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Knight v. Clark

Court of Appeals of Mississippi

April 2, 2019


          DATE OF JUDGMENT: 03/23/2017




         EN BANC.

          J. WILSON, P.J.

         ¶1. This appeal follows a defense verdict in a medical malpractice case. The jury found that Dr. Craig Clark did not breach the standard of care in his treatment of Beverly Knight. On appeal, Knight argues that there is insufficient evidence to support the verdict, that the verdict is against the overwhelming weight of the evidence, that the trial judge abused his discretion by limiting the testimony of one of her expert witnesses, and that the defense expert improperly offered new and previously undisclosed opinions at trial. For the reasons discussed below, we hold that there is sufficient evidence to support the verdict, that the verdict is not against the weight of the evidence, and that no reversible error occurred during trial. Therefore, we affirm the judgment entered on the verdict.


         ¶2. In 2006, Knight began experiencing problems with pain in her lower back and right leg.[1] She was referred to Dr. Craig Clark, a neurosurgeon then practicing in DeSoto County. Dr. Clark recommended a transforaminal lumbar interbody fusion (TLIF).

         ¶3. A TLIF is a surgical procedure that attempts to fuse vertebrae in order to stabilize the patient's spine. A rod is used to hold the vertebra together to allow fusion to occur. The rod is held in place by "pedicle screws," which the surgeon must insert into the pedicles. The pedicles are bony projections that extend from the back of the vertebra on either side. The pedicles help to protect the spinal canal and the spinal nerves. Dr. Clark performed a TLIF on Knight in February 2007 and inserted four pedicle screws into Knight's pedicles at the L5-S1 region of the spine.

         ¶4. Dr. Clark, a board certified neurosurgeon, testified that he had performed this procedure approximately 350 to 400 times. Dr. Clark and his expert witness, Dr. Walter Eckman, testified that the pedicle screws must be inserted into the pedicle at an angle because of the length of the screws and because "the goal is to get as much bony purchase as you can without traversing the area where the nerves are." The screws should enter the vertebral body through the pedicle and should not "breach" the wall of the pedicle and enter the spinal canal. The spinal nerves are located inside the spinal canal, so a screw that breaches the spinal canal has the potential to impinge on the spinal nerves and cause pain.

         ¶5. After her surgery, Knight had approximately five follow-up visits with Dr. Clark between February and August 2007. Knight reported continuing pain, and Dr. Clark prescribed pain medication. He also prescribed physical therapy. In May 2007, Knight was released to work half days at her job at a bank, and by August 2007 she had returned to work full-time. She continued to report pain through her last visit with Dr. Clark in August 2007. Knight testified that she told Dr. Clark that, in particular, she was continuing to experience pain in her left leg. However, she also told Dr. Clark that she was "80 to 85 percent better" in her back and right leg.

         ¶6. Dr. Clark advised Knight that it would take up to two years for her to fully recover from the surgery. Dr. Clark last saw Knight in August 2007. He testified that at that point he considered her recovery from the surgery to be within the normal range of what could be expected. He told her that as long as she was able to tolerate eight-hour days at work, she should continue to give her recovery "some time." He also advised her to return to see him "as needed."

         ¶7. Although Dr. Clark did not see Knight after August 2007, Knight continued to call Dr. Clark's office for normal prescription refills until January 2009. Dr. Clark testified that Knight was taking only a non-addictive pain medication, which he considered a "comfort issue" and not an indication of any underlying problem.

         ¶8. In October 2008, Knight moved to Tennessee and began seeing new doctors. She continued to experience pain, primarily in her left leg. In December 2009, she underwent an MRI, which showed that one of the pedicle screws was angled into or near the spinal canal, although the written MRI report specifically noted that there was no apparent nerve root impingement at the L5-S1 level.

         ¶9. Knight subsequently was referred to Dr. Craig Humphreys, an orthopedic surgeon in Chattanooga. In July 2010, Dr. Humphreys ordered a CT myelogram and, after reviewing the images, concluded that one of the pedicle screws inserted during Knight's TLIF had breached her spinal canal and was touching spinal nerves. Dr. Humphreys recommended surgery to remove the pedicle screws and other hardware from Knight's lower back. Dr. Humphreys performed that surgery in August 2010. Dr. Humphreys concluded that there was adequate fusion from the TLIF and that Knight's spine and lower back were stable.

         ¶10. In August 2011, Knight filed a medical malpractice lawsuit against Dr. Clark in DeSoto County Circuit Court. The case eventually proceeded to trial in March 2017. In his testimony at trial, Dr. Clark denied that he misplaced the pedicle screw and denied that any breach of the spinal canal occurred during Knight's surgery. Dr. Clark also denied that he breached the standard of care, and he denied that Knight's pain was caused by the pedicle screw.

         ¶11. Dr. Clark testified that after he inserts pedicle screws, he uses a "ball probe" to check their placement. The ball probe is inserted into the spinal canal during the surgery, and the surgeon is able to use it to "feel" for any breach of the spinal canal. Dr. Clark testified that the probe gives the surgeon "tactile feedback" so that "if the screw actually has penetrated into the canal or an open space," the surgeon "can feel that" and can correct the placement of the screw. Use of a ball probe is a common and accepted surgical technique. Dr. Clark testified that he used the ball probe in this case to confirm that no screw had breached the spinal canal.

         ¶12. Dr. Clark, his expert witness (Dr. Eckman), and one of Knight's expert witnesses (Dr. Martin Cooper), all agreed that an initial misplacement of a pedicle screw is not a breach of the standard of care. In fact, it is common for the surgeon to misplace a screw during the surgery, at least initially. The standard of care requires the surgeon to attempt to detect and correct any misplaced screws by using tools such as a fluoroscopy, which shows a continuous x-ray image during the procedure, and a ball probe. Dr. Clark utilized both of those tools during Knight's procedure.

         ¶13. Dr. Clark testified that during Knight's surgery he used the ball probe to check for any breach of the spinal canal, and he testified that there was no breach of the spinal canal during the procedure. He testified, "I did not place that screw in the spinal canal or I would have felt a breach with the probe." Dr. Clark was consistent and adamant that he did not breach the spinal canal. He testified that the screw at issue in this lawsuit must have "moved" or "migrated" after Knight left his care.

         ¶14. On this specific issue, Dr. Clark's testimony diverged from the opinion of his own expert, Dr. Eckman, who is also a board certified neurosurgeon. Dr. Eckman opined that the screw was misplaced during the surgery and that there was a breach of the spinal canal during the surgery. Dr. Eckman did not believe that the screw had moved or migrated post-surgery. Dr. Eckman did not say that "migration" of a screw "could never happen." Dr. Eckman did not "think" that migration "happened in this case." However, he testified that migration possibly could occur "if you had terribly soft bone."

         ¶15. Dr. Eckman also testified that, despite misplacing a screw, Dr. Clark met the standard of care both during and after Knight's surgery. Dr. Eckman explained his opinion on this issue as follows:

         Q. . . . [D]o you have an opinion of whether or not in this procedure Dr. Clark met the standard of care in performing this procedure?

         A. Yes.

Q. Okay. What is that opinion?

         A. Okay. The first issue, placement of the screw. There is no standard for that. What's important to know with the placement of these screws, I would be shocked if you could find a surgeon who has put in any number of these pedicle screws that has not misplaced one. My error rate is extremely small. Even the robots have a certain error rate. They're using robots to put these in some now. So it can be improved with some technology and some different techniques, but it is something every surgeon has experienced. So it is not -- misplacement of a pedicle screw is simply not any kind of negligent action. It is not beyond any standard. As I said, there is no standard because nobody can do it without errors. Okay.

The rest of it is, what is he doing to try to protect his patient during the procedure? Well, he made an effort to feel that pedicle to try to see if the pedicle screw was misplaced, and unfortunately, the anatomy of the structure is such a way that he couldn't feel it or see it or find it because it was hidden from him by the position of the screw being so far medial. Okay. But he made the effort, which is what you have to ask of your doctor. Do the best you can.
So he has a standard technique. He uses the little ball probe that he puts down in the drill hole to try to feel it. He tried to make it safer by using that. Obviously, it's not always a perfect technique I would say. He used the fluoroscopy trying to help guide also very much trying to help the patient.
So all of these are efforts to do a good procedure. The fact that part of the procedure didn't work out perfectly is something that happens. It will happen to all of us as surgeons who do these kind of operations.
Q. Did that meet the standard of care?
A. The standard is doing an appropriate procedure and doing it within -- as I said, his operation is the more common in this country than mine.
A. So he meets that standard of care better than I do.
Q. Okay. All right. Now, . . . let's change our focus . . . to after the surgery. Did Dr. Clark's treatment of Ms. Knight after the surgery meet the standard of care?
A. Yes.
Q. Okay. Tell us why.
A. . . . What we want of our doctors that operate on us is to have some method of postoperative followup . . . .

         Dr. Eckman went on to explain that, in his opinion, Dr. Clark provided appropriate monitoring and care after the surgery. According to Dr. Eckman, Knight's post-operative recovery was within the normal range, and nothing that Knight reported to Dr. ...

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