Turner v. Temple, 89-CA-0753

Citation602 So.2d 817
Decision Date27 May 1992
Docket NumberNo. 89-CA-0753,89-CA-0753
PartiesCharles Milton TURNER and Bessie Boyd Turner v. Van H. TEMPLE, M.D., David J. Gandy, M.D., Lakeland Orthopedic Clinic, P.A.
CourtUnited States State Supreme Court of Mississippi

Alfred L. Felder, McComb, for appellants.

Clifford B. Ammons, James A. Becker, Jr., Frank A. Wood, Jr., Watkins & Eager, Jackson, for appellees.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Charles Milton Turner and Bessie Boyd Turner, his wife, filed suit in the Circuit Court of the First Judicial District of Hinds County, Mississippi, alleging medical malpractice against Van H. Temple, M.D. and David L. Gandy, Jr., M.D. in conjunction with a surgical procedure performed on August 2, 1982. The case went to trial on February 13, 1988, and the jury returned a verdict in favor of the defendants. Judgment was entered accordingly and the Turner's motion for a judgment notwithstanding the verdict or in the alternative, a new trial, was denied. The Turner's have appealed to this Court and have presented four issues for decision.

FACTS

Charles Turner, born March 4, 1951, fell and injured his back in October of 1978 while working for Bechtel Construction at the Grand Gulf Nuclear Power Plant. This litigation arose from the last of four surgeries done on Turner in attempts to alleviate his chronic pain resulting from the injury.

After the injury, Turner first went to Dr. Ben Crawford in Tylertown. Dr. Crawford hospitalized Turner and placed him in traction for eleven (11) days. When Turner still complained of pain in his back and left leg, Dr. Crawford sent him to see Dr. Meyer, an orthopedic surgeon in McComb. Dr. Meyer treated Turner conservatively from January until May of 1979, when he finally attempted a spinal fusion operation. After the operation, Turner felt better for a time and then the pain returned. Dr. Meyer then referred Turner to a neurosurgeon, Dr. Glen Warren in Jackson. Dr. Warren performed surgery at Doctors Hospital in Jackson in April of 1980, assisted by Dr. Van Temple, who checked to see if the prior fusion operation had succeeded and found that it had not. After this operation, Turner again improved temporarily but his pain returned. Turner returned to Dr. Warren in February of 1981 and this time Dr. Warren performed a rhizotomy, which means simply that he clipped a nerve believed to be one of the sources of pain.

Turner still did not obtain substantial relief from the pain he was suffering, and he went to Dr. Temple, who had become his primary physician, to see if anything further could be done. Dr. Temple became Turner's primary physician. Turner was admitted to River Oaks Hospital in June or July of 1981 for more tests. Dr. Temple decided that another fusion operation could help Turner and scheduled an operation for October of 1981. Dr. Temple testified that However, Dr. Temple had second thoughts about the operation and cancelled it. Instead, he sent Turner to an orthopedic surgeon in Dallas, Dr. Wharton, who specialized in spinal injuries and operations. One reason Temple wanted Turner to see Dr. Wharton was that since there had already been three surgeries on Turner's back, the amount of scar tissue present would further complicate the operation. Dr. Wharton's expertise allowed him to do spinal procedures from the anterior or front of the body, thereby avoiding the complications associated with working with so much scar tissue.

his relationship with Turner had become very close, almost like that of a parent and child. He stated that Turner asked him to have Dr. Warren at the surgery and that he assured Turner that Dr. Warren would be there.

The trip to Dallas was in October of 1981. Dr. Wharton put Turner in a Rainey-Flexion Vest, which partially immobilized the spine, in order to test whether a spinal fusion operation would help. Turner wore the vest until he returned to Dr. Wharton in March of 1982, and claimed that the vest helped. Dr. Wharton had more tests done, including a psychological evaluation on Turner, then discharged him and told him that he would write Dr. Temple explaining his conclusions to him and Dr. Temple would relay the results to Turner. Turner and his wife were very disappointed at this, since they had gone to Dallas expecting Dr. Wharton to do the surgery.

Shortly after his return from Dallas, Turner returned to Dr. Temple on April 15 and learned that Dr. Wharton had recommended that Turner not have the fusion surgery. Dr. Temple testified that the reason Wharton advised against the surgery was that the psychological evaluation showed that Turner was too depressed to be a good candidate for surgery at that time. Nevertheless, Dr. Temple told Turner that he could still do the surgery. Dr. Temple testified that he told Turner that there was only about a 10% chance that the surgery would help, and that the operation could possibly make him worse. Turner testified that Dr. Temple only told him that the pain might be worse, better or the same and that he did not tell him about the possibility of cord or nerve damage. Both agree that Turner again asked that Dr. Warren attend the surgery and Dr. Temple agreed that Dr. Warren would attend.

However, the surgery was not immediately scheduled. Dr. Temple wanted Turner to think about it and come back for another office visit in June. On June 10, Turner returned and repeated his desire to have the surgery, as well as his request that Dr. Warren be there for the surgery. Dr. Temple again assured Turner that Dr. Warren would be there. However, Dr. Temple wished to wait until a new associate, Dr. David Gandy, arrived, since he had more experience using the Harrington Rod technique planned for Turner's operation. He asked Turner to return in July for an appointment with Dr. Gandy, which Turner did.

Dr. Gandy examined Turner in July and he testified that he warned Turner of the possibility of cord or nerve damage and that the possibility was greater because of the heavy scarring in his back. Turner denied that he was ever warned of the possibility of nerve damage and claimed that the only risk he was warned of was that associated with anesthesia. However, he admitted that he had been warned of the possibility of cord damage when Dr. Meyer performed the first operation on him in 1979. He signed a consent form for the surgery, although he did not read it and it stated merely that the risks had been explained to him and did not specifically list what the risks were.

Both Turner and his wife testified that although Turner experienced a great deal of pain in his lower back and left leg before the surgery and was unable to hold a job, he was able to do most of the things any other person could do. He could walk normally, mow the grass, take care of and play with his children, drive a car, etc. He was able to have somewhat normal sexual relations with his wife, although the pain in his back somewhat limited that. His only Turner entered River Oaks Hospital in Jackson on August 1, 1982, for the surgery scheduled the following day. The surgery was performed on August 2 by Dr. Temple with Dr. Gandy assisting. Dr. Temple never notified Dr. Warren and he was not present. The method of fusion chosen was the use of Harrington Rods combined with a bone graft. Briefly, the procedure involved the insertion of two stainless steel rods (Harrington Rods) on either side of Turner's spine. The Rods were connected together by hooks and served to hold the spine in place so that the bone graft could take hold and fuse the vertebrae together.

other medical problem was that he had some problem with retention in his kidneys, i.e., he had trouble beginning to urinate.

Dr. Temple decided to use two incisions on either side of the spine to insert the Rods, hoping to avoid the complications of working with the scar tissue from the previous operations which had used incisions along the spine. He inserted one of the Rods and Dr. Gandy inserted the other. During the course of the operation, Dr. Temple was working close to the exposed spinal cord when the instrument which he was using, a Cobb elevator, brushed the cord and caused Turner's spine to flex. Other than that incident, the operation went smoothly and according to plans. The operation began at around 8:00 a.m. and ended about noon.

Dr. Temple checked on Turner four times that day after the operation, the last time at about 10:30 p.m. He noted nothing unusual until the last visit, when he noted, "Can rotate legs slightly. Can flex and extend toes. Still can't get him to dorsiflex and plantarflex ankles, but does slightly plantarflex ankles. Sensation okay. Possibly hyeraesthetic--hyperaesthetic both legs at L-5 on the left, but does have rhizotomy on the left. Otherwise, doing very well." This notation is the main basis for this lawsuit; Turner contends that, at that point, Dr. Temple should have been aware that neurological damage was resulting from the operation.

Turner remained in the hospital after the surgery until October 21, 1982. Dr. Temple and Dr. Gandy both testified that the first objective manifestation of possible neurological complications came on August 8. Dr. Temple testified that on that date he noted a tendency toward permanent nerve damage by his observation of hyperaesthesia (increased sensitivity) and soreness in Turner's thighs, calves, feet and toes, more pronounced on the left side. These problems persisted and eventually Turner developed numbness in the lower part of his body and a condition described as drop-foot, where Turner was unable to properly move his feet up and down.

The condition persisted until the time of trial, although some slight improvement had been noted. This condition has greatly affected his ability to walk. He wears special shoes and braces and usually needs a cane to walk; sometimes in unfamiliar places he needs assistance to remain steady. Turner also claims that as a...

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