Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc.

• Decision Date: 23 July 1985
• Docket Number: Nos. 56179,56180,s. 56179
• Citation: 1985 OK 66,713 P.2d 572
• Court: Oklahoma Supreme Court
• Parties: Bill R. MIDDLEBROOK and Melynda K. Middlebrook, Appellees, v. IMLER, TENNY & KUGLER, M.D.'S, INC., a corporation, Bone and Joint Orthopedics, Inc., a corporation, Robert L. Imler, M.D., and J.L. Richardson, M.D., Appellants.

Page 572

713 P.2d 572

1985 OK 66

Bill R. MIDDLEBROOK and Melynda K. Middlebrook, Appellees, v. IMLER, TENNY & KUGLER, M.D.'S, INC., a corporation, Bone and Joint Orthopedics, Inc., a corporation, Robert L.

Imler, M.D., and J.L. Richardson, M.D.,

Appellants.

Nos. 56179, 56180.

Supreme Court of Oklahoma.

July 23, 1985.

As Corrected Aug. 14, 1985.

Rehearing Denied Jan. 13, 1986.

Pryor, Carney & Johnson, Thomas L. Roberts, M. Randolph Barnhart, Englewood, Hopkins, King & Rucker, Don Hopkins, Mark Finnerty, Joe Francis, Best, Sharp, Thomas, Glass & Atkinson, Joseph M. Best, Joseph A. Sharp, Tulsa, for appellants.

Michaud, Cordry & Michaud by Gerald L. Michaud and Dwight A. Corrin, Wichita, Kan., Morrel, Herrold & West, Inc. by R. Dow Bonnell and Donald E. Herrold, Tulsa, W.C. Sellers, Inc. by W.C. Sellers, Sapulpa, for appellees.

HARGRAVE, Justice.

The plaintiffs, Bill R. Middlebrook and Melynda K. Middlebrook, brought two actions against Imler, Tenny & Kugler, M.D.'s, Inc., a corporation, Bone & Joint Orthopedics, Inc., a corporation, Robert L. Imler, M.D., and J.L. Richardson, M.D., for damages arising from surgical treatment of a spinal injury suffered by Mr. Middlebrook The plaintiff, Bill Middlebrook, suffered a fracture and dislocation of one of the vertebra of his neck in an auto accident. Immediately following that he experienced paralysis, loss of sensation, and was unable to stand. He was taken to an emergency facility at Hillcrest Medical Center where he experienced spontaneously a cessation of symptoms and was released. Subsequently he experienced pain in the right shoulder and arm. Mr. Middlebrook consulted Dr. Imler and x-rays disclosed a fractured dislocated vertebra in plaintiff's neck. The doctor recommended hospitalization and possible surgery which plaintiff postponed for a period of weeks in order to arrange the affairs of his independently-owned business for the necessary three week absence. Plaintiff was admitted to St. John's Medical Center in November of 1976 and placed in traction. Due to various factors, he became constipated after several days on a regular diet, and suffered a perforation of the cecum. Corrective surgery to clean out the abdominal cavity was performed on November 26, 1976. After recuperation from this procedure it was determined by the treating physicians that the traction was not alleviating the cervical spinal defect, and he was operated upon by Drs. Imler and Richardson. The dislocated vertebra was found to be fused to its neighbor on one side. Dr. Imler made a hole to view the dura covering the spinal cord by removing a small portion of two adjacent vertebrae. Dr. Richardson made a strut bone graft on the side of the spine opposite the fusion. During the course of the operation something occurred which caused plaintiff to regain consciousness. Subsequently, he found he had no feeling in his hands and an inability to control the movements of his arms and legs. Quite briefly stated, the cause of this partial paraplegia was determined to be a compromised blood supply to the spinal cord which permanently injured plaintiff's spine and degraded the spine's ability to transmit nerve impulses from below the constricted portion of the spine.

and a derivative action for loss of consortium arising therefrom. After an extensive trial, the cause was submitted to a jury. The jury returned a verdict in favor of all defendants on the cause of action arising from the rupture of a portion of Mr. Middlebrook's intestine while he was hospitalized in St. John's Hospital for treatment of the cervical spinal injury. The remaining claim of Mr. Middlebrook related to the treatment of the spinal injury, and upon that claim the jury found for the plaintiff and against Robert L. Imler, M.D., J.L. Richardson, M.D., Bone & Joint Orthopedics, Inc., and Imler, Tenny, & Kugler, M.D.'s, Inc., returning a verdict in the amount of $2.3 million. On the wife's claim for consortium the jury returned a verdict against the same defendants in the amount of $175,000. The defendants filed a motion for new trial and it was denied; this appeal ensues.

Plaintiff attempted to show the path of the spinal cord through the vertebra was congenitally narrow in his case. That fact, combined with a certain amount of inevitable swelling of the cord resulting from surgery in addition to a further constriction of the spinal canal at the site of the dislocation dictated certain decompressive surgical procedures would have been required of the neurosurgeon. Failure to provide room for the post-operative foreseeable swelling, resulting in loss of blood supply (causing plaintiff's injury) was a violation of the standard of care owed a patient by a neurosurgeon.

Plaintiff's position at trial was that the operation, as planned and executed, could not have been expected to alleviate Middlebrook's symptomology but should have been expected to cause further involvement (swelling) which would further impair plaintiff. Thus, if surgery for this condition were necessary the procedure was inappropriate. Secondly, plaintiff claimed the surgery itself was unnecessary because plaintiff's symptomology was fixed and not progressive, and the risk of the operation was too great to justify surgical relief of the shoulder pain. Additionally, plaintiff claimed that at the first sign of the post-surgery increased neurologic involvement The defendants contended the surgical procedure was necessary and proper because plaintiff was progressively worsening, and the swelling of the cord was an atypical event termed an "ischemic attack of the cord" which could not have been expected or prevented.

he should have been reoperated upon to alleviate the deteriorated condition (which was not done).

Appellants contend it was error to give the jury a res ipsa loquitur instruction in the face of expert evidence of specific acts of negligence. We begin to examine this contention with the consideration that the legislature has spoken to the use of a "presumption of negligence" in medical malpractice actions in 76 O.S. 1981 § 21, which begins as follows: "In any action arising from negligence in rendering medical care, a presumption of negligence shall arise if the following foundation facts are first established:" ¹ The statute provides the presumption is available in "any action" for medical malpractice where it is established plaintiff sustained injury caused by an instrumentality solely under the control of defendant or defendants and such injury does not ordinarily occur absent negligence.

Appellants contend this statute only specifies additional restrictions on the application of the common law doctrine of res ipsa loquitur. Thus for the doctrine to apply it must satisfy the requirements of both the common law and statute. To so limit the application of the statute is contrary to the language found therein, and additionally, is contrary to the precepts expressed in 12 O.S. 1981 § 2 and 25 O.S. 1981 § 29 to the effect that statutes in derogation of the common law are not to be strictly construed but construed liberally to promote their object. We conclude that to limit the statutory presumption of negligence found in 76 O.S. 1981 § 21 only to instances where the statute and the common law doctrine of res ipsa loquitur apply is unwarranted. The statute explicitly states the presumption is applicable "in any action" ... "a presumption of negligence shall arise ..." if three criteria are met. The statutory language is clearly mandatory and clearly applies to all actions for recovery for medical negligence, limited only to actions where plaintiff experiences an injury caused by an instrumentality under the sole control of defendants which does not ordinarily occur absent negligence.

Appellants cite Flick v. Crouch, 555 P.2d 1274 (Okl.1976), for the principle that the doctrine of res ipsa loquitur applies only to cases in which there is no direct evidence to establish negligence. Although that opinion is dated after the effective date of the statute, it is not an action for recovery of damages for medical negligence and thus is not in point here.

Additionally, appellants contend that the persuasive authority of Lambert v. Midwest City Memorial Hospital Auth., 671 F.2d 372 (10th Cir.1982) holds that the statute in question does not authorize a res ipsa type of instruction where plaintiff has knowledge and presents evidence of specific negligent acts. However, it is noted that the res ipsa instruction was found not to be applicable to that case because the defendant was not shown to have exclusive control over the instrumentality causing the harm. Thus we find no error in allowing the res ipsa loquitur instruction.

Appellants predicate reversible error on the failure of the trial court to instruct the jury that an award of damages occasioned by personal injury was not taxable under applicable federal income taxation statutes. Appellants point to Norfolk & Western Ry Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), where the United States Supreme Court found reversible error in the trial court's refusal to instruct the jury that such an award is not taxable in a Federal Employers Liability Act case. Later, in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), that court noted that the ruling of Liepelt was not limited to FELA cases, stating the Federal Employers Liability Act afforded no guidance on the issue and the Liepelt decision reflected a federal common law rule, 453 U.S. at 486, 101 S.Ct. at 2879. Gulf v. Mobil was remanded to state court of Texas for a determination of whether the applicable state law required such an instruction. In Gulf Offshore Co. v. Mobil Oil Corp., 628 S.W.2d 171 (Tex.App.1982), cert. den. 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982), the Texas Court ruled that under the controlling state law of Louisiana, issuance of a non-taxability instruction was...