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Hansen v. Universal Health Services of Nevada Inc.3/24/1999
Appellant Richard Hansen ("Hansen") suffered a severe and debilitating infection after respondent Dr. John M. Thalgott ("Dr. Thalgott") attached a steel plate to Hansen's spine, using bone screws (the "surgery"). The surgery was performed at Valley Hospital Medical Center ("Valley Hospital"), which was owned by respondent Universal Health Services of Nevada, Inc. ("UHS"). Hansen filed a medical malpractice action against Dr. Thalgott and UHS, alleging that they were negligent. A jury found in favor of Dr. Thalgott and UHS. Hansen appeals, arguing the district court abused its discretion in making evidentiary rulings which prevented him from substantiating his case.
FACTS
In March 1987, Hansen sustained a back injury. After a short period of physical therapy, Hansen was referred to Dr. Thalgott for treatment. Thereafter, Dr. Thalgott performed spinal plate fixation surgery on Hansen, attaching a steel plate to his spine using bone screws. The surgery was performed at Valley Hospital, which UHS owned at the time of Hansen's surgery.
Following the surgery, Hansen's incision became severely infected. According to UHS, Hansen had experienced several episodes of bowel incontinence that caused the introduction of fecal material into Hansen's wound, resulting in "gross contamination." Hansen's medical expert testified that Hansen's infection was either caused by Valley Hospital's failure to prevent this fecal contamination or by an unusually large dose of steroids that Dr. Thalgott prescribed for Hansen to reduce inflammation. In contrast, Dr. Thalgott and several other medical experts testified that Hansen's infection was not attributable to fecal contamination or the steroid treatment, but instead was caused by necrosis of the muscle tissue adjacent to the wound site.
Hansen was released from Valley Hospital, but his infection became so severe that he was readmitted, and was eventually transferred to the University Medical Center. At University Medical Center, Hansen underwent a series of operations on the musculature of his back. Eventually, the steel plate had to be surgically removed because Hansen's infection persisted. After removal of the steel plate, Hansen testified that he continued to suffer from debilitating pain and infection that greatly restricted his normal activities. Additionally, Hansen incurred medical expenses that exceeded $700,000.00.
DISCUSSION
Exclusion of Lack of FDA-Approval
Hansen's first allegation of reversible error is that the district court excluded evidence of the fact that the surgical procedure Dr. Thalgott performed was not approved by the FDA. Several evidentiary documents that Hansen sought to introduce referred to the fact that the surgery was not approved by the FDA, including Hansen's hospital chart, his consent form, and an article authored by Dr. Thalgott. The district court redacted any mention of the non-FDA approved status from these items of evidence, finding it was irrelevant and would confuse the jury. The district court also prohibited any witnesses at trial from referring to the non-FDA approved status of the surgery.
The district court's refusal to allow evidence of the fact that the surgical procedure performed had not been approved by the Federal Drug Administration was within its discretion. Although the implantation of the steel plate on the spine had not been specifically approved by the FDA, and the consent form Hansen signed included this information, Hansen concedes that the FDA does not prohibit implantation of the device in the human body. The FDA has approved implantation of the device in other locations of the body. In support of admission, Han
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