Michelsen v. Stanley

893 S.W.2d 941, 1993 Tenn. App. LEXIS 765
CourtCourt of Appeals of Tennessee
DecidedDecember 13, 1993
StatusPublished
Cited by5 cases

This text of 893 S.W.2d 941 (Michelsen v. Stanley) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michelsen v. Stanley, 893 S.W.2d 941, 1993 Tenn. App. LEXIS 765 (Tenn. Ct. App. 1993).

Opinion

HIGHERS, Judge.

This is a medical malpractice ease brought by plaintiffs, Robert J. Michelson, and his wife, Naoma Jean Michelson, against defendants, Drs. Thomas V. Stanley and J. Hays Brantley, for their failure to diagnose and treat an infectious disease which destroyed plaintiff Robert J. Michelson’s hip joints. The trial court entered a jury verdict in favor of defendants. After the trial court denied their motion for a new trial, plaintiffs appealed. The issues presented for our review are: (1) Whether the trial judge aptly performed his function as thirteenth juror approving the jury verdict. (2) Whether the court erred in refusing to grant a new trial because the jury considered extraneous evidence and/or because one juror was coerced into going along with a verdict for the defendant.

Plaintiff is presently 78 years old. On January 28,1987, plaintiff underwent a surgical procedure to drain a perirectal abscess. As would later become evident, plaintiff contracted a bacterial infection during this procedure which eventually destroyed his hip joints. The evidence at trial focused on whether defendants’ failure to diagnose and treat the infection was a deviation from the applicable standard of care. A brief account [942]*942of the facts is as follows. Several days after the January 28th surgery, plaintiff began experiencing pain in his hips and abdomen. He was admitted to the hospital on February 5, 1987, where he remained until his discharge on April 18, 1987. Plaintiff underwent exploratory surgery for an abdominal aortic aneurysm which was performed by Dr. Alim Khandekar, a cardiovascular surgeon. During this surgery, Dr. Khandekar discovered a closed-loop bowel obstruction which required emergency repair, and he called in Dr. Thomas Stanley, a general surgeon, to complete the surgery. Thereafter, Dr. Stanley was in charge of plaintiffs medical treatment. Plaintiff began to run a fever, and he continued to complain of pain in his hip and groin area. Numerous tests, including blood and urine tests, MRIs, X-rays, cat scans and a bone scan were performed on plaintiff in an effort to determine the cause of his pain. Dr. Stanley consulted Dr. Hays Brantley, an internal medicine specialist, to assist in antibiotic treatment and the coordination of plaintiffs medical care. Dr. Stanley consulted an orthopedic surgeon, Dr. Mike Lynch, to determine whether an infection was present in plaintiffs hip joints. Drs. Stanley and Brantley determined that there was some infection or abscess in plaintiffs right and left hip area and inflammatory fluid was drained during the latter part of March. The drainage process resulted in marked improvement. Dr. Lynch reported that there was no infection in plaintiffs hip joints but that plaintiffs pain was due to severe arthritis in his hip joints. Drs. Stanley and Brantley relied on Dr. Lynch’s opinion. Although an April 12th cat scan revealed some fluid reaccumulation in the hip area, Dr. Stanley determined that plaintiffs condition had improved such that he could be discharged on appropriate antibiotic therapy and home care treatment. Plaintiffs discharge was originally set for April 17, but plaintiff was not discharged until April 18 because of an increase in his temperature and continued pain in his groin and hip area. Drs. Brantley and Lynch concurred in the discharge.

Mrs. Miehelson testified that plaintiff was in excruciating pain when discharged on April 18th. On April 22nd, Mrs. Miehelson phoned Dr. Stanley because fluid was draining out of one of plaintiffs incisions where catheters had been placed to drain the infection or inflammatory fluid and, as a result, Dr. Stanley treated plaintiff in the emergency room on April 24th. Plaintiff saw Dr. Stanley April 28th for a regular office visit and nothing new about plaintiffs condition was determined. Plaintiff continued to suffer excruciating pain in his hip area. Plaintiff began draining a pus-like material at a place near his navel and, as a result, Dr. Stanley saw him in the emergency room on May 5th and a cat scan was performed. No new diagnosis was made. Plaintiffs returned to Dr. Stanley’s office on May 13th, but were apparently not given any new diagnosis or treatment and plaintiff was not hospitalized. On May 21st, plaintiff was seen by Dr. Joseph Boals, an orthopedic surgeon, concerning his hip pain. Dr. Boals concluded that the cause of plaintiffs pain was arthritis in the hip joints and not an infection. Thereafter, Mrs. Miehelson phoned Dr. Stanley on May 28th because plaintiff again was draining material from the site near his navel but Dr. Stanley did not instruct plaintiffs to return for treatment. Mrs. Miehelson testified that plaintiffs condition was deteriorating and that she took plaintiff to see Dr. Stanley on June 8th. A cat scan was taken on June 10th. Plaintiff was in such pain that she called plaintiffs family physician, Dr. Ed Scott, who admitted plaintiff to the hospital on the evening of June 10th. The June 10th cat scan revealed a marked destruction of plaintiffs hips and hip joints. This was the first time that a cat scan had revealed bone destruction. Dr. Scott and, an orthopedic surgeon, Dr. Owen B. Tabor, who was Dr. Boals’ partner, decided to consult with an infectious disease specialist, Dr. Karen Carroll, who would assist in determining the appropriate antibiotic treatment for plaintiff. Later in June, plaintiff underwent a girtle-stone operation which involved hip joint replacement. Plaintiff had a stormy post-operative period and he remained in the hospital for 59 days after surgery. Mrs. Miehelson testified that plaintiff is presently primarily confined to a wheelchair.

[943]*943Plaintiffs filed a malpractice action against defendants. Dr. Lynch was not sued because plaintiffs’ first attorney failed to name him as a defendant, and by the time plaintiffs’ present attorney took over the case, the statute of limitations had run against Dr. Lynch. At trial, Dr. Carroll testified on behalf of plaintiffs as both a treating physician and a medical expert. Dr. Carroll testified that Dr. Stanley deviated from the applicable standard of professional practice by discharging plaintiff on April 18th because the infection in plaintiffs hips had not been cleared at that time and was continuing to develop. Her conclusion was based on plaintiffs fever, complaints of pain and the April 14th cat scan which showed reaecumulation of inflammatory fluid adjacent to the left hip and some joint effusion. She was of the opinion that further studies should have been performed to evaluate just how quickly the abscesses were reaccumulating. She testified that Dr. Brantley deviated from the standard of professional practice in concurring with the discharge. She also testified that the May 5th cat scan revealed that the infection had spread into plaintiffs hip joints, but not yet destroyed any bone. She said that if appropriate action had been taken at that time that plaintiffs hip bones could have been saved. Defendants testified on then-own behalf. Additionally, three medical experts testified on behalf of defendants, Dr. Charles W. Munn, an internal medicine specialist, Dr. Sidney Birdsong, a surgeon, and Dr. Micheál Gelfand, an infectious disease specialist. There was also testimony by deposition from Dr. Tabor and Dr. Lynch. Defendants and Drs. Munn, Birdsong, and Gel-fand testified that the medical treatment provided by defendants was at all times in conformity with the recognized standard of acceptable professional practice as was the discharge and follow-up care that he received. They also testified that it was appropriate for Drs. Stanley and Brantley to rely upon Dr. Lynch’s opinion that there was no infection in plaintiffs hip joints. Dr.

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893 S.W.2d 941, 1993 Tenn. App. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michelsen-v-stanley-tennctapp-1993.