McMullen v. Vaughan, 52001
Citation | 138 Ga.App. 718,227 S.E.2d 440 |
Decision Date | 07 May 1976 |
Docket Number | No. 52001,No. 2,52001,2 |
Parties | J. A. McMULLEN et al. v. R. H. VAUGHAN et al |
Court | United States Court of Appeals (Georgia) |
Moore & Worthington, William C. Moore, Columbus, Ross & Finch, Claude R. Ross, Atlanta, for appellants.
Kelly, Champion, Denney & Pease, S. E. Kelly, Phillip J. Johnson, Columbus, for appellees.
This is an appeal from a jury verdict and judgment in favor of Dr. Vaughan, defendant below, against the plaintiff McMullen, and the joint suit of McMullen's wife for loss of consortium, in an action alleging medical malpractice. McMullen and wife enumerate as error the giving by the trial court of a charge on comparative negligence and the failure to give two requested charges based upon the doctrine of 'informed consent' as it related to the injury-producing surgical procedure.
The facts established that Mr. McMullen was experiencing a nerve impairment. Following consultation with an orthopedic surgeon, McMullen submitted to a surgical procedure to correct the impairment performed by appellee, a thoracic surgeon. During the operation, an unrelated motor nerve apparently was damaged causing paralysis to a muscle controlling the scapula, the 'shoulder blade.' The evidence established the injury to the nerve was not painful and had minimal effect on the mobility of the shoulder itself. Expert testimony offered by appellee and not specifically rebutted by appellant established that the injury was generally recognized in the medical profession as being in the nature of an unexpected result which could occur in spite of the exercise of the requisite degree of care demanded during such surgery. The muscle paralysis did not involve the shoulder joint and did not, of itself, limit shoulder motion. There was evidence that several contiguous muscles to that paralyzed would compensate for the loss of function and control the scapula as effectively as the paralyzed muscle. Upon assumption by the contiguous muscles of that functional control, a patient would have a normal appearance and experience complete control of the shoulder.
A serious post-operative complication of the particular operation involved is a 'frozen shoulder.' This results from extended disuse of the shoulder and causes pain and disability. To offset this risk a patient is given a series of self-controlled physical therapy exercises. If for any reason the patient is unable or unwilling to countenance or voluntarily perform these exercises, the patient is medicated sufficiently to allow him voluntarily to perform the shoulder movements or if necessary the patient is referred to a physical therapist to force the continued movement of the shoulder joint. There was evidence that the particular operation, a first rib resection, normally produced significant post-operative pain, causing a patient to 'favor' the shoulder and instinctively to limit shoulder movement. McMullen apparently fearing drug dependence deliberately limited his ingestion of pain-deadening medication following the operation.
Evidently as a result of the intense pain and the continued 'favoring' of his arm, appellant incurred a 'frozen shoulder.' Though referred by Dr. Vaughan, McMullen went only once to a physical therapist. Appellant did not return for follow-up visits. Appellant presently suffers constant and severe pain and the mobility of the arm and shoulder is significantly curtailed. The disability is considered to be permanent.
Appellant brought this suit seeking damages for the paralysis in his right arm and side and shoulder area together with accompanying pain and suffering. Held:
1. The resolution of the questions presented by this appeal ultimately depend upon the nature of specific injury of which complaint is made and for which damages were sought. Though, it is uncontested that as a direct product of the surgical procedures followed by Dr. Vaughan, the thoracic nerve was damaged resulting in paralysis of the scapula muscle, we conclude this is not the underlying basis of appellant's suit. The overall tenor of appellant's evidence makes manifest his complaint is based upon the pain and limitation of motion caused by the frozen...
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