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Johnson v. Smythies9/22/2003
Gloria Johnson sued Dr. Christopher Smythies, a neurosurgeon, for malpractice and failure to obtain informed consent. She alleged that Dr. Smythies breached the standard of care because he concluded that the spinal cord damage she suffered was permanent and decided to delay surgery to remove the tumor in her spinal cord. Johnson also alleged that Dr. Smythies failed to inform her that immediate surgery was an option and immediate removal of the tumor could prevent permanent paralysis. At the conclusion of Johnson's case, the trial court dismissed her informed consent claim. The jury returned a verdict in favor of Dr. Smythies on the malpractice claim. Johnson appeals and argues that the trial court erred in dismissing the informed consent claim and abused its discretion in limiting the scope of closing argument, in giving an 'error of judgment' instruction to the jury and in answering the jury's inquiry about the legal instructions. She also argues that missing portions of the trial record prejudiced her right to appeal. We affirm.
Facts
Gloria Johnson suffered from chronic back pain for many years. Over time, it became progressively worse. Johnson was treated for her condition by several physicians including orthopedic surgeons Dr. Mark Remington and Dr. Kenneth Kay. In 1993, a laboratory report sent to Dr. Kay revealed an elevated protein level, 2 - to 8 times the normal level, in Johnson's cerebral spinal fluid. In the summer of 1997, Dr. Remington diagnosed her condition as spondlolisthesis, an abnormal alignment of the spine, and recommended spinal fusion surgery. Dr. Remington completed this six-hour surgery at 2:30 p.m. on June 23, 1997. Afterwards, while Johnson was in the post-anesthesia care unit, the hospital records indicate that she described continuous feelings of numbness.
At approximately 3:30 p.m., Johnson was moved to a recovery unit where nurses conducted neurovascular assessments at frequent intervals for the rest of the day. According to the chart notes, Johnson continued to experience unremitting numbness and tingling in her extremities for the remainder of the afternoon. That evening at 7:20 p.m., Johnson complained of severe neck pain and was given several doses of pain medication. At midnight, she had a fever of 104 degrees and complained of burning pain in her back and down her leg.
Early the next morning at 3:00 a.m. on June 24, the chart notes state that Johnson called the nurses because her fingers were numb and she was unable to move them. Her blood pressure had also dropped dramatically. An hour later, at 4:00 a.m., Johnson was still unable to move her fingers, or her legs or toes. At 4:30 a.m., the notes again state that Johnson could not move her fingers or lower extremities voluntarily. The hospital staff contacted Dr. Remington. Dr. Remington examined Johnson at about 5:45 a.m.
According to Dr. Remington's notes, Johnson had numbness and weakness in her hands, and no voluntary leg movement. He ordered a myelegram on both the lumbar and cervical regions of the spine to help diagnose the cause of Johnson's paralysis. A myelegram requires withdrawing spinal fluid, injecting dye and taking x-rays. Because Johnson was uncomfortable, the myelegram was only performed on the lower portion of the spine. The test was completed at about 7:30 a.m. The results did not explain Johnson's symptoms or paralysis.
Dr. Remington consulted a neurologist, Dr. Hugh McMahan. He examined Johnson at 8:50 a.m. According to Dr. McMahan, she could not move her legs or toes, was completely unable to grip with her hands, and had weakness in her biceps. She was also having difficulty breathing and her blood pressure was low. Dr
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