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McPherson v. Rudman

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2018

CAMERON MCPHERSON, Appellant
v.
BRIAN DAVID RUDMAN, M.D., Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-05858

          Before Justices Evans, Whitehill, and Schenck Opinion by Justice Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Cameron McPherson appeals the trial court's judgment, following a jury trial, that he take nothing on his negligence claims against Brian David Rudman, M.D. In four issues, McPherson argues (1) a neurologist's testimony should have been disallowed or stricken because Rudman failed to disclose the neurologist's "new opinions"; (2) the neurologist should not have been permitted to testify regarding the cause of McPherson's injury; (3) the admission of the neurologist's testimony probably caused the rendition of an improper verdict and probably prevented McPherson from properly presenting his case to this Court; and (4) without the neurologist's testimony, the jury's verdict was against the great weight and preponderance of the evidence. We affirm the trial court's judgment.

          On October 20, 2010, Dr. Charles Cook performed foot surgery on McPherson. The anesthesiologist during surgery was Rudman. After the surgery, Rudman performed a popliteal fossa nerve block which involved placing a "pain pump" via catheter in McPherson's right posterior thigh. When McPherson awoke from anesthesia, he had numbness in his right foot and right lateral lower leg. One of the nurses told McPherson the numbness was "normal," and he was discharged in a splint.[1] On October 22, 2010, McPherson had severe pain on the undersurface of his foot, and he went to the emergency room where the splint was removed, improving the pain. On the evening of October 23, 2010, McPherson's mother removed the pain pump.

         In April 2011, Cook referred McPherson to a neurologist, Dr. Norma Melamed, because McPherson was "having neurologic symptoms," and Cook wanted Melamed to evaluate him. McPherson's treatment was ongoing. In May 2013, McPherson filed a lawsuit against Rudman and Cook, who was later nonsuited. McPherson alleged Rudman was negligent in failing to properly install the pain pump and failing to recognize and diagnose harm caused by the pain pump, and McPherson was harmed as a result.

         In December 2015, the case went to trial before a jury. Melamed testified that, after initially examining McPherson and taking his medical history, Melamed determined McPherson "clearly had a right sciatic nerve injury." Melamed performed a "nerve conduction EMG" test on McPherson because the EMG was the "only test" that could help in "determining what happened" to McPherson. Melamed considered as possible causes of McPherson's injury (1) placement of the tourniquet, (2) injury to the right sciatic nerve due to puncture or injection of pain medication into the right sciatic nerve, and (3) "compression injury from the cast that was too tight." Melamed "had to entertain all three possibilities, and then go to [her] nerve study and decide was the problem primarily a pressure problem or was primarily an injection of the anesthetic into the nerve." The EMG test enabled Melamed to determine that "the nerve had been pressed on from the outside in" and conclude "we had axonotmesis . . . a pressure injury from the outside in." Melamed also conducted an MRI to "visualize the sciatic nerve" and determine if, "in the back of the knee which is that popliteal fossa area" there was any abnormality resulting from injury when the nerve was injected with anesthetic. Melamed determined the sciatic nerve was normal. In further describing the three possible causes of McPherson's injury, Melamed testified as follows:

So based on history, examination and most importantly the nerve conduction study, we know for sure it was a pressure injury. We know the level of the injury was in the thigh. It's called the trunk of the sciatic nerve. So No. 1 is the tourniquet. No. 2 it was almost certain impact from the cast because we know that when [McPherson] had the cast released after 48 to 72 hours, he had tremendous relief of pain. So we know it was causing compression because otherwise when it was released it would have been no change in his pain. No. 3 the only issue I can bring about the anesthetic is in any patient there's a chance that the nerves might be sensitive to the anesthetic. Because anesthetic has something in it that can cause the blood vessels to constrict meaning they can get narrow. They can react to the anesthetic that way. So in any patient, if the nerves happened to be sensitive to anesthetic, it could be constrict [sic] of the blood vessels and that could cause additional damage to the nerve. If the nerves had already been damaged because they had been squished from the outside, they're going to be more sensitive to the anesthetic. Squishing causes the blood vessels to get more squishy, constrict. So there is a possibility and it is -- unfortunately that is a risk of anesthetic bathing the nerves, it may or may not have been an additional factor.

         Counsel asked Melamed if she had an opinion in reasonable medical probability based on everything she had seen and everything she was trained in whether or not Rudman "got into the nerve and damaged the nerve during the procedure in question more likely than not." Melamed answered, "My opinion that it was not the cause."

         On cross-examination, McPherson's counsel questioned Melamed about a deposition scheduled with Melamed in August 2014 and a meeting between Melamed and an attorney from counsel's firm before the scheduled deposition. Counsel asked if Melamed said at the meeting that she could not "really tell which of those three possible causes you put down were more likely than not the cause" of McPherson's injury. Melamed denied making such a statement.

         On re-direct, Melamed testified that, "one or two weeks" before Melamed's scheduled deposition, McPherson's counsel met with Melamed and asked "what [her] opinions were about the case." Melamed "discussed it similarly to now" and got a communication saying the deposition was canceled about a week later. Defense counsel asked what Melamed told McPherson's counsel about her "opinion in reasonable medical probability as to whether or not this man got into this nerve with a needle and catheter and damaged it." Melamed responded as follows:

I would have said exactly what I'm saying now, but I cannot remember the exact details of my conversation except that what I said -- what I'm saying now is I have to review this level of detail before the deposition. So it was when I really got into the details of the case was before that deposition, so I discussed exactly all of this at our brief meeting, saying that -- that the injection of the anesthetic was not the primary cause. It was recognized at that point that we had the discussion. It was more to this case and the anesthesiologist, and they recognize that there had been a issue with dropping other focus or on this lawsuit.

         On re-cross, in response to a question from McPherson's counsel regarding what Melamed said in the August 2014 meeting, Melamed said she did not tell counsel that she "could not decide between the three potential causes as to which was the most likely." Following this question and response, McPherson's counsel passed the witness, and the trial was recessed for the weekend.

         On the following Monday, McPherson filed a motion to strike Melamed's testimony. The motion asserted Melamed had never before expressed the opinion that Rudman's insertion of a needle in McPherson's sciatic nerve was not a cause of McPherson's injuries. The motion argued, among other things, that Melamed's opinion should be ...


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