OF JUDGMENT: 03/23/2017
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JAMES MCCLURE III
ATTORNEYS FOR APPELLANTS: LINDSEY C. MEADOR GARY K. SMITH C.
PHILIP M. CAMPBELL
ATTORNEY FOR APPELLEE: SHELBY KIRK MILAM
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.
AND PROCEDURAL HISTORY
In 2006, Knight began experiencing problems with pain in her
lower back and right leg. She was referred to Dr. Craig Clark, a
neurosurgeon then practicing in DeSoto County. Dr. Clark
recommended a transforaminal lumbar interbody fusion (TLIF).
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
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."
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
Q. Okay. What is that opinion?
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.
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?
Q. Okay. Tell us why.
A. . . . What we want of our doctors that operate on us is to
have some method of postoperative followup . . . .
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. ...