Nichols v. Tubb

• Decision Date: 19 August 1992
• Docket Number: No. 89-CA-0590,89-CA-0590
• Parties: Frances NICHOLS and David Nichols v. Grayden TUBB, M.D., Tom McDonald, M.D., and North Mississippi Medical Center.
• Court: Mississippi Supreme Court

Page 377

609 So.2d 377

Frances NICHOLS and David Nichols v. Grayden TUBB, M.D., Tom McDonald, M.D., and North

Mississippi Medical Center.

No. 89-CA-0590.

Supreme Court of Mississippi.

Aug. 19, 1992.

Rehearing Denied Dec. 31, 1992.

W. Wayne Drinkwater Jr., Butler Snow O'Mara Stevens & Cannada, Jackson, William S. Lawson, Tupelo, for appellant.

Cary E. Bufkin, Shell Buford Callicutt & Perry, D. Collier Graham, Jr., Shell Buford Firm, Jackson, Robert K. Upchurch, Thomas A. Wicker, Holland Ray & Upchurch, L.F. Sams, Jr., John G. Wheeler, Mitchell McNutt Threadgill Smith & Sams, Tupelo, for appellee.

EN BANC.

HAWKINS, Presiding Justice, for the Court:

Frances and David Nichols appeal from a jury verdict and judgment in the circuit court of Lee County in favor of Grayden Tubb, M.D., Tom McDonald, M.D., and North Mississippi Medical Center in a malpractice suit. On appeal the Nichols contend there was a discovery violation and erroneous refusal of instructions requested by plaintiffs. We find no error and affirm.

FACTS

On Friday, April 13, 1984, Mrs. Nichols, as a patient, went to Dr. Tubb's office in Fulton, complaining of pain in the left side of her neck. She told him she had not been injured. She had no fever. He did an ear, nose and throat examination, and checked her reflexes. He concluded she had a crick, administered an injection of prednisolone and lidocaine, and prescribed 40 soma compound, a combination muscle relaxant and aspirin. He then told her to return if she did not get to feeling better.

Mrs. Nichols returned Tuesday, April 17, this time complaining of pain in the right side of her neck. She had no fever. He diagnosed her as having an acute fibrositis of the sternocleidomastoid muscle. He gave her another injection, and told her to return if she did not get all right.

She returned Monday, April 30, this time complaining of her right knee, which was swollen. She had no fever, and again told him that she was still having trouble with her neck. Dr. Tubb noticed that her knee was puffy, and Mrs. Nichols told him she had experienced congestive heart failure with the birth of her last child eleven or twelve years earlier and had to take digitalis for two years, and was advised not to have any more children. Dr. Tubb silently concluded this was probably her problem, but in order not to alarm her, said nothing. He termed her problem "idiopathic edema" and treated her with lasix, a first medication in congestive heart failure. He also prescribed meclomen, a non-steriodal anti-inflammatory drug.

Mrs. Nichols returned Wednesday, May 2, complaining of her swollen right knee, and of being nervous. She told him she was tense, anxious, and wanted something for her nerves.

She returned on Saturday, May 12, feeling "extremely bad." She continued to have pain in her neck and knee. He diagnosed her ailments as congestive heart failure and arthritis, and hospitalized her, telling her that if her condition did not improve, he would have to send her to the North Mississippi Medical Center (Medical Center) in Tupelo. X-rays and blood tests showed Mrs. Nichols had a completely obliterated disc space between the C-5/C-6 vertebra, and an elevated white blood count. Dr. Tubb's diagnosis was ruptured disc. While hospitalized in Fulton, Mrs. Nichols used a walker.

Mrs. Nichols' condition did not improve, and on Monday morning, May 21, Dr. Tubb telephoned Dr. McDonald, a neurosurgeon, and she was transferred to North Mississippi Medical Center, where Dr. McDonald first saw Mrs. Nichols in the emergency room, and examined x-rays taken in Fulton on May 13. ¹ He noticed a subluxation at the C-5/C-6 level, a slipping of C-5 vertebrate back on C-6 approximately four millimeters, "a little spur" and osteoarthritis, and that the disc space at the C-5/C-6 level was "nearly gone." He made a differential diagnosis of disc rupture caused by tumor, cancer or infection, and ordered a CT scan to be performed the next morning.

On Tuesday, May 22, a CT scan was administered by Dr. Jimmy Trapp, who Dr. McDonald had ruled out trauma as a causation, and was still attempting to determine the causation. He ordered a bone scan which was done that afternoon, Wednesday, May 23. Although he had never encountered an infection in this area, he believed she had some type of infection.

                found obliteration of the disc space at the C5-C6 level and concluded that this area should be evaluated for "bony encroachment on the spinal canal or for [a] herniated cervical disc."   Dr. Trapp suggested that Mrs. Nichols return for further scanning because the disc interspace of greatest interest was not fully included on the examination.  Dr. McDonald also felt this CT scan was inadequate to make a complete diagnosis, and ordered a myelogram, which he attempted to perform that afternoon.  Mrs. Nichols was in such pain, however, the myelogram could not be safely performed.  He then ordered a tomogram, which was done and showed the fifth vertebrate had slipped from about four millimeters to a centimeter, and also that there was bone destruction in the upper part of C-6 and lower part of C-5.  To adjust this instability, Dr. McDonald ordered a cervical collar, but it was not very effective
                

In the meantime other tests had been performed and other doctors had been called in consultation. Dr. Antone Tannehill authorized a isotope bone scan and an echocardiogram to explore possible heart problems on May 22. He found no heart problems. Dr. McDonald and Dr. Tannehill discussed possible diagnosis after Tannehill completed his examination of Mrs. Nichols the same day. ² After reviewing the test results, Tannehill and McDonald agreed that disc space infection was part of their differential diagnosis. Dr. Ben Buchanan, an orthopedic surgeon, aspirated Mrs. Nichols' swollen knee to grow a pyogenic culture. This test revealed Staphylococcus aureus microorganisms, but was not completed until May 25 after Mrs. Nichols was paralyzed.

On Thursday, May 24, at 8:30 p.m., Dr. McDonald put Mrs. Nichols in twenty pounds traction by use of Gardner-Wells tongs, his purpose being to pull against the tight muscles pulling her neck forward, let them relax, re-align her spine, reduce pain and subluxation and stabilize her neck. Pins were put in her skull and the tongs put in place and traction applied. A portable x-ray in the room showed the traction had been properly applied.

Shortly after 9:00 p.m., Dr. McDonald, who was still in the hospital, received a call from Mrs. Phyllis Nolan, a registered nurse on duty, who--according to Dr. McDonald--told him Mrs. Nichols had moved and had pain in her neck, and he told her to "watch her closely" and call him if she had any problems.

At 10:00 p.m. Nolan checked and found that Mrs. Nichols could not grip with her hands. She did not consider this to be a drastic change, and did not notify Dr. McDonald. Nolan continued to monitor Mrs. Nichols' condition during the night, and Debbie Hand, a licensed practical nurse, took over the responsibility of charting her condition. At midnight Hand checked on Mrs. Nichols who "appeared to be sleeping." At 3:00 a.m. Mrs. Nichols told Hand that she had a shooting pain down her neck and back, which was treated with a pain reliever. The 4:00 a.m. notation reads: "[Mrs. Nichols] states arms are weaker. Right grip weak. No grip in left hand. Unable to move legs." No one notified Dr. McDonald of this condition. Nolan returned to Mrs. Nichols' room at 5:30 a.m. and saw her right leg jerking. The nurses' notes read "spouse is holding her right leg as she is having frequent jerking movements that causes severe pain in neck area--at present point she states she cannot move any extremeties--P. Nolan, R.N." Thirty minutes later her legs were still jerking and her temperature was 101 degrees.

She reported these findings to Dr. McDonald.

According to Dr. McDonald, at 6:00 a.m. on Friday, May 25, he received a call from Nolan, who told him that Mrs. Nichols had had a sudden elevation of her temperature and could no longer move her arms and legs. He got out of bed and went to Mrs. Nichols' room. He found that she was paralyzed, her legs were jumping, and she had no voluntary movement of the lower extremities. She had no sensation beneath the C-6 level.

Dr. McDonald took her into emergency surgery. The traction was re-applied while she was on the operating table. Surgery at the C-5/C-6 level showed a pocket filled with dark blood with some whiteness appearing to have some pus in it. With a swab he removed about fifteen drops of this substance for analysis. The innerspace was empty. There was no pressure on the spinal cord. He found evidence of bone destruction, a granulation tissue and a thick fibrous mass. He removed pieces of bone debris also for laboratory analysis.

He cut the posterior longitudinal ligament and saw more material epidurally, in front of the dura mater, which also was removed for laboratory examination. He found no lesion or problem with the posterior ligament.

The laboratory results showed that Mrs. Nichols had a staphylococcus aureus infection.

Following Thursday night, May 24, Mrs. Nichols was a quadraplegic.

Suit was filed April 8, 1986, in the circuit court of Lee County against Drs. Tubb and McDonald and the North Mississippi Medical Center for malpractice. Dr. Tubb was charged with failure to properly diagnose Mrs. Nichols, the hospital with improper care, and Dr. McDonald with causing the paralysis in using the tongs as traction. ³

At trial William Gary, M.D., and Houston Franks, M.D., testified for plaintiffs, and Grayden Tubb, M.D., Tom McDonald, M.D., Robert R. Smith, M.D., and Richard Naef, M.D., testified for the defendants.

PROOF OF MALPRACTICE

William Gary, M.D., a general practitioner, testified Dr. Tubb should have ordered additional x-rays after Lester Willis, M.D., saw a "complete obliteration of the C-6, C-6 disc space" on May 14 from x-rays taken by Dr. Tubb on ...