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Nicholson v. Deal12/8/1988
Mary Rose Nicholson appeals a summary judgment dismissing her medical malpractice action against Dr. E. Fred Deal and Dr. Edward Farrar. The primary issue is whether the defendant doctors' affidavits satisfy their burden to show the absence of any issue of material fact. We hold they do not and reverse the summary judgment.
Ms. Nicholson was 34 years old in 1983 when she consulted Dr. Bruce Ham about pain in her right hip. X-rays showed "a complete loss of the femoral head with significant osteoarthritic changes in the joint." Dr. Ham referred Ms. Nicholson to Dr. E. Fred Deal, an orthopedic surgeon. Dr. Deal recommended a total hip replacement. He performed this surgery on Ms. Nicholson in November 1983, with Dr. Edward Farrar assisting.
Ms. Nicholson returned to Dr. Ham in November and December 1983, complaining of pain and that her right leg was now longer than the left. Dr. Ham ordered x-rays, which he sent to Dr. Deal. On January 4, 1984, Dr. Deal wrote Dr. Ham:
We have reviewed your notes on Mary Nicholson, and also the x-rays. The general position of these components is very good with more methyl methacrylate along the medial margin of the pelvic brim than I would like, but it certainly should not really pose a problem. She had enough shortening of that leg that we did attempt to stretch it, and I am sure that is a major portion of her pain.
(Italics ours.) Methylmethacrylate is the adhesive used to cement the prosthesis to the hip bone during total hip replacement surgery.
In early 1984, Ms. Nicholson returned to Dr. Ham's office, complaining of pain. As he had before, Dr. Ham ordered x-rays and sent them to Dr. Deal. Ms. Nicholson again consulted Dr. Ham about her pain on May 24, 1984;
this time, Dr. Ham scheduled an appointment for her with Dr. Deal.
On June 8, 1984, Dr. Deal wrote Dr. Ham that he had examined Ms. Nicholson, that her leg length discrepancy was minimal, and that he was "pleased with her hip position, and she should be able to return to full activities very soon." This letter did not mention Ms. Nicholson's complaints of pain in her leg.
Over the next year, Ms. Nicholson consulted several doctors, but none of them could help her. Then on May 23, 1985, Ms. Nicholson visited Bill Robertson, a physician's assistant at the Colville Indian Health Center in Nespelem. She told him she had pain in her right hip and knee and pain during sexual intercourse. During an exam, Mr. Robertson found that by pressing on the right side of the vaginal wall, he reproduced the symptoms in her leg. He took x-rays and referred her back to Dr. Ham.
Dr. Ham reviewed the x-rays and noted they showed "significant methylmethacrylate on the inner aspect of the pelvis". He also performed a vaginal exam, during which he could feel the methylmethacrylate which was "firm and rock-hard". He diagnosed the pain as related to the methylmethacrylate. Dr. Ham advised Dr. Deal of his findings. Dr. Deal replied:
We have had an occasional extravasation of methyl methacrylate medially, and it appears that this one went right through the cement restricter cup that we utilized. At any rate, I have really not seen a problem under the illacus from the methyl methacrylate, but I do believe that that probably is the problem in this case, and that it probably should be excised.
On July 31, 1985, Dr. Ham surgically removed Ms. Nicholson's excess methylmethacrylate.
In November 1986, Ms. Nicholson filed this action for damages for personal injury against Drs. Deal and Farrar. She alleged they had failed to exercise the degree of care, skill and competence ordinarily posse
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