WONG et al.
CHAPPELL et al
This Opinion is Uncorrected and subject to revision by the court.
MCFADDEN, Judge. Ellington, P. J., concurs; Dillard, J., concurs in the judgment only.
Ruth Oleana Wong died after undergoing a cryoablation of the endometrium, a procedure to destroy a thin layer of the lining of her uterus through freezing. After her death, her husband, Kwee Wong, filed this medical malpractice action. He appeals the defense verdict in favor of doctors Mary L. Chappell, Kimberly A. Huffman, and Terry V. Kelley, and their practice, OB-Gyn Associates, P.A.
Wong argues that the trial court erred by refusing to charge the jury on simple negligence. Because at least some of Wong's allegations call into question only the execution of administrative, clerical tasks, not the exercise of professional skill and judgment, we agree and therefore reverse and remand. Since we are remanding, we address Wong's arguments that are likely to recur on retrial. Wong argues that the trial court erred by refusing to instruct the jury on the unauthorized practice of medicine and negligence per se. We agree because Wong presented some evidence that an unlicensed medical assistant engaged in acts that required a medical license. However, we reject Wong's argument that the trial court erred by refusing to instruct the jury that the printed material from the manufacturer of the cryoablation device -- the " package insert" and user's manual -- established the standard of care for the use of the device. Although the printed material
is relevant, expert testimony is required to establish the standard of care. We reject Wong's argument that the trial court erred by admitting a resource guide published after Mrs. Wong's procedure because he has not shown that the trial court abused her discretion. We do not address Wong's argument that the trial court erred in directing a verdict on his punitive damages claim because the resolution of that claim on retrial will depend on the evidence introduced. Nor do we address his argument that the trial court erred in allowing defense counsel to strike a juror for cause after the parties had begun exercising their peremptory challenges because any such error is unlikely to recur on retrial.
Mary Chappell, an obstetrician-gynecologist, performed a cryoablation on Ruth Oleana Wong on October 4, 2010. Chappell performed the procedure in her office.
A few days after the procedure, Mrs. Wong began experiencing increased pain, which radiated along her flank to her back. On October 13, Mrs. Wong called Chappell's office. She spoke to Lauren Gephart, an unlicensed medical assistant. She told Gephart that she was experiencing pain radiating from her flank and back, bleeding, and changes in her bowel movement. Gephart thought that Mrs. Wong might have a urinary tract infection, so Gephart asked her whether she had any of the typical symptoms. Gephart did not talk to any doctor, nurse practitioner, or physician's assistant about the back and flank pain or the bleeding because she did not think Mrs. Wong's complaints were sufficiently serious, although she may have made a comment to Chappell in passing about Mrs. Wong's question about her bowel movement. Gephart told Mrs. Wong that her symptoms could be normal and advised her to take 800 milligrams of Ibuprofen; Gephart had been instructed by the doctors that she should advise patients to take 800 milligrams of Ibuprofen every eight hours as needed for any sort of abdominal or back pain. Gephart was not authorized to make medical diagnoses or to give medical advice, she testified, but one of the doctors in the practice, defendant Kelley, testified that the medical assistants were authorized to give medical advice that has been " supervised, taught, trained," by the physicians in the office. Huffman, another doctor-defendant, testified that Gephart should have asked Mrs. Wong the intensity, duration, and severity of her pain, and should have notified Chappell if the pain was severe. Huffman testified that medical assistants " are allowed to give clinically relevant information as instructed by their supervising physician."
On October 17, Mrs. Wong went to the emergency room and was admitted to the intensive care unit. In the early morning of October 18, Huffman, who was the on-call doctor for OB-GYN Associates, saw Mrs. Wong. Later that day, Mrs. Wong underwent exploratory laparoscopic surgery. Although another physician performed the laparoscopy, defendants Chappell and Kelley were in the operating room; Chappell had asked Kelley to be available to assist should Mrs. Wong need a hysterectomy. Mrs. Wong's uterus was " very boggy," with a " dark, mottled" appearance. Chappell and Kelley believed that the cryoablation could have caused Mrs. Wong's uterus to look that way. Chappell decided not to remove Mrs. Wong's uterus, and Kelley concurred in the decision because he thought that Mrs. Wong would not survive a hysterectomy.
Eleven days after she was admitted to the hospital, Mrs. Wong died. More than two months after the cryoablation procedure -- and after Mrs. Wong had died -- Mrs. Wong's written antibiotic prescription was found at the OB-GYN Associates office. Chappell had written on the slip, " Found December 8, 2010, at front desk."
Wong filed this action individually and as executor of Mrs. Wong's estate. He alleged that Chappell perforated the wall of Mrs. Wong's uterus during the cryoablation, eventually leading to sepsis and necrosis; that when Mrs. Wong called OB-GYN Associates about the resulting pain, Lauren Gephart failed to handle the call appropriately; that when she consulted at the hospital, Huffman failed to give Mrs. Wong care; and that Chappell and Kelley observed Mrs. Wong's necrotic, ischemic uterus during the exploratory
laparoscopic surgery, but failed to perform a hysterectomy. Wong sought damages for Chappell's, Huffman's, and Kelley's professional negligence and for OB-GYN Associate's vicarious liability ...