The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 5/20/97
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED-2/25/99
MOTION FOR REHEARING FILED:
¶1. On February 16, 1993, the appellant, Michael Coltharp, injured his right arm when he lifted a 55 gallon drum to empty it. To lift the drum, Coltharp placed his left hand on top of the barrel and tipped it over with his right hand under the bottom of the drum. He immediately felt pain and thought he had pulled a muscle. By the time he got off work that evening, his arm was red in the area of the biceps muscle.
¶2. On the following day, Coltharp went to the Baptist Hospital emergency room in Union County, Mississippi. Coltharp was then admitted overnight, and X-rays were taken because the emergency room doctor suspected a dislocated shoulder. However, the next morning, Dr. Bullwinkel informed Coltharp that he did not have a dislocated shoulder and referred Coltharp to Dr. Carsten, an orthopedic doctor in Oxford, Mississippi. Dr. Carsten was unsure of the source of the problem, so he referred Coltharp to Dr. Carnesale, an orthopedic surgeon, at the Campbell Clinic in Memphis, Tennessee.
¶3. Dr. Carnesale testified that Coltharp was referred to him by Dr. Carsten for evaluation of a mass in the bicep area of his arm. Dr. Carnesale saw Coltharp for the first time on February 23, 1993. Coltharp brought X-rays of the right arm and elbow to Dr. Carnesale on this first visit. The X-Ray Report from Baptist Memorial Hospital in Union County indicated no fractures to the right elbow, right shoulder, or the right humerus. Following his examination, Dr. Carnesale ordered a MRI, needle biopsy and bone scan.
¶4. Following completion of these tests, Coltharp returned to Dr. Carnesale on March 9, 1993. The MRI report indicated extensive musculoskeletal injuries to the right shoulder girdle and long-head of the biceps tendon with a soft tissue mass in the anterior aspect of the arm compatible with a combination of hematoma and torn muscle fibers from the long-head of the biceps muscle. The MRI report further indicated a large impaction fracture of the humeral head on to the glenoid process. However, Dr. Carnesale's notes only referenced the injury to the biceps muscle.
¶5. On March 9, 1993, Dr. Carnesale recommended a range of motion exercises for the right arm and shoulder which consisted of (1) a pulley system attached to a door frame, (2) using fingers to "walk" the arm up a wall, and (3) making of a fist with the right hand. These exercises were recommended in order to preserve some mobility of the shoulder joint.
¶6. Coltharp returned early to Dr. Carnesale on March 16, 1993, concerned about excessive swelling. Dr. Carnesale's notes indicated that he believed the swelling was a result of Coltharp sleeping with his hand in a dependent position. Dr. Carnesale again spoke to Coltharp about appropriate gentle exercises to maintain motion in the shoulder. Additionally, Dr. Carnesale ordered x-rays of the right humerus to show the shoulder.
¶7. Dr. Carnesale next saw Coltharp on April 7, 1993. *fn1 Coltharp had less swelling and less pain but had some difficulty with the use of his right shoulder. Dr. Carnesale's notes stated that from the x-rays it looked as if Coltharp is developing Charcot arthropathy or neuropathic arthropathy of the right shoulder. *fn2 However, clinical notes also indicated that films were made of Coltharp's arm and not of the shoulder itself, and that the projection may be a little bit misleading. Dr. Carnesale advised Coltharp to maintain motion of the shoulder, and to do isometric exercises but to let pain limit his activities. Dr. Carnesale ordered x-rays of the right shoulder and asked Coltharp to return in six weeks.
¶8. Coltharp returned to Dr. Carnesale on May 5, 1993, and complained of increasing pain and swelling in the shoulder. Dr. Carnesale's notes stated that x-rays show unequivocal evidence of a neuropathic shoulder. Dr. Carnesale advised Coltharp to avoid trying any type of vigorous activity. Dr. Carnesale stated that the shoulder needs to rest to let the acute phase of this problem settle down, and that he felt a bit remiss in not recognizing the underlying nature of the problem before. Dr. Carnesale then recommended that Coltharp consult the Department of Vocational Rehabilitation for retraining in a job that is not physically strenuous.
¶9. Coltharp filed a complaint on February 23, 1994, claiming that Dr. Carnesale failed to make a timely diagnosis of the neuropathic shoulder (Charcot joint) and negligently treated him by prescribing passive range of motion exercises for the shoulder. Coltharp alleged that as a result of Dr. Carnesale's failure to diagnose and properly treat his condition, he is totally disabled and has no use of his right shoulder.
¶10. Dr. Carnesale denied the allegations of the complaint and denied that any action or failure to act on his part caused any damage or injury to Coltharp. Specifically, Dr. Carnesale maintains that even though he did not make the diagnosis of a neuropathic shoulder until April of 1993, there was nothing Dr. Carnesale could have done to prevent Coltharp's injury to the shoulder joint since Coltharp's injuries were a result of an inherent progress of the disease process, associated with the syringomyelia, already present in Coltharp's body. Furthermore, Dr. Carnesale asserts that his instructions concerning passive range of motion exercises were an appropriate treatment in order to prevent the shoulder joint from completely locking up. Dr. Carnesale further declares that the exercises helped Coltharp maintain some function of the right shoulder.
¶11. In September, 1995, Dr. Carnesale, through his attorneys identified orthopedic surgeon, Dr. Walter R. Shelton, as a defense expert and provided information concerning the ...