Wisher v. Higgs
| Decision Date | 21 April 1992 |
| Docket Number | No. 91-216,91-216 |
| Citation | 50 St.Rep. 191,257 Mont. 132,849 P.2d 152 |
| Parties | Patricia WISHER, Plaintiff and Appellant, v. Wilson A. HIGGS and Wilson A. Higgs, M.D., P.C., Defendants and Respondents. . Heard |
| Court | Montana Supreme Court |
Craig Stephan (argued), Phoenix, AZ, Ann German, Libby, for plaintiff and appellant.
I. James Heckathorn (argued) and Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendants and respondents.
*
The plaintiff, Patricia Wisher, appeals from a jury verdict rendered in a medical malpractice action tried in the Eleventh Judicial District Court, Flathead County. The defendant, Dr. Wilson Higgs, stipulated prior to trial that the preponderance of medical testimony established that Ms. Wisher incurred an injury during a surgery that he performed on November 14, 1979. Specifically, Ms. Wisher sustained a dehiscence, or hole, in her left inner ear following a left facial nerve decompression procedure. Dr. Higgs also stipulated that the preponderance of medical testimony established that the surgical result obtained was below the standard of care. The District Court ruled that this was negligence as a matter of law. Dr. Higgs presented a statute of limitations defense to the action.
The sole issue submitted to the jury was whether the tolling provisions of § 27-2-205, MCA, were met. Through the use of a special verdict form, the jury found by a preponderance of the evidence that (1) prior to November 1, 1981, through the use of reasonable diligence, Ms. Wisher should have discovered her injury, and that her injury may have been caused by the surgery; and (2) prior to November 1, 1981, Dr. Higgs's conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that her injury may have been caused by the surgery.
We affirm in part, and reverse and remand in part for a new trial on the issue of damages.
We restate the dispositive issues as follows:
1. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury's finding that Ms. Wisher, through the exercise of reasonable diligence, should have discovered before November 1, 1981, (i) her injury, and (ii) that her injury may have been caused by the surgery.
2. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury's finding that Dr. Higgs's conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1, 1981.
On September 3, 1979, Patricia Wisher presented herself to the emergency room at Kalispell Regional Hospital complaining of a headache and paralysis on the left side of her face. She was diagnosed with Bell's palsy, a disease process affecting the seventh cranial nerve. Ms. Wisher initially sought follow-up care from a Kalispell neurologist named Dr. Schimpff on September 5, 1979. After ruling out cranial pathology, Dr. Schimpff recommended that she follow-up with Dr. Higgs, a Kalispell otolaryngologist.
Ms. Wisher was initially examined by Dr. Higgs on September 6, 1979. When her condition failed to improve with the use of steroids and the passage of time, Dr. Higgs recommended that Ms. Wisher undergo left facial nerve decompression surgery. This surgery was performed at Kalispell Regional Hospital on November 14, 1979.
In the immediate post-operative period Ms. Wisher experienced symptoms of pain, nausea, dizziness, loss of equilibrium, vomiting, and buzzing in her left ear. Dr. Higgs attributed these symptoms to the side effects of anesthesia and to a condition known as post-operative labyrinthitis, an inflammatory process of the inner ear canal which he attributed to the surgical procedure itself. Dr. Higgs noted that this condition persisted in spite of the use of labyrinthine suppressant drug therapy. He discharged Ms. Wisher from the hospital on November 18, 1979.
When Ms. Wisher returned to Dr. Higgs's office on November 30, 1979, for an exam, Dr. Higgs noted that the symptoms of post-operative labyrinthitis remained at that time. He continued the labyrinthine suppressant therapy and instructed her to follow-up in two weeks. The exam on December 17, 1979, revealed that Ms. Wisher's balance had improved; however, her hearing problem remained unchanged. Dr. Higgs ordered her to continue the labyrinthine suppressant therapy and to return to his office in two months. She returned on February 22, 1980. Her condition remained unchanged.
On February 28, 1980, Dr. Higgs wrote a letter to Dr. Schimpff informing him that Ms. Wisher suffered from a post-operative labyrinthitis; however, he stated that he expected her to experience further improvement with the passage of time. Ms. Wisher returned to Dr. Higgs's office on March 6, 1980, for complaints of facial pressure, sore throat, and sneezing; and on June 2, 1980, for a left occipital neuralgia (headache). She did not return to Dr. Higgs's office for the remainder of 1980, 1981, or the first eight months of 1982. According to her testimony, during this period of time she experienced some improvement in her symptoms. This testimony is uncontradicted by the defense.
Thereafter, on September 20, 1982, Ms. Wisher returned to Dr. Schimpff's office complaining of headaches, nausea, balance dysfunction, and tinnitus. Dr. Schimpff scheduled her for a posterior fossa CT scan to rule out the possibility of a cranial tumor. When a tumor was ruled out, he referred her back to Dr. Higgs for evaluation of continued tinnitus and decreased hearing in the left ear. She returned to Dr. Higgs's office on September 24, 1982, with complaints of increased left ear pressure and tinnitus. Dr. Higgs continued to treat her symptomatology as post-operative labyrinthitis at that time.
In early January 1983, Ms. Wisher requested a referral from Dr. Higgs for her continuing symptoms. Dr. Higgs referred Ms. Wisher to Dr. J.V.D. Hough of Oklahoma City, Oklahoma. He wrote a letter to Dr. Hough on January 6, 1983, which provided his assessment of Ms. Wisher's ongoing problem:
Post operatively, [Ms. Wisher] developed what I felt was an acute labyrinthitis, in as much I was not aware of any fistula into the inner ear. Post operatively, she experienced rather dramatic return of facial function, and gradual improvement of her balance disturbance over a period of a few weeks. She continued to have hearing loss however, with a certain degree of tinnitus....
In mid 1980 she developed left occipital neuralgia which required medical therapy. She continued to improve with the exception of her hearing and tinnitus during the interval until she was seen this Fall.
[I]n September of 1982, [she gave a history of] having heaviness in the right arm with decreased rapid alternating movements noted on physical examination. She was left with a mild synkinesis of the left side of the face, no nystagmus, and the Weber on the forehead lateralized to the right, indicating severe hearing loss in the left [ear]. She further had left occipital nerve tenderness. A CT head scan was then performed to exclude other CNS pathology and this was essentially normal.
Ms. Wisher did not follow-up with Dr. Hough in Oklahoma, but instead she saw physicians and chiropractors in Oregon and California. The record reveals that Ms Wisher suffered from headaches, cervical spine pain, and TMJ pain prior to her surgery in 1979. Her testimony revealed that she sought continued therapy for these problems, and that she was unsure as to which medical condition was causing her symptoms. Ms. Wisher's final office visit with Dr. Higgs was on March 28, 1983, when she presented with complaints that her jaw was clamping. Dr. Higgs noted that her ears were okay. He provided a dental consultation.
Dr. Perjessy, a general practice dentist in Kalispell, began treating Ms. Wisher on May 16, 1983. He referred Ms. Wisher to both Dr. Windauer, a Kalispell orthodontist, and Dr. Bertz, an oral and maxillofacial surgeon in Scottsdale, Arizona, who ultimately performed multiple surgeries on both her left and right temporomandibular joints. Dr. Bertz testified that he was unable to distinguish whether the dizziness from which Ms. Wisher was suffering was attributable to the surgery by Dr. Higgs or whether it was symptomatic of her concurrent TMJ problems. He noted that the inflammation process around the TMJ and the semicircular canals of the inner ear were close in proximity and he could not rule out which process was causing her dizziness.
Dr. Bertz consulted with several Scottsdale, Arizona, physicians concerning Ms. Wisher's symptoms, including neurologists, Dr. Goodell and Dr. Reese, and an otolaryngologist, Dr. Weiss. Dr. Goodell initially suspected that Ms. Wisher suffered from a progressive neurologic phenomena. However, after ruling this out by CT scan, he was of the opinion that Ms. Wisher suffered from residual hearing loss and facial weakness as a result of a viral neurologic lesion (the Bell's palsy) she suffered four years previously. In other words, he attributed the symptoms to the underlying Bell's palsy pathology and not pathology associated with injury to the inner ear during surgery. Dr. Weiss, the consulting otolaryngologist, was unable to diagnose a dehiscence in the inner ear.
Ms. Wisher saw another otolaryngologist named Dr. Nowak on January 24, 1984. Dr. Nowak performed an audiogram which revealed sensorineural deafness of a moderately severe degree in her left ear. He informed both Ms. Wisher and Dr. Bertz at that time that in his medical opinion this patient suffered from an injury to the horizontal canal of her left inner ear. In his opinion Ms. Wisher sustained this injury during facial nerve decompression surgery in 1979.
Ms. Wisher filed an Application for Review...
To continue reading
Request your trial
-
Blackburn v. Blue Mountain Women's Clinic
...that a failure to disclose certain facts may be sufficient to toll the five-year statute of repose. Indeed, in Wisher v. Higgs (1993), 257 Mont. 132, 145, 849 P.2d 152, 160, we clarified that, pursuant to the specific terms of § 27-2-205(1), MCA, simple "failure to disclose facts, as oppose......
-
Selensky-Foust v. Mercer
...MT 290, ¶ 19, 389 Mont. 387, 406 P.3d 452 (citing Major v. N. Valley Hosp., 233 Mont. 25, 30, 759 P.2d 153, 156 (1988); Wisher v. Higgs, 257 Mont. 132, 144, 849 P.2d 152, 159 (1993)); § 27-2-205(1), MCA; see also Runstrom, ¶ 31. It is not disputed that Selensky was advised on the day of his......
-
Wilson v. Brandt
...should discover (1) her injury, and (2) that the injury "may have been caused" by the defendant medical provider. Wisher v. Higgs, 257 Mont. 132, 144, 849 P.2d 152, 159 (1993), overruled on other grounds by Blackburn v. Blue Mt. Women's Clinic, 286 Mont. 60, 75, 951 P.2d 1, 10 (1997). He ar......
-
Jellum v. Dalkon Shield Claimants Trust
...date when an injured person is prevented from knowing of their injury by concealment or other circumstances. Wisher v. Higgs, 257 Mont. 132, 140, 849 P.2d 152, 156-7 (Mont.1993); Hando v. PPG Indus., Inc., 236 Mont. 493, 502, 771 P.2d 956, 961-2 (Mont.1989); Bennett v. Dow Chemical Co., 220......
-
Defining the boundaries of the adverse domination doctrine: is there any repose for corporate directors?
...adversary must commit some affirmative independent act of concealment upon which the plaintiffs justifiably rely. But see Wisher v. Higgs, 849 P.2d 152, 160 (Mont. 1993) ("The language of [the fraudulent concealment statute] indicates that simply failure to disclose facts, as opposed to aff......