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Allen v. Tong2/10/2003
Plaintiff Phillip Allen, also known as Phillip Lindberg, appeals from an adverse jury verdict on his medical malpractice claims against Defendant Dr. Rolando M. Tong. Plaintiff asserts: (1) the district court erred by refusing Plaintiff's tendered UJI 13-302B NMRA 2003 and by submitting a 13-302B instruction that was prejudicially confusing and not in conformity with UJI requirements, (2) opposing counsel made an improper and highly prejudicial comment during closing argument warranting reversal, and (3) the district court abused its discretion in denying Plaintiff's motion for a new trial which was based on these two asserted trial mishaps. We affirm.
BACKGROUND
On September 29, 1994, Bobbi Lindberg (Lindberg) took her then fifteen-year-old son, Phillip (Plaintiff) , to the emergency room at Rehobeth McKinley Hospital, because Plaintiff had a swollen, tender testicle, and he was in pain and vomiting. An emergency room physician, Dr. Beamsley, took Plaintiff's history, examined him, and took a Doppler reading of Plaintiff's pulse in both testicles. Dr. Beamsley called Defendant, who was the on-call surgeon, and described Plaintiff's condition. Dr. Beamsley told Defendant that he felt Plaintiff had testicular torsion and also stated that the condition was a surgical emergency.
Defendant received this call from Dr. Beamsley at about 6:40 a.m. After the call, Defendant took a shower, shaved, got dressed, and then went to the hospital. Defendant thought he arrived at the hospital before 8 a.m. Plaintiff contends Defendant did not arrive until about 9:20 a.m. It would usually take Defendant anywhere from two to five minutes to drive from his home to the hospital. When Defendant arrived at the hospital, he reviewed Plaintiff's chart, spoke with Plaintiff, collected medical history from him, and proceeded with a physical examination and a Doppler examination to check for a pulse in each of Plaintiff's testicles. Through differential diagnosis, Defendant believed that the diagnosis was fifty-fifty between testicular torsion and epididymitis and he ordered a scan. Defendant agreed that a safe time to wait to operate and explore was about six hours from the onset of symptoms. The physician who administered the scan, Dr. Biunno, diagnosed epididymitis.
Dr. Tong did not see Plaintiff again on September 29 until 5 p.m. Plaintiff had been on pain medication during the day and was in a lot less pain when Defendant saw him at 5 p.m. Defendant performed another Doppler exam and could not hear a pulse in the left testicle. Lindberg testified that Defendant told her he was not going to take Plaintiff to surgery because Plaintiff had an infection, epididymitis. Defendant kept Plaintiff in the hospital and on intravenous antibiotics for the night.
In the morning of September 30, Plaintiff had no pain and was hungry. His pain medication was discontinued and he ate some breakfast and most of his lunch. Defendant examined Plaintiff between 11 a.m. and noon that day. Plaintiff had no pain and wanted to go home. During his examination of Plaintiff, Defendant found that the left testicle was larger and he could not hear a pulse on the Doppler. Defendant attributed these circumstances to the infection. He discharged Plaintiff, having determined that Plaintiff was no longer in severe pain and was able to hold down a meal.
Lindberg took Plaintiff back to the hospital the night of September 30 because Plaintiff's testicle had become greatly enlarged and discolored. The next morning, another surgeon, Dr. Voss, examined Plaintiff, conducted surgery, and found testicular torsion. Dr. Voss determined that it was too late to save the testicle and remove
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