ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
This medical malpractice case was filed by John Cayson in the Circuit Court of Lee County, Mississippi, against Dr. James T. Trapp, Radiology of Tupelo, P.A. and North Mississippi Medical Center (NMMC). The lower court directed a verdict in favor of North Mississippi Medical Center at the conclusion of Cayson's case and submitted the issues of liability and damages as to Dr. James T. Trapp and Radiology of Tupelo, P.A., to the jury, which returned a verdict of two million dollars ($2,000,000) in favor of Cayson. Dr. Trapp and Radiology of Tupelo, P.A., have appealed, assigning six (6) errors in the trial below. Cayson has appealed from the directed verdict in favor of North Mississippi Medical Center and assigns two (2) errors in the trial.
John Cayson was seen by his regular doctor, Dr. William Gary, a general practitioner, on December 5, 1977. He complained of headaches, dizziness, and ringing in the ears. Upon Dr. Gary's suggestion, he entered the North Miss. Medical Center (NMMC) the same day for tests. At that time, either an intracranial lesion, obesity, or an anxiety reaction were felt to be the possible causes of his problem. A series of tests all proved normal. After a consultation with the neurosurgeon, an arteriogram was suggested. A CAT scan was not considered. *fn1 While the arteriogram was being performed, Cayson's problems began.
An arteriogram is conducted by inserting a catheter into the femoral artery. The catheter is then manipulated through the circulatory system until it reaches the neck area. Dr. Trapp, a radiologist with Radiology of Tupelo, P.A., entered the case for the purpose of conducting the arteriogram. During the procedure, he intended to perform a vertebral arteriogram, although the consent papers Mr. Cayson signed were for a bilateral carotid arteriogram. The vertebral arteriogram gives a picture of three arteries (vertebral and both carotid) while the bilateral carotid arteriogram shows only the two carotid arteries. In performing the test, a dye is injected into the arteries and then they are X-rayed.
An arteriogram is considered a simple procedure, and is relatively painless. The arteriogram was performed on December 12, 1977. A left carotid arteriogram was successfully conducted, and a left vertebral arteriogram was being performed when complications arose. Dr. Trapp injected
about 1/2 cc. of the dye as a test, which revealed that he was near the thyrocervical artery. Cayson experienced some momentary chest pains, but they subsided. This pain was not unusual. Dr. Trapp then repositioned the catheter near the vertebral artery and again injected a small amount (approximately 1/2 cc.) of the dye. At this point Cayson began experiencing severe pain.
The pain began in Cayson's chest and radiated into his left shoulder and arm. There was also some weakness of the left leg. Cayson was being monitored closely. There was no change in his electrocardiagram or blood pressure, but his pulse rate increased to 110 before returning to 60-70 beats per minute. At this time, the arteriogram was discontinued and Dr. Gary was notified. It was felt that Cayson had suffered a heart attack. During the next few hours in intensive care, a progressive weakness of the arms and legs was noticed. There was also a loss of bladder and bowel control and the loss of feeling below the neck. Dr. Trapp, Dr. Gary and Dr. Thomas Joseph McDonald (a neurosurgeon) consulted with each other and a number of possibilities were discussed.
Dr. Hugh James Francis Robertson, a witness for appellee, testified that Cayson's problems were the result of a reaction to the dye when it entered Cayson's spinal cord. He also explained how this could happen. It was known at the time that paralysis was a possible side effect of the arteriogram, although it is very rare. Dr. Robertson felt that a sufficient amount of dye to cause the problem could have occurred in one of two ways. Dr. Trapp could have injected more than 1/2 cc. of dye as a test and then tried to cover it up, or he could have injected the dye into an artery which directly supplies the spinal cord. Although unusual, some people do have such an artery in the vicinity of the carotid and vertebral arteries. Although Dr. Trapp was not aware of it, Cayson had experienced problems with other tests using the same dye. Dr. Robertson felt this was significant, while Dr. Trapp's witnesses did not.
A number of possibilities were advanced as the cause of Cayson's problems. In order to alleviate his condition, a spinal fluid exchange was considered, but ruled out because it would put a strain on Cayson's heart. Dr. Robertson stated that, had a spinal fluid exchange been done, Cayson probably would not be paralyzed. Dr. Robertson admitted that Cayson was having some symptoms of a heart attack, but felt that a reaction to the dye was more clearly indicated. He was of the opinion this caused Cayson's paralysis.
The defense witnesses were not sure what caused Cayson's problems, but were positive that they were not a reaction to the dye. Two possibilities were complications from suffering a mild heart attack during the arteriogram or a clot in an artery to the spinal cord caused by an arterial spasm. Another possibility mentioned was that one of these conditions could have caused a sudden worsening of an existing problem. At the time these tests were being run, it was suspected that Cayson had a circulatory problem. Dr. Robertson suggested that the ringing of the ears was a result of Cayson's contact with heavy equipment on his job as a construction worker. The defense witnesses said it was just a coincidence that the headaches stopped when Cayson was treated for allergies. *fn2
Dr. Robertson further testified that, before an arteriogram was done, several other tests should have been conducted. First, a CAT scan should have been performed. It is considered a non-invasive procedure while an arteriogram is an invasive procedure. He felt that a CAT scan was proper even though it would have required a trip to Memphis. (NMMC did not have the necessary equipment for a CAT scan). If the CAT scan did not show anything unusual, then Dr. Robertson said that a posterior fossa myelogram should have been done. Only then should an arteriogram have been performed. Dr. Robertson testified that an ear, nose and throat specialist should have been consulted due to the ringing in the ears. He based this on the fact that while no specific diagnosis had been made, an acoustic neuroma (tumor in the inner ear) had been suggested. Dr. Trapp's experts testified that a CAT scan would not have been useful and that the possibility of an acoustic neuroma had been eliminated by the earlier tests. There was no explanation why an ear, nose and throat specialist had not been consulted. Dr. Robertson testified that this was a deviation from acceptable medical practice in the area. He also testified as to what should have been done when Cayson started having problems during the arteriogram.
In addition to finding fault with Dr. Trapp's treatment, Dr. Robertson criticized the manner in which Cayson's consent for the procedure was obtained. Dr. Gary ordered, and Cayson signed a consent form for, a bilateral carotid arteriogram. His signature was obtained by two nurses, Charlene Tomlin and Jean Herring, at the Belle Vista unit of the NMMC. They did not explain the procedure to him and did not know whether it had been explained to him when he signed it. Dr. Robertson testified that the nurses should not have signed it, if they did not know whether the procedure had been explained. Defense witnesses testified that the purpose of the nurses' signatures was just to verify Cayson signed the
consent. There was no denial that Cayson signed it two days before the procedure was explained to him.
Prior to the arteriogram, Cayson was given 10 mg. of Valium and some aspirin. Dr. Trapp explained the procedure to him shortly before it began. All agree that the explanation should take place before the patient is sedated.
Dr. Robertson testified that the 10 mg. of Valium could have been enough to affect Cayson's ability to understand the procedure. He also stated that Cayson should have been informed about the possibility of paralysis and that it was wrong to put bilateral carotid arteriogram on the consent form when the doctor planned to do a vertebral arteriogram.
Dr. Trapp and his experts testified that it was common practice to have the forms signed before the actual explanation and that the Valium was not enough to affect Cayson. Dr. Trapp said that he observed Cayson and felt Cayson understood the procedure. He stated the term" bilateral carotid arteriogram "was used to note the minimum amount of testing to be done, and that he had the authority to expand the test, if he thought it would be helpful. Thus, the reason he did the vertebral arteriogram. He and his experts testified that they did not feel a specific warning about paralysis was necessary.
Cayson testified he did not remember Dr. Trapp explaining the procedure and that he would not have consented to it had he known about the possiblity of paralysis. Cayson's rehabilitation specialist, Dr. Terry Carle, testified that among other things, Cayson suffered from long-term memory loss. Appellants say this is why Cayson does not remember the explanation.
At the time the arteriogram was performed on Cayson, December 12, 1977, he was forty-seven (47) years of age, married, and a construction worker. He has been paralyzed from the chest down since that time and is a quadraplegic.
THE COURT ERRED IN ALLOWING THE TESTIMONY OF DR. ROBERTSON.
The appellants contend that Dr. Robertson was not qualified to testify under the locality rule, and under the expanded rule announced in King v. Murphy, 424 So. 2d 547
(Miss. 1983), and was not qualified to testify as to the standard of informed consent in Mississippi. The lower court held that Dr. Robertson was properly qualified in all respects as an expert medical witness for the purpose of testifying in Cayson's behalf.
Voir dire examination of Dr. Robertson was conducted outside the presence of the jury to determine his qualifications as an expert medical witness. Although he has not been licensed to practice medicine in Mississippi, he is licensed in Louisiana, Florida and several other states, where he has practiced as a specialist in diagnostic radiology and sub-specialist in neuroradiology. He graduated from the University of Ottowa, Ottowa, Ontario, Canada, in June, 1959, which institution is accredited and inspected by the American Medical Association and the Canadian Medical Association, and he served his internship at a number of hospitals. In 1968, after passing the examination, he obtained a diploma of the American Board of Radiology in Diagnostic Radiology. Subsequently, he took and passed the oral part of the examination, and became accredited as a specialist in Diagnostic Radiology, recognized by the American Board of Radiology. He has had special training for his sub-speciality of neuroradiology with post-graduate fellowship training at Johns Hopkins Hospital in Baltimore, Maryland, and cardiovascular training at Shady Side Hospital in Pittsburg, Pennsylvania. Dr. Robertson is a senior member of the American Society of Neuroradiology. His training exceeded the requirements of the American Society of Neuroradiology. He is employed by Louisiana State University in New Orleans, where he has been Associate Professor of Radiology for the past four (4) years. Dr. Robertson is head of the section of neuroradiology at Louisiana State University and practices fulltime in the Department of Radiology in the section of neuroradiology at the Charity Hospital, New Orleans. He has published seven (7) articles in radiologic literature and has presented papers at local, national and international meetings.
Every physician in the United States is required to take the same test to become a Diplomate of the American Board of Radiology. Hospitals and all universities require certification by the American Board of Radiology in order that a doctor may be acceptable for employment. Dr. Robertson testified that he had been associated with university hospitals and training programs in radiology for the past thirteen (13) years and that the requirements are the same whether one is practicing in Tupelo, Mississippi, or New Orleans, Louisiana. They set a certain basic standard that is acceptable for practice. Suffice it to say, the record
reflects that Dr. Robertson is eminently qualified as a medical expert and as a physician and a specialist in diagnostic radiology and a sub-specialist in neuroradiology.
Although Dr. Robertson admitted that he had never been to Tupelo and had not been in North Mississippi Medical Center until he went to Tupelo for the purpose of testifying in the trial, he stated that from his experience and training, knowledge of standards of practice of radiologists in general, and from reading the deposition of Dr. Trapp and examining the medical records in the case, he is familiar with, and knows, what the care and practice should be, and is, in Tupelo, Mississippi. Further, as to the standard with reference to informed consent, he knew what the standard should be in Tupelo. According to Dr. Robertson, the standard to which he referred is the basic standard set by the ...