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Wisher v. Higgs3/2/1993
Rehearing Denied April 26, 1993.
, 50 St.Rep. 191
Submitted September 30, 1992.
The plaintiff, Patricia Wisher, appeals from a jury verdict rendered in a medical malpractice action tried in the Eleventh Judicial District Court, Flathead County. The defendant, Dr. Wilson Higgs, stipulated prior to trial that the preponderance of medical testimony established that Ms. Wisher incurred an injury during a surgery that he performed on November 14, 1979. Specifically, Ms. Wisher sustained a dehiscence, or hole, in her left inner ear following a left facial nerve decompression procedure. Dr. Higgs also stipulated that the preponderance of medical testimony established that the surgical result obtained was below the standard of care. The District Court ruled that this was negligence as a matter of law. Dr. Higgs presented a statute of limitations defense to the action.
The sole issue submitted to the jury was whether the tolling provisions of ยง 27-2-205, MCA, were met. Through the use of a special verdict form, the jury found by a preponderance of the evidence that (1) prior to November 1, 1981, through the use of reasonable diligence, Ms. Wisher should have discovered her injury, and that her injury may have been caused by the surgery; and (2) prior to November 1, 1981, Dr. Higgs's conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that her injury may have been caused by the surgery.
We affirm in part, and reverse and remand in part for a new trial on the issue of damages.
We restate the dispositive issues as follows:
1. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury's finding that Ms. Wisher, through the exercise of reasonable diligence, should have discovered before November 1, 1981, (i) her injury, and (ii) that her injury may have been caused by the surgery.
2. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury's finding that Dr. Higgs's conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1, 1981.
On September 3, 1979, Patricia Wisher presented herself to the emergency room at Kalispell Regional Hospital complaining of a headache and paralysis on the left side of her face. She was diagnosed with Bell's palsy, a disease process affecting the seventh cranial nerve. Ms. Wisher initially sought follow-up care from a Kalispell neurologist named Dr. Schimpff on September 5, 1979. After ruling out cranial pathology, Dr. Schimpff recommended that she follow-up with Dr. Higgs, a Kalispell otolaryngologist.
Ms. Wisher was initially examined by Dr. Higgs on September 6, 1979. When her condition failed to improve with the use of steroids and the passage of time, Dr. Higgs recommended that Ms. Wisher undergo left facial nerve decompression surgery. This surgery was performed at Kalispell Regional Hospital on November 14, 1979.
In the immediate post-operative period Ms. Wisher experienced symptoms of pain, nausea, dizziness, loss of equilibrium, vomiting, and buzzing in her left ear. Dr. Higgs attributed these symptoms to the side effects of anesthesia and to a condition known as post-operative labyrinthitis, an inflammatory process of the inner ear canal which he attributed to the surgical procedure itself. Dr. Higgs noted that this condition persisted in spite of the use of labyrinthine suppressant drug therapy. He discharged Ms. Wisher from the hospital on November 18, 1979
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