Sallee v. Shockley

829 S.W.2d 519, 1992 Mo. App. LEXIS 434, 1992 WL 42290
CourtMissouri Court of Appeals
DecidedMarch 10, 1992
DocketNo. WD 44014
StatusPublished

This text of 829 S.W.2d 519 (Sallee v. Shockley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sallee v. Shockley, 829 S.W.2d 519, 1992 Mo. App. LEXIS 434, 1992 WL 42290 (Mo. Ct. App. 1992).

Opinion

BRECKENRIDGE, Judge.

Gary and Debbie Sallee appeal from a jury verdict rendered against them and in favor of Dr. John E. Shockley and Lee’s Summit Clinic, Inc. in an action for medical negligence. Gary Sallee alleged that Dr. Shockley was negligent in releasing him after surgery without determining whether the anesthetic or the surgery would cause him problems. Debbie Sallee’s claim is derivative, claiming damages for loss of consortium. The Sallees’ sole point on appeal alleges that the trial court erred in failing to instruct the jury to disregard misstatements of law made by defense counsel during closing argument because such statements are presumptively prejudicial and the trial court had an absolute duty to purge the error. The judgment is affirmed.

On September 11,1987, Gary Sallee went to see Dr. Shockley at the Lee’s Summit Clinic for the examination and treatment of a hemorrhoid problem. Although Mr. Sal-lee had been a patient at the clinic on previous occasions and had undergone three separate minor surgical procedures, he had never seen Dr. Shockley before. Dr. Shockley examined Mr. Sallee and diagnosed an “external thrombosed hemorrhoid.”

Dr. Shockley told Mr. Sallee that he felt that the problem needed to be treated and that the usual treatment for such a problem was to lance and drain the thrombosed hemorrhoid under a local anesthetic. After inquiring into any known drug allergies that Mr. Sallee might have had, Dr. Shockley asked the nurse to prepare a tray. The tray contained a scalpel and approximately 1½ cc’s of 1% Xylocaine, a local anesthetic, in a 3 cc syringe. Although Dr. Shockley typically used only about 1 cc of Xylocaine while performing the procedure, he ordinarily had the nurse draw up 1½ cc’s, an amount adequate for the procedure.

Dr. Shockley injected Mr. Sallee’s hemorrhoid and the surrounding area with the [521]*521anesthetic, testifying that he made from two to four injections, although Mr. Sallee testified that he felt seven or eight sticks. After the area was deadened, Dr. Shockley made an incision in the thrombosed hemorrhoid and drained it. Dr. Shockley then packed the area with gauze and told Mr. Sallee to pull up his pants. After the procedure, Dr. Shockley gave Mr. Sallee his prescriptions and some general instructions on the care of the treated area. Dr. Shockley testified that Mr. Sallee was alert and well orientated. Mr. Sallee testified that he did not feel faint or light-headed during the procedure or after he left the office.

After leaving the clinic, Mr. Sallee sat for a moment in his truck. He noticed that his anal area was still numb but felt the gauze pads Dr. Shockley used to pack the area after the procedure. Mr. Sallee left the parking lot in his truck and drove off. After he had turned on to 50 Highway, he “got up to speed” and engaged his truck’s cruise control. While driving along, Mr. Sallee suddenly began feeling tingly and sweaty as if he might pass out. This feeling continued only a few seconds and is the last thing Mr. Sallee remembers before he lost consciousness. The pickup truck he was driving went off of 50 Highway, crossing the median and entrance ramp before running into the side of a house. As a result of the crash, Mr.' Sallee was diagnosed as having C6-C7 quadriplegia.

Mr. and Mrs. Sallee filed suit against Dr. Shockley and Lee’s Summit Clinic, Inc. on February 11, 1988. The Sallees alleged medical negligence based upon the theory that Dr. Shockley released Mr. Sallee following the surgery without making a determination of whether he would have problems from the surgery or from the anesthetic. To support this theory, Mr. Sallee presented two expert witnesses on the issue of liability. Dr. W.C. Wiederholt, a neurologist and professor in the neuroscience department at the University of California at San Diego, testified that he believed that Mr. Sallee experienced a vasova-gal syncope, a medical term for fainting caused by an insufficient blood supply to the brain. There are many factors that may cause a vasovagal syncope, among them, the amount of anesthetic used, pain, and relief from pain. Dr. Wiederholt testified that the majority of faints occur within the first 20 to 30 minutes following surgery and that it violates the appropriate standard of care for a doctor not to consider that a patient might experience vasova-gal syncope after surgery.

Dr. William E. Whitley, an osteopathic physician with a family practice, testified that there were indications that Dr. Shockley used more anesthetic than that Dr. Shockley claimed was used. He also testified that Mr. Sallee’s description of his condition was consistent with a rectal mu-cosal prolapse and not a single thrombosed hemorrhoid.

Dr. Shockley’s expert witnesses disputed the testimony given by Dr. Wiederholt and Dr. Whitley. Dr. Clark Watts, a neurosurgeon who is Chief of the Division of Neurosurgery at the University of Missouri School of Medicine in Columbia and Chief of the Neurosurgical Service at University Hospital, testified that Mr. Sallee’s faint was caused by a vasovagal reaction and that under the circumstances, this loss of consciousness was a very rare occurrence and totally unpredictable. Dr. John Her-yer, a colon and rectal surgeon, testified as to the differences between a rectal mucosal prolapse and an external thrombosed hemorrhoid. He opined that Dr. Shockley’s care and treatment of Mr. Sallee was consistent with the standard of care expected of physicians providing such treatment.

The verdict-directing instruction, No. 8,1 instructed the jury that:

Your verdict must be for Plaintiff, Gary Sallee, against Defendants, John Shockley and Lee’s Summit Clinic, if you believe:
First, Defendant, Shockley, released Plaintiff, Gary Sallee, following the surgery without making a determina[522]*522tion as to whether or not said Plaintiff would have problems from the anesthetic or the surgery, and
Second, Defendant, Shockley, was thereby negligent, and
Third, such negligence directly caused or contributed to cause damage to Plaintiff, Gary Sallee.

During the closing arguments, defense counsel made the following statements regarding the verdict-director:

So there are three essential findings that you must make in order to return a verdict against Dr. Shockley.
The first is that Dr. Shockley released the plaintiff Gary Sallee following the surgery without making a determination as to whether or not plaintiff would have problems from the anesthetic or the surgery. What’s interesting about the Court’s instructions to you are those items that are no longer an issue in this case, items that have been talked about all week long but that you no longer need to be concerned with. The Court does not tell you that if you don’t think that Dr. Shockley kept the plaintiff in the office for 20 minutes that you should return a verdict against him. Nothing in these instructions tells you to return a verdict against Dr. Shockley if you think he failed to keep him 20 minutes. That has not been submitted to you, that is not a claim in this lawsuit now.
The Court’s instructions also say nothing about whether you should determine whether Mr. Sallee was given an abnormal or an excessive amount of local anesthetic. That is not a claim that’s [sic] being submitted to you. You do not need to resolve that or decide that in order to reach your verdict in this case.

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Bluebook (online)
829 S.W.2d 519, 1992 Mo. App. LEXIS 434, 1992 WL 42290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sallee-v-shockley-moctapp-1992.