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Butler v. Naylor9/10/1999
This opinion is subject to revision before final publication in the Pacific Reporter.
FILED
Third District, Salt Lake County The Honorable J. Dennis Frederick
INTRODUCTION
Plaintiff Nina E. Butler brought this action against defendant Robert G. Naylor, M.D., alleging that he negligently performed a sphincterotomy on her. Dr. Naylor denied any negligence, and the jury returned a verdict in his favor. Butler moved for a new trial contending the trial court erred by (1) admitting an excerpt from the Zollinger medical text into evidence as an exhibit and allowing the jury to take it into the jury room during deliberations, and (2) giving jury instruction regarding alternative treatment methods. Butler's motion was denied, and she now appeals.
BACKGROUND
In August 1992, Butler was experiencing severe diarrhea. She discussed the problem with Dr. Charles Arena who referred her to Dr. Dennis Avner, a gastroenterologist. In September 1992, Dr. Avner performed a colonoscopy on Butler and subsequently diagnosed her with inflammatory bowel disease. Dr. Avner then referred Butler to the defendant, Dr. Naylor, a general surgeon.
On October 15, 1992, Dr. Naylor diagnosed Butler with a large posterior anal ulcer and a tight anal sphincter. He recommended both the excision of the anal ulcer and a sphincterotomy to release the tight anal sphincter. One week later, he performed the recommended surgery on Butler. In the four months following the surgery, Butler had at least four follow-up visits with Dr. Naylor. She also had at least five meetings with Dr. Arena within a year of her surgery. Butler did not mention any incontinence or other bowel problems during these visits with either physician.
Butler's first documented complaints of post-surgery incontinence came during visits with Dr. Kathleen Boynton in November and December of 1993 and January of 1994. Upon examination, Dr. Boynton determined that Butler's rectal tone was normal, but was unable to find the cause of her incontinence. In the months following her examination by Dr. Boynton, Butler met with a number of physicians and surgeons, none of whom linked her incontinence with the surgery performed by Dr. Naylor.
Butler was eventually examined by doctors at the Mayo Clinic in Scottsdale, Arizona. The doctors there determined that the cause of her incontinence may have been a shorter than normal anal canal. To remedy the condition, Butler underwent an anoplasty, a twelve-minute operation which lengthens the anal canal. The doctors performing the operation found nothing indicating that the surgery Dr. Naylor performed caused Butler's incontinence, and the anoplasty's purpose was not to remedy anything that Dr. Naylor had done. Following the anoplasty, Butler noticed some limited improvement, but experienced continued incontinence accompanied by emotional trauma resulting from the inability to control her bowels.
On May 2, 1995, Butler filed this action against Dr. Naylor alleging medical malpractice in connection with the surgery to remove her anal ulcer and release the tight sphincter. As part of his defense, Dr. Naylor testified that the surgery on Butler was performed in a manner consistent with the procedure outlined in a general surgical text authored by Robert M. Zollinger and Robert M. Zollinger, Jr. ("Zollinger text"). That procedure involved making a one-by-three millimeter incision in the scarred subcutaneous portion of the external sphincter in order to relax a band of scar tissue that circled the anus. Dr. Naylor relied on the text to prove that he performed the sphincterotomy on Butler according to standard surgical
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