Robertson v. Hospital Corp. of America

653 So. 2d 1265, 1995 La. App. LEXIS 791, 1995 WL 168774
CourtLouisiana Court of Appeal
DecidedApril 5, 1995
DocketNo. 26694-CA
StatusPublished
Cited by1 cases

This text of 653 So. 2d 1265 (Robertson v. Hospital Corp. of America) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. Hospital Corp. of America, 653 So. 2d 1265, 1995 La. App. LEXIS 791, 1995 WL 168774 (La. Ct. App. 1995).

Opinion

| iMARVIN, Chief Justice.

In this medical malpractice action arising out of an ulnar nerve injury discovered shortly after abdominal surgery under a general anesthetic, the surgeon, the anesthesiologist and the hospital (vicariously liable through its circulating nurse) appeal a judgment based on a jury verdict awarding the patient plaintiff monetary damages and allocating fault between the respective defendants.

The issues, which are essentially factual, concern the standard of care owed the patient by each respective defendant, whether the respective standard was breached by that defendant to cause plaintiffs injury, and the jury’s allocation of fault: 70 percent to the anesthesiologist, 20 percent to the surgeon, and 10 percent to the hospital. The quantum of the judgment ($124,200) is not an issue in this appeal.

The trial court denied defendants’ motions for JNOV and a new trial. Finding no clear error, we affirm. Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991).

PREFACE

Defendants are the general surgeon, Dr. Daniel Sartor; the anesthesiologist, Dr. Philip R. Warren; and the hospital, as the employer of the “circulating nurse” in the operating room, one of three nurses who assisted with the surgery. The conduct of the other two nurses, the scrub nurse and the surgical assistant, is not at issue.

Defendants urged that the standard of care for preventing an ulnar nerve injury during surgery was followed in all respects and that the injury to the nerve in Robertson’s right arm could have occurred “innocently,” and without malpractice, from normal events such as tissue swelling in plaintiffs elbows while his arms were immobilized during surgery and IV fluids were being administered in his left arm. |2The doctors also suggested that plaintiffs injury may have occurred either in the recovery room or the hospital room after plaintiff was removed from the operating room.

By assessing some fault to each of the defendants, the jury obviously concluded the injury occurred in the operating room. No defendant disputes on appeal that the injury occurred in the operating room, but each reiterates that the evidence was insufficient to prove the respective standard of care was breached during the surgery.

FACTS

Plaintiff Edward Robertson’s abdominal surgery was performed on July 3, 1987, at the North Monroe Community Hospital to repair a hiatal hernia, or protrusion of part of the stomach into the esophagus. The hernia caused him to experience episodes of gas-troesophageal reflux, or movement of stomach contents up the esophagus and into his windpipe, which in turn caused bronchial spasms and severe breathing difficulties.

The surgical procedure, called “Nissen fun-doplication,” was performed on Robertson’s upper abdomen, in the area between the lower end of his breastbone and his navel. Dr. Sartor repositioned the portion of Robertson’s stomach that was protruding into his esophagus, successfully eliminating the reflux condition.

During the surgery, Robertson’s arms rested on arm boards extending outward from each side of the operating table. Dr. Sartor stood at Robertson’s right side, very near the right arm board, throughout the [1267]*1267surgery, which took about an hour and 20 minutes. Robertson was under general anesthesia, administered and monitored by Dr. Warren, for about two hours.

laSoon after being returned to his hospital room from the recovery room Robertson noticed some numbness and tingling in the outer portion of his right hand, which he did not have before the surgery. He immediately reported this to several members of his family, who obtained additional pillows from a floor nurse to place under Robertson’s right arm.

Several days later, after the effects of the anesthesia had fully worn off, Robertson still had numbness in the fourth and fifth fingers of his right hand. According to the medical records, he reported this to Dr. Sartor on July 8,1987, five days after the surgery. Dr. Sartor told Robertson that this was not uncommon after surgery and would likely clear up on its own. Dr. Sartor told Robertson to avoid putting pressure on his elbows and instructed the floor nurses to periodically monitor Robertson’s position in the hospital bed.

Robertson was discharged from the hospital on July 10,1987. He continued to experience numbness in his right hand and a gradual weakening of the muscles in that hand. He consulted Dr. Joseph Wapenski, a Monroe neurologist, in September 1987, reporting that his symptoms appeared shortly after the abdominal operation.

Dr. Wapenski ordered nerve conduction studies which confirmed an ulnar nerve injury but did not show precisely where the nerve was being compressed. Blood and other tests by Dr. Wapenski ruled out diabetes or other possible medical causes of an ulnar nerve injury. Robertson’s ulnar nerve condition did not improve with physical therapy.

In May 1988, Robertson saw Dr. Gerald Randle, a neurologist in Jackson, MS, whose tests showed that the right ulnar nerve was compressed at the elbow. Robertson thereafter consulted Dr. Lynn Stringer, a Jackson neurosurgeon, who 14performed corrective surgery in June 1988, almost a year after the abdominal surgery.

Dr. Stringer removed some sear tissue from the ulnar nerve in Robertson’s right elbow and transposed the nerve to a more favorable location, partially restoring some of the nerve function, but leaving Robertson with some permanent numbness and loss of strength in his right arm and hand.

Dr. Stringer did not notice any anatomical abnormalities in the area of Robertson’s elbow that might have made him particularly vulnerable to an ulnar nerve injury from the normal events of the abdominal surgery, as defendants urged. Defendants’ contention that Robertson’s work as an electrician may have predisposed him to an ulnar nerve injury during the surgery, without any malpractice having occurred, will be discussed infra.

The presence or absence of a predisposing factor does not heighten or enervate the applicable standard of care for protecting a patient’s arms from ulnar nerve injury during surgery, but relates solely to the issue whether Robertson’s injury occurred even if the standard of care was met in the operating room.

EXPERT TESTIMONY

Dr. Stringer, the neurosurgeon, was one of Robertson’s experts. Robertson’s neurologists, Drs. Wapenski and Randle, testified for the defendants, along with Dr. David Kline, a New Orleans neurosurgeon. Robertson’s other experts were two anesthesiologists: Dr. Mervyn Jeffries of Washington, D.C., and Dr. Brian McAlary of Baltimore, MD. The two defendant doctors, Sartor and Warren, gave both fact and expert testimony.

The medical witnesses agreed that any patient who undergoes abdominal surgery under general anesthesia must have his or her arms positioned and padded in | sa certain way to prevent injury to the nerves in the arm, including the ulnar nerve, which runs from the neck through the arm and into the outer portion of the hand, supplying feeling and muscle control to the fifth (little) and part of the fourth (ring) fingers of hand.

The ulnar nerve generally runs well below the surface of the skin in the arm. At the elbow, however, the nerve passes through a narrow channel or groove where the bones of [1268]*1268the upper and lower arms meet and is near the surface of the skin.

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Bluebook (online)
653 So. 2d 1265, 1995 La. App. LEXIS 791, 1995 WL 168774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-hospital-corp-of-america-lactapp-1995.