Thomas v. Sharon

427 S.W.3d 756, 2013 Ark. App. 305, 2013 WL 1904768, 2013 Ark. App. LEXIS 327
CourtCourt of Appeals of Arkansas
DecidedMay 8, 2013
DocketNo. CA 12-231
StatusPublished

This text of 427 S.W.3d 756 (Thomas v. Sharon) 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
Thomas v. Sharon, 427 S.W.3d 756, 2013 Ark. App. 305, 2013 WL 1904768, 2013 Ark. App. LEXIS 327 (Ark. Ct. App. 2013).

Opinions

BILL H. WALMSLEY, Judge.

| Appellant Sally Thomas appeals from the Carroll County Circuit Court’s denial of her motion for new trial following a jury’s verdict finding that she sustained no damages that were proximately caused by the stipulated negligence of appellees, Na-dav Sharon, M.D., and Ozarks Regions Health Systems, Inc. d/b/a St. John’s Hospital — Berryville. Thomas argues on appeal that the presence of a retained surgical clamp in her abdomen unquestionably resulted in damages. We affirm.

Thomas suffered from chronic diverticulitis. On September 23, 2005, Dr. Sharon removed the sigmoid portion of Thomas’s colon and performed an anastomosis. When Thomas subsequently had a bowel movement, she described that it felt “like my whole insides had ripped apart.” A CT scan confirmed that there was a leak at the reconnection site, along with a large pelvic abscess. Thomas underwent a second surgery by Dr. Sharon on October 123, 2005, to repair the breakdown of the anas-tomosis, during which Dr. Sharon removed a necrotic section of her colon and performed a colostomy. Thomas’s health, however, rapidly declined following the second surgery, and on October 5, 2005, Dr. Sharon, because he was concerned that Thomas was developing respiratory-distress syndrome, ordered that she be transferred to St. John’s Hospital in Springfield, Missouri. In Springfield, Thomas exhibited symptoms of infection, and a CT scan was obtained on October 8, 2005. The CT scan revealed a six-inch Kelly clamp retained inside Thomas’s abdomen. Dr. Cameron Hodges reopened Thomas’s incision to remove the clamp and discovered infection that required debridement. Thomas was on a ventilator for one week and went home with a wound vac. Thereafter, Dr. Hodges performed another surgery to take down the colostomy. Over the next several years, Thomas experienced complications, including hernias and additional infections. Thomas underwent a total of eight surgeries due to abdominal-wall infections resulting from the pelvic abscess that formed after the first surgery.

Thomas sued both Dr. Sharon and St. John’s Hospital in Berryville in connection with the second surgery performed on October 3, 2005.1 Prior to trial, appellees stipulated that their failure to remove the surgical clamp constituted negligence. The amended stipulation provided in part

[t]hat although the defendants deny that the presence of the retained surgical clamp proximately caused any injuries or damages to Sally Thomas, the defendants stipulate that Dr. Sharon and St. John’s Hospital — Berryville are each responsible and liable for whatever injuries and damages, if any, the jury finds were proximately caused by the | ¡¡presence of the retained surgical clamp from the surgery performed on October 3, 2005.

Thomas’s expert, Dr. Samuel Feinberg, a general surgeon, acknowledged that Dr. Hodges reported that he specifically checked to ensure there were no injuries resulting from the retained clamp and that Dr. Hodges found there were no such injuries. Dr. Feinberg also agreed that the retained surgical clamp did not cause the anastomotic leak, the infections or pelvic abscess, any apparent injury to Thomas’s organs, tissue, or vessels, the ischemia or necrotic dead tissue, the need to put her on a ventilator, the need for wound-vac care, and did not cause any delay in wound healing. Dr. Feinberg opined that the marked inflammatory reaction from the breakdown of the anastomosis performed on September 23, 2005, led to Thomas’s chronic pain and increased risk of subsequent hernia formation. Dr. Feinberg further testified that, more likely than not, Thomas’s infections were the chief source of her ventral-incision hernias. Although Dr. Feinberg opined that the retained clamp resulted in excruciating pain for Thomas, he acknowledged that having two colon resections within ten days of each other and the development of a pelvic abscess, peritonitis, and necrotic muscle likewise would be painful. According to Dr. Feinberg, the chief damage suffered by Thomas was the required surgery to remove the retained clamp, but he admitted that Thomas needed wound care and de-bridement in connection with the third surgery. Dr. Feinberg testified that Thomas additionally sustained damages in that she was transferred to Springfield and had a CT scan that “confirmed the diagnosis that the clamp was in place.”

According to defense expert Dr. Ray Stahl, a general surgeon, Thomas had the third surgery to remove the retained clamp, but she would have needed that third surgery anyway |4to clear the infection that was present. Dr. Stahl referred to it as “medical serendipity” that the removal of the clamp led to the early detection of infection that required treatment. Also, Dr. Stahl testified that doctors in Springfield obtained a CT scan due to suspected infection, not the presence of a retained clamp. Dr. Diane Rhoden, a faculty surgeon at UAMS, testified that, while she did not know whether a steel foreign instrument left in the abdomen would cause any increased pain, she would expect a patient who had undergone two surgeries in a ten-day period and was diagnosed with peritonitis to suffer pain. Dr. William Flake, who assisted Dr. Sharon with the first and second surgeries, testified that the retained clamp “could have” rubbed against various anatomical structures and produced pain but that he did not believe the clamp caused any harm to Thomas. Likewise, Dr. Sharon testified that he did not believe the clamp caused any measurable pain or discomfort because it had been there for four days before being discovered, yet there was no local reaction, such as inflammation.

Thomas testified that she was in some pain following the first surgery but that the pain was “one hundred times worse” after the second surgery and more painful than childbirth. A medical-expenses summary was introduced into evidence, and Thomas testified that she believed that all of the $392,000 she incurred in medical expenses was the result of appellees’ negligence.

The jury was instructed that Thomas had the burden of proving her case by a preponderance of the evidence. The instruction read, in part, that “[i]f, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of [ ¡¡proving it.” With respect to the retained clamp, the jury was instructed that appellees were liable for any damages sustained by Thomas that were proximately caused by their negligence. “Proximate cause” was defined as “a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred. This does not mean that the law recognizes only one proximate cause of damagé. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.” The trial court agreed to submit interrogatories prepared by Thomas’s counsel. The jury was asked whether it found by a preponderance of the evidence that negligence on the part of each appellee was a proximate cause of any of Thomas’s injuries, to which the jury answered “no.”

Thomas moved for a new trial pursuant to Arkansas Rule of Civil Procedure 59(a)(6), which provides that a new trial may be granted where the verdict or decision is clearly contrary to the preponderance of the evidence or contrary to the law.2 The trial court denied the motion, and Thomas filed a timely notice of appeal.

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Bluebook (online)
427 S.W.3d 756, 2013 Ark. App. 305, 2013 WL 1904768, 2013 Ark. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-sharon-arkctapp-2013.