Ross v. Hodges
Decision Date | 20 April 1970 |
Docket Number | No. 45657,45657 |
Citation | 234 So.2d 905 |
Parties | Veronica M. ROSS v. Dr. Lucien R. HODGES. |
Court | Mississippi Supreme Court |
Cox, Dunn & Clark, Wm. H. Cox, Jr., Jackson, for appellant.
Daniel, Coker, Horton & Bell, Jackson, for appellee.
This is a medical malpractice action, brought in the Circuit Court for the First Judicial District of Hinds County by Mrs. Veronica M. Ross, appellant, against Dr. Lucien R. Hodges, defendant-appellee. The declaration was based on two theories: Negligent selection and use of surgical instruments in the operation, and lack of informed consent by the patient to the operation. At the close of the plaintiff's case, the circuit court directed a verdict for defendant on the issue of informed consent, and sent the case to the jury on the negligence issues. We affirm the trial court's judgment based on a jury verdict for defendant.
Toward the end of January 1966, Mrs. Ross noticed a small lump on her head, and her gynecologist sent her to a radiologist to have it x-rayed. He thought it was a scalp tumor, and referred her to a general surgeon, Dr. George Twente, who concluded that she had a scalp tumor and arranged for an operation several weeks later. Mrs. Ross was admitted to the hospital as Dr. Twente's patient on March 27, 1966. When admitted, she signed a 'Consent for Admission and Treatment' form, which read in part:
1. I * * * am * * * suffering from a condition requiring diagnosis and treatment, voluntarily consent to such procedures, treatment and operations as are considered necessary by Dr. Geo. Twente, his assistants or designees.
2. I am aware that the practice of medicine and surgery is not an exact science, and I acknowledge that no guarantees have been made to me as to the result of treatments or examinations in the hospital.
6. This form has been fully explained to me and I certify that I understand its contents.
Pursuant to orders by Dr. Twente, Dr. Evans made x-rays, which he interpreted to show a 'lesion' of the skull, diagnosed as an 'intra-diploic epidermoid.' Dr. Evans observed that such a lesion is 'supposed to be benign, but it does grow and due to the fact that it grows and becomes larger, I guess you would have to say it is malignant.' Dr. Twente requested Dr. Lucien Hodges, the defendant, to see Mrs. Ross, and he did so. Dr. Hodges first prescribed an arteriogram, which involved inserting a needle in an artery in the neck and injecting dye into the brain. Mrs. Ross said that 'it just scared me to death.' The radiologist concluded, from the arteriogram, that 'there is no huge amount of displacement inward of the tumor.' After the test, Dr. Hodges showed Mr. Ross, appellant's husband, the x-rays on a lighted screen and explained the results of the test. There seems to be no question but that the operation was going to be performed.
Mrs. Ross was concerned that she might have to have her entire head shaved, so Dr. Hodges explained that this would not be done, only a small area would be shaved and cosmetically her hair could be combed over it. Both Mrs. Ross and her husband understood that the procedure consisted of physically cutting into the skull to remove a section of the bone. According to Mrs. Ross, when Dr. Hodges told her about the operation to be performed the next morning, he said:
He told me there wasn't anything for me to worry about, that there wasn't going to be anything to it. I was worrying about having my head shaved. He said, And he told me he was going to use this little saw-s-a-w (spelling) saw. That it wouldn't take very long. I thought he said about forty-five minutes. I remember him saying something like that.
Mrs. Ross also said that she thought it was going to be a 'simple operation' for a neurosurgeon, that it was not much more than a scalp tumor, and she did not think the brain would be involved, although she was concerned that she 'might have a malignant tumor.' She stated that the doctor 'never mentioned any danger or any risk,' and that she would not have had the operation if she had thought she might have any paralysis.
No issue is made as to the training, experience and competency of Dr. Hodges as a neurosurgeon. The conflicting evidence was directed toward alleged negligence in selection of surgical instruments and in their use. Both issues, we think, were questions for the jury, which decided adversely to plaintiff. Dr. Hodges testified in great detail as to the reasons why he selected a circular, two-inch traphine saw with which to remove the fibrous dysplasia of the bone, instead of using a goose-neck rongeur or a Gigli saw. The reasonableness of this selection of instruments is supported to a substantial extent by the testimonies of Drs. Azordegan and Echols, neurosurgeons who testified for plaintiff, as well as by Drs. Murphy and Andy, neurosurgeons who testified for defendant.
On the issue of negligence in the use of surgical instruments in this operation, Dr. Hodges testified in great detail about every step of the operation and every procedure used therein. His surgical nurse also testified about the operation, by a deposition introduced in evidence. Four neurosurgeons, two as witnesses for plaintiff and two as witnesses for defendant, testified concerning their experiences and knowledge about such operations. From the tests made, Dr. Hodges thought that he could get completely around the bony lesion in the skull with the traphine saw and remove the lesion entirely. At intervals in revolutions of the saw over the surface of the skull, he removed the saw, irrigated the perforation, and examined its depth into the skull. A human skull is not only somewhat rounded, but varies in thickness. As he was using the traphine saw, the back edge of it suddenly and unexpectedly cut through part of the diseased bone and lacerated the dura (a thin lining of the brain) and a very small area of the brain's cortex. This cut a blood vessel on the surface and required immediate hemostasis by means of electrocoagulation. The laceration was about a centimeter in length, and was very superficial in depth, but required a probing for the artery in order to stop the bleeding. As a result, Mrs. Ross unforunately suffered a neurological deficit in her left hand, arm, shoulder and face. Several months later, Dr. Azordegan performed a cranioplasty on Mrs. Ross, covering the aperture in her skull. Dr. Dean Echols, a neurosurgeon of New Orleans, examined Mrs. Ross on June 29, 1968, and testified as her witness. He stated that Mrs. Ross has a spastic left upper extremity, especially the forearm, wrist, hand and fingers, and cannot use her shoulder and elbow very well. The weakness in her face has 'almost completely cleared up and is not a problem at all,' although she still has a sensation of numbness in the left half of her face.
Dr. Echols and the other neurosurgeons testified in substance that damage to the covering of the brain and sometimes a little cutting of the surface with the saw is quite common, but that it is an extreme rarity and a remote...
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