Sammons v. Smith, 69345

• Decision Date: 18 July 1984
• Docket Number: No. 69345,69345
• Citation: 353 N.W.2d 380
• Parties: Erma A. SAMMONS and Merlyn Sammons, Appellants, v. Koert R. SMITH, Wilfrido Calderon and Burlington Medical Center, Appellees.
• Court: Iowa Supreme Court

Page 380

353 N.W.2d 380

Erma A. SAMMONS and Merlyn Sammons, Appellants, v. Koert R. SMITH, Wilfrido Calderon and Burlington Medical Center, Appellees.

No. 69345.

Supreme Court of Iowa.

July 18, 1984.

Rehearing Denied Aug. 16, 1984.

William C. Ball and Jay A. Nardini of Ball, Kirk & Holm, P.C., Waterloo, for appellants.

Robert V.P. Waterman of Lane & Waterman, Davenport, for appellee Koert R. Smith.

Michael H. Figenshaw of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee Wilfrido Calderon.

Ralph D. Sauer of Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellee Burlington Medical Center.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McGIVERIN, and CARTER, JJ.

REYNOLDSON, Chief Justice.

The fighting issues in this medical malpractice case involve application of the res ipsa loquitur doctrine and certain jury instructions. The court of appeals reversed a judgment for defendants based on the jury's verdict. We granted further review and now affirm the court of appeals ruling, and remand for new trial.

In late 1976 plaintiff Erma Sammons ¹ consulted Dr. Rankin, her family physician at Mt. Pleasant, Iowa. She then had a two-year history of intermittent pain and swelling in her right knee. Ultimately this doctor referred her to defendant Dr. Koert Smith, a board-certified orthopedic surgeon at Burlington, Iowa.

Plaintiff first met with Dr. Smith on February 25, 1977. Tests revealed torn cartilage in plaintiff's knee. She elected to undergo a meniscectomy operation to remove it.

Dr. Smith informed plaintiff of the possible risks of the surgery including infection, thrombophlebitis (blood clots in the leg), increased risk of degenerative arthritis, and adverse reaction to the anesthetic. He did not suggest the possibility of postoperative nerve damage because of "the very remote likelihood that that happens."

March 31, 1977, Dr. Smith operated on plaintiff's knee. This involved removing the torn cartilage "cushion" in the knee joint through two incisions, one in front and one in the back of the knee. During this surgery an automatic, air-inflated tourniquet was applied to plaintiff's upper right leg, to cut off the supply of blood at the surgery site.

Although Dr. Smith testified he did not remember plaintiff's operation specifically, he assumed the tourniquet cuff was applied by the operating room nurse, an employee of defendant Burlington Medical Center, set at his own direction (here to 500 millimeters of mercury pressure), and monitored by the anesthesiologist, Dr. Calderon, or by the operating room nurse. There was nothing in the operative record that disclosed anything unusual had occurred during the two-hour surgery.

Upon regaining consciousness, plaintiff complained of numbness in her right foot and inability to move her toes. Dr. Smith diagnosed the problem as a possible tourniquet ischemia: nerve damage resulting from shutting off the blood supply to the nerve during the surgery. Plaintiff was discharged from the hospital April 17, 1977, on crutches, and subsequently was fitted with a leg brace.

After her discharge, plaintiff continued to see Dr. Smith, but her condition did not improve. She then consulted Dr. Richard Neiman, a board-certified neurologist practicing in Iowa City. Dr. Neiman described plaintiff as having "somewhat of a pegged-like leg deformity." Her leg "would hang loose on down with loss of sensation." Dr. Neiman's electromyographic studies revealed "a woody-like consistency of the muscles of the anterior portion of the shin with essentially no evidence of any muscle activity." He concluded the peroneal and the tibial nerves had been damaged permanently, a conclusion uncontroverted in this record.

March 27, 1979, plaintiff and her husband sued Dr. Smith, Dr. Calderon and the Burlington Medical Center. They also sued Walter Kidde and Company, manufacturer of the tourniquet, but dismissed the action against that defendant immediately before trial. The petition alleged several specific acts of negligence against the doctors and the medical center, but also included counts grounded on the doctrine of res ipsa loquitur.

At trial plaintiff's family physician, Dr. Rankin, testified her damage was caused by ischemia sustained during her operation, and that during the 16 years he had treated plaintiff for various illnesses he observed nothing that would make her unusually susceptible to tourniquet pressure.

Neurologist Neiman testified the injury occurred during the operation and "the most likely cause was the tourniquet." He opined that tourniquet damage would result from either excessively long use or excessive pressure, although neither appeared in plaintiff's medical record. He stated "there was excessive pressure produced by the tourniquet, and this seemed to be the most likely cause of the injury." This witness testified he had discussed this opinion with defendant Dr. Smith, who agreed with it. Although Dr. Neiman testified he had "never seen a worse result," he felt "it would be unlikely" that the damage resulted from any abnormality on plaintiff's part. His final conclusion was that "something happened that was inordinate during the time of the surgery" and that "[t]his type of injury is not a normal consequence of knee surgery, and it would hopefully have been avoided if a proper care was taken." On cross-examination Dr. Neiman agreed the injury could have occurred despite the fact the doctors exercised due care in the surgery. He further agreed that "different people are susceptible and can be injured by different levels of pressure."

As an expert witness, plaintiff called Dr. Kurt Konkel, a board-certified orthopedic surgeon and medical college teacher in orthopedics. He opined plaintiff's injury would "not have happened if reasonable care had been used by ... the hospital personnel and physicians involved." He found "no evidence ... that would indicate that [plaintiff] had some vascular anomaly" and characterized the result as "an act of man rather than an act of God." This witness agreed that surgery was indicated, the use of the tourniquet was appropriate, and the stated usage of this device for almost two hours at 500 millimeters of mercury pressure was within (but at the outer limits of) acceptable procedure.

Dr. Konkel's examination of the medical records disclosed nothing to indicate plaintiff was unusually susceptible to tourniquet ischemia, or that either doctor had departed from accepted medical standards. He agreed the injury could have occurred despite Dr. Smith's due care. He opined the most likely cause of the injury was an inadvertent excess of tourniquet pressure that occurred as a result of improper calibration of the device. Less likely causes, in his judgment, were Dr. Smith's possible failure to examine the size, padding and placement of the tourniquet, and Dr. Calderon's possible failure to monitor the tourniquet gauge. He noted the tourniquet machine was outdated and that it should have been checked routinely by the medical center. He was firm in his conviction that the possibility of the injury being caused by some peculiar susceptibility of plaintiff rather than by an act of man was "considerably less" than one percent.

Dr. Smith testified in his own behalf. He considered it "possible" that the tourniquet had been miscalibrated and agreed that it was the mechanism that probably caused the injury. Although he found no medical evidence indicating plaintiff had an unusual susceptibility to tourniquet ischemia, he opined her injury was due to such an "anomaly." He did concede the "possibility" the injury was caused by human error and assigned malfunction of the tourniquet as a possible factor. He considered as far less likely the possibilities of a pressure point, error in setting the tourniquet gauge, or failure to monitor the tourniquet pressure.

Dr. Calderon testified it was the practice for him and the operating room nurses to monitor the tourniquet pressure. He did not recall who activated the tourniquet in this instance. He agreed it could have been excessive pressure at the tourniquet cuff that caused plaintiff's injury. Although his timing of tourniquet use was 1 hour 56 minutes, he offered no explanation for the reason the circulating nurse failed to fill out the tourniquet time on the operating record.

The medical center submitted the testimony of Donald Madsen, a professor of energy engineering at the University of Iowa. He testified the pressure gauge was a durable device and would not be at all likely to drift. He opined the possibility of a change in calibration was "nil."

Trial court overruled defendant doctors' motions for directed verdict. The case against the doctors was submitted to the jury only upon the res ipsa loquitur theory. The case against the medical center went to the jury on allegations of specific negligence and alternatively, upon the jury's failure to find specific negligence, upon the theory of res ipsa loquitur as to that defendant.

After only two and one-half hours of deliberation, the jury returned a verdict in favor of all the defendants. Plaintiff's post-trial motions were overruled. She appealed and the court of appeals reversed and remanded for new trial. We granted further review and now affirm the court of appeals decision. The controlling issues are discussed in the following divisions.

I. Instruction 14B--Specific Negligence.

Trial court's instruction 14 explained the res ipsa loquitur doctrine and provided its elements. The general duty of care of a specialist was explained in instruction 14B, which was identical with uniform instruction 13.3. In instruction 14B, however, the court submitted the following:

You are instructed that a doctor cannot be found negligent merely because he makes a mistake in the treatment of a patient. Any error in treatment, if you find any, does not in and of itself constitute negligence. For a doctor to be found negligent,...