Terry Glen Moore, a minor, against the hospital and Dr. D. W. Hamrick. The suit sought damages for personal injuries alleged to have been sustained by plaintiff in the course of a tonsillectomy performed at the hospital by Dr. Hamrick. The gravamen of the complaint in the declaration is reflected by the following statement in the declaration: 'Said employees of the Magnolia Hospital, together with Dr. D. W. Hamrick, carelessly and negligently strapped the plaintiff to the operating table by strapping his legs below the knees, and tightening the straps to such a degree of tightness, that the strap severed the personal nerve in the plaintiff's left leg.'

The trial was concluded by the submission of the case to a jury which returned a verdict exonerating Dr. Hamrick but awarding plaintiff $75,000 against Magnolia Hospital. It is from the judgment against it, entered pursuant to that verdict, that Magnolia Hospital has appealed. Plaintiff has not appealed from the verdict and judgment for Dr. Hamrick nor has plaintiff cross-appealed as to rulings of the trial court adverse to plaintiff.

Terry Glen Moore, the plaintiff, was 7 years old at the time of the operation on June 7, 1968. The trial took place 4 years later, when he was 11.

At 8:45 a.m. on the morning of the operation, the patient was given one grain of nembutal to induce drowsiness and 1/300 grain of atropine to slow the heart and suppress secretions from the nose and throat. Shortly thereafter, he was transported on a rolling stretcher from his room to the surgical suite. At that time his condition from the medication administered was described as 'groggy.' An examination was made of the patient's heart, chest, lungs and throat. He was moved into the operating room designated for minor surgery and placed on the operating table. Present were Dr. Hamrick, a specialist in eye, ear, nose and throat and member of the Academy of Opthalmology and Otolaryngology, who had performed some 5,000 tonsillectomies in his career; Dr. Hasseltine, his assistant, a doctor with 25 years experience in the field; Mrs. Louise Ferguson, operating room supervisor, a graduate, registered nurse with 25 years experience as operating room supervisor; Mary Owens, a graduate registered nurse and a graduate of the University of Alabama School of Anesthesia, with 18 years experience as an anesthetist; Vennie Betts, scrub nurse, with 8 years experience, 4 in surgery, Nelsie Caise, circulating nurse, with 26 years experience; Mrs. Thomas Trantham, recovery room graduate nurse with experience in several hospitals in that capacity; and, Charles Brumley, attendant, with 4 years of college pre-med and 1 year of graduate work, with 1 year experience at the Magnolia hospital, handling an average of 70 patients each month.

There is no material dispute in the testimony of these people as to what occurred and what was done on the occasion of the tonsillectomy performed on Terry Glen Moore by Dr. Hamrick. It is undisputed that good medical practice requires the placing of a restraint strap across the legs of a patient about to undergo that type of surgery. The testimony is that this restraining strap was placed across the legs of the plaintiff above the knees after he had been placed upon the operating table in order to prevent his thrashing about during the operation and causing an injury to himself. The restraint strap is a fabric strap 67 inches long and 5 inches wide. As the patient lies on the operating table, the strap passes over his legs and over the sides of the table and is fastened under the table. This is the proper and necessary procedure according to generally accepted good medical practice. This fact is not disputed by Dr. Tutor, the only medical witness offered by plaintiff, who testified, however, that it was in keeping with good medical practice to place the strap either above or below the knees.

After plaintiff had been placed upon the operating table this restraining strap was placed across his legs above the knees by the attendant, passing across both legs, and was fastened under the operating table. The patient's hands were then tucked under his body. When these things had been done the anesthetist proceeded to administer vinethene, a quick acting type of anesthetic that puts the patient to sleep within two or three minutes. From that point on a mixture of ether and oxygen is used. Dr. Hamrick, who had been outside 'scrubbing up,' was notified that the patient was ready and entered the room. He tested the restraining strap, it was above the knees as usual, and found it to be of the proper tightness. Forty-five minutes later, the operation having been completed without incident, the patient was removed from the operating table and taken to the recovery room.

The testimony of the highly trained and experienced personnel who were present and participated on the occasion in question, was that, at every step, from his reception to his departure, plaintiff received every care and attention required or indicated by sound and generally accepted good medical practice.

There is no material factual issue as to this unless it can be said to have been created by testimony given by the 11 year old plaintiff as to his knowledge and recollections of the events which had transpired in the operating room 4 years before when he had been 7 years old.

Even discounting proof in the record that plaintiff's intelligence and memory span were below normal, as well as his drugged condition when he entered the operating room, his testimony, offered to support the charge of negligence, is irreconcilably self-contradictory in its essential particulars. He testified at times, that he had asked Dr. Hamrick in the operating room (that being the only place the restraining strap was used) to loosen the strap 'a bit.' Several other times he said that he had not seen Dr. Hamrick in the operating room at all. In answering interrogatories, (these were apparently answered by his father who was not present in the operating room), it was stated that a 'stong, flexible material which looped around the arms and legs and was applied above the elbows on each arm and put below the knee on each leg.' Many important questions addressed to plaintiff himself, as a witness, brought no response of any kind, although they were repeated time and again, and question after question received the answer, 'I don't remember.'

The record of the testimony of plaintiff forces the inescapable conclusion that, after 4 years, actually he did not recall, if he ever knew, where or what strap or straps were placed upon him. Nor is it possible to reconcile his conflicting statements as to what happened in the operating room. But aside from the impossibility of reconciling the material conflicts in plaintiff's testimony, the request of this young boy, if there was such a request, that the restraining strap be loosened a bit does not amount to proof that it was tighter than required by good medical practice.

The expert testimony of those in a position to know, was to the contrary.

Plaintiff returned no answer whatever to question after question and a very large percentage of those questions addressed to him relating to the placing of the strap were answered, 'I don't remember.' He said, at least once, that he did not know how the strap had been placed and explained this lack of knowledge by saying that he could not see so good. On cross-examination, he stated that he could not remember whether the straps were actually placed on him or not. The testimony of this witness is irreconcilably conflicting on the crucial point. It is contrary to the overwhelming weight of the credible evidence in the case and is incapable of supporting a finding that negligence or a departure from good medical practice on the part of the hospital employees or Dr. Hamrick caused a traumatic injury to the peroneal nerve of his left leg.

The only medical evidence offered by the plaintiff was given by Dr. Tutor. Several months after the tonsillectomy, Dr. Tutor had operated on plaintiff and found that the superficial peroneal nerve of the left leg was bound down with scar tissue over the head of the fibula, that the nerve was not severed, and he freed it from the scar tissue. He said that the injury to the nerve was external, indicating 'some sort of trauma to the nerve.' Dr. Tutor stated that there was no way to determine the particular trauma that caused the injury but, whatever it was, in order to cause the injury, it would have had to be of such force as would cause discoloration (bruising) and swelling in the area where the trauma occurred and that such swelling and discoloration would have been observable.

Moreover, according to Dr. Tutor it was his opinion that it would have been possible to have sustained the trauma, feel the pain and have a superficial bruise and swelling appear and have the bruise and swelling disappear in three days or a week and then a period of two weeks or so elapse before the scar tissue began to develop or a deficiency began to develop in the neurological function (of the foot).

Dr. Tutor also testified that it was in keeping with good medical practice to place a restraining strap across the patient's legs, either above or below the knees, during surgery. He said he had never performed a tonsillectomy and did not know whether the operation was done while a patient was sitting or lying down, as he had never observed a tonsillectomy performed. He added, however, that ...