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Wilborn v. Blake3/9/2000
Valerie Blake brought this medical malpractice action against Dr. Wesley Wilborn. The jury returned a verdict awarding Blake $133,750 in damages. Wilborn appeals the final judgment. The primary issue is whether the testimony of Blake's expert witness was sufficient to support a finding of professional negligence. We hold that it was and affirm.
On Thursday October 29, 1992, Blake was suffering from pain in her right index finger and sought treatment from Wilborn, a board-certified dermatologist. A week earlier Wilborn had attended a seminar where he had been presented with a case involving glomerulus tumors of the fingertips. Although glomerulus tumors are very rare, Wilborn diagnosed Blake as having such a tumor based on a physical examination that took about five minutes. On Monday November 2, Wilborn performed an in-office surgical procedure to remove Blake's fingernail and excise the tumor.
Blake returned to Wilborn's office on Tuesday November 3 because her finger would not stop bleeding. At that time, Wilborn applied a pressure dressing and ordered Blake to return to his office on Friday November 6. Instead she came to the office on Thursday November 5, complaining of swelling, pain, discoloration, and compromised circulation in the finger. Wilborn then diagnosed Blake with a post-operative infection and prescribed the antibiotic Keflex.
Wilborn was absent from his office from November 6 through 13. On November 13, Blake returned to his office with the same basic complaints she made on November 5. He then referred her to a vascular surgeon. Two-thirds of her finger had to be amputated because of gangrene. A pathology report showed that Blake in fact had a hemangioma tumor.
Dr. Jacob Rispler, a board-certified dermatologist, was Blake's expert witness. His testimony was presented to the jury through the reading of his deposition at trial. Based on his review of Blake's medical chart and other matters of record, Rispler testified that it was unclear whether her finger showed signs of infection when she first appeared at Wilborn's office on October 29. According to Rispler, "an infection would have to be ruled out before [surgery] was anticipated." When asked to identify diagnostic tools which could have been used to determine whether a tumor was present, Rispler responded that Wilborn could have ordered an x-ray or a culture of the finger or could have performed blood work. Rispler testified that at least one of those diagnostic tests "should have been done" before surgery was undertaken, and that an x-ray probably would have confirmed the absence of a glomerulus tumor. Rispler opined that, insofar as surgical removal of the tumor was concerned, "the standard of care" required Wilborn to refer Blake to a hand or vascular surgeon or to perform the surgery in a sterile, out-patient operating room rather than in his office. Rispler noted that different surgical techniques are used for removal of glomerulus tumors and hemangiomas. When asked to specify the differences, he acknowledged that it was outside of his expertise as he refers all surgical patients to experienced surgeons.
Rispler further testified that when Blake returned to Wilborn's office on November 3 with continued bleeding, "the standard of care would have been to immediately call either a vascular and/or hand surgeon, even a general surgeon and have somebody - expert in this area help you with the postoperative course." According to Rispler, Wilborn should have prescribed an antibiotic on November 3 and should not have applied a pressure dressing for more than a few hours because it can compromise circulation. Rispler also condemned Wilborn's prescription of Keflex on November 5, because
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