Engleman v. McCullough

2017 Ark. App. 613, 535 S.W.3d 643, 2017 Ark. App. LEXIS 698
CourtCourt of Appeals of Arkansas
DecidedNovember 15, 2017
DocketCV-16-786
StatusPublished
Cited by2 cases

This text of 2017 Ark. App. 613 (Engleman v. McCullough) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Engleman v. McCullough, 2017 Ark. App. 613, 535 S.W.3d 643, 2017 Ark. App. LEXIS 698 (Ark. Ct. App. 2017).

Opinion

ROBERT J. GLADWIN, Judge

| Appellant Natasha Engleman appeals the judgment entered on February 10, 2016, by the Carroll County Circuit Court in favor of appellees Cindye McCullough, St. John’s Clinic, Inc., a/k/a Mercy Clinics Springfield Communities, and John Does 1-3 following a jury trial in a nursing-negligence case. Appellant argues that the trial court erred in giving Arkansas Model Jury Instruction (AMI) 1501 over the objection of her counsel and, in effect, instructing the jury to consider only the testimony of the nurses and not to consider her testimony concerning the anatomic location where Nurse McCullough administered the intramuscular-steroid injection on March 3, 2011. She also argues that the trial court erred in refusing to give the modified version of AMI 1501 that she requested and proffered. We affirm.

|¾1. Facts

On March 3, 2011, appellant presented to St. John’s Clinic in Berryville, Arkansas, to receive an intramuscular-steroid injection to treat her allergies. The injection was administered by Nurse McCullough, a licensed practical nurse (LPN) employed by St. John’s Clinic. Although appellant’s chart reveals no complaints or complications immediately following the injection, appellant claims that just after the injection she experienced severe shooting pain down her leg that worsened over time. She further related that she was unable to walk out of the clinic and had to hobble out instead.

Appellant’s grandmother, Karon Ric-hert, was present in the waiting room to pay for her granddaughter’s shot. According to Ms. Richert, appellant was limping severely when she emerged from the room where the shot had been administered.

When appellant returned to the clinic to see Dr. Craig Milam, he noted that her left knee was swollen and tender. He prescribed crutches and a knee brace and ordered a gout test, which came back negative. Dr. Milam testified that before March 3, 2011-, the date of the injection, appellant had not complained about her leg.

As appellant’s severe leg pain and weakness continued and she developed a foot drop, she consulted informally with a friend, K.D. Zeit, who is a registered nurse (RN), and began to wonder whether her sciatic nerve had been injured as a result of the shot.

She was subsequently seen at a clinic that referred her for EMG testing by neurologist Dr. Omar Al Khatib. The first EMG testing was suggestive, but inconclusive, for sciatic neuropathy, and the second EMG test results were normal.

[.-¡Through research, appellant learned of a California neurosurgeon, Dr. Aaron Filler, a former director of the Peripheral Nerve Surgery Program at Cedar Sinai Medical Center in Los Angeles, California. Dr. Filler is one of the inventors of the neurogram procedure, a specialized MRI procedure developed to visualize nerves. Appellant traveled to California to see Dr. Filler who ordered a neurogram study and interpreted the results. According to Dr. Filler’s report, the study demonstrated an abnormality within her sciatic, nerve consistent with mechanical injury to the sciatic nerve. Dr. Filler also diagnosed appellant with Reflex Sympathetic Dystrophy (RSD), or Chronic Regional Pain Syndrome (CRPS), and with foot drop.

Dr. Filler performed surgery on appel- ' lant on August 26, 2011, during which he explored the area around the nerve and removed extensive scar tissue that had adhered to the nerve. Dr. Filler confirmed his earlier neurogram report of injury to appellant’s sciatic nerve consistent with a needle-injection injury. Dr. Filler also observed adhesions to appellant’s sciatic nerve along with fibrosis and scarring around the nerve. Appellant returned on June 28, 2013, for a second surgery performed by Dr: Filler to resection the piri-formis muscle of her left hip at the level of thé sciatic-nerve injury.

Appellant’s pain management for RSD or CRPS initially was conducted by Dr. Cathy Lou and subsequently by Dr. Jason Holt. Their treatment consisted of narcotic medications and nerve blocks, both of which failed to resolve appellant’s pain.

Appellant’s leg has continued to. deteriorate and atrophy. She remains in severe pain and has hot walked unassisted since the incident and now uses a wheelchair. At the time of her injury, appellant was twenty-two years old and in excellent health. She was a dancer, Land prior to her injury she taught dance to area elementary-school students. She has not worked since her injury.

Appellant filed her lawsuit against Nurse McCullough and her employers on November 21, 2012, alleging that Nurse McCullough negligently administered the injection into appellant’s sciatic nerve. A jury trial was held during the week of January 25 through 29, 2016. Regarding liability, a contested issue was the anatomic location where Nurse McCullough administered the intramuscular injection thought to have caused appellant’s alleged injury. Nurse McCullough testified that she gave the injection in the gluteus medi-us, the upper outer quadrant of the hip. Appellant, however, testified and marked on an anatomical chart that she had been given the injection in-her gluteus maximus, or inner buttock, which overlies the sciatic nerve. Both parties called nurses who testified as experts and agreed that the injection should be given in the gluteus medius. Similarly, they all agreed that an injection into the gluteus maximus would violate the relevant standard of care.

Appellees’ expert nurses, Susan Greenwood and Shannon Finley, likewise testified that in their opinion, appellee Nurse McCullough administered'the injection in appellant’s gluteus medius. Appellees’ expert neuroradiologist, Dr. Jay Tsuruda, testified that appellant did not suffer a sciatic-nerve injury from the needle because it is impossible for the 2.5-centime-ter needle, which was , used by Nurse McCullough, to make contact with the sciatic nerve. Appellant’s expert, Dr. Filler, testified to the contrary that in his opinion appellant sustained a sciatic-nerve injury from the injection needle.

IfiAfter the presentation of evidence, the attorneys and the trial court discussed jury instructions. Appellant’s counsel objected to the trial court’s giving AMI 1501, specifically the second paragraph that instructed the jury that in deciding whether Nurse McCullough applied the degree of skill and learning required of her, the jury may only consider the evidence presented by the nurses called as expert witnesses. Appellant’s counsel argued that this instruction essentially directed the jury to disregard or not consider appellant’s testimony as to the anatomical location that Nurse McCullough administered the shot. Appellant’s attorney offered an alternative instruction, a modified version of AMI 1501, which contained an alternate second paragraph that instructed the jury that only the nurses called as experts could offer an opinion on the ultimate question of whether Nurse McCullough was negligent. The trial court rejected that proffered instruction and gave the standard AMI 1501 instruction as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
2017 Ark. App. 613, 535 S.W.3d 643, 2017 Ark. App. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engleman-v-mccullough-arkctapp-2017.