The opinion of the court was delivered by
Donnie D. Sledd, the plaintiff in a medical malpractice action,
appeals from a jury verdict finding no negligence on the part of
the defendant, Dr. William O. Reed, Jr. The single issue on
appeal is whether certain statements made by defense counsel in
closing argument constitute reversible error.
The underlying facts are not in dispute. On November 13, 1984,
the plaintiff fell from a tree and severely injured his back. He
was taken to the emergency room at Providence-St. Margaret
Hospital, Kansas City, Kansas. The emergency room doctor
contacted Dr. Robert Beatty, a neurosurgeon, who examined
plaintiff's x-rays and concluded plaintiff incurred a compression
or burst fracture of the first lumbar vertebrae. Dr. Beatty also
conducted a neurological and physical examination and found
plaintiff had normal sensation in his lower extremities, normal
muscle strength, and no sign of spinal cord injury reflected in
his deep tendon reflexes. In his progress reports of November
14-19, Dr. Beatty noted plaintiff had no neurological deficit,
observing only a tingling in the left instep on November 15.
Plaintiff was neurologically
normal in his lower extremities and no neurological changes
occurred during this time.
On November 15, 1984, Dr. Beatty contacted the defendant, Dr.
Reed, an orthopedic specialist, for an opinion on whether
plaintiff's fracture was unstable and required surgery. On
November 16 or 17, Dr. Reed informed Dr. Beatty that plaintiff's
fracture was unstable and recommended surgery. Dr. Beatty
discontinued seeing plaintiff and turned him over to Dr. Reed's
care for surgery. On November 23, 1984, Dr. Reed performed
surgery on the plaintiff consisting of an anterior decompression
of the spine and the application of a Dunn fixation apparatus or
device. Shortly after surgery, while plaintiff was still in the
recovery room, it was discovered that the plaintiff was suffering
a significant neurological deficit, including weakness and loss
of sensation in the lower extremities and an inability to move
his legs normally.
On November 27, 1989, Dr. Reed asked Dr. Beatty to examine
plaintiff. After doing so, Dr. Beatty immediately recommended a
myelogram, which revealed an obstruction of the spinal cord. Dr.
Beatty performed a laminectomy upon the plaintiff and removed a
blood clot which was pressing upon the spinal cord. However, the
plaintiff still suffers from disability to his legs.
Dr. Reed's treatment of plaintiff from the time he recommended
surgery until Dr. Beatty performed the myelogram and laminectomy
was the subject of this malpractice suit. Plaintiff claimed Dr.
Reed was negligent in two respects: "In choosing to carry out an
`anterior approach with decompression and Dunn fixation
apparatus, or device' for injury without neurological deficit
when other safer options were available"; and "[i]n failing to
properly monitor plaintiff's neurological deficits
postoperatively and take timely appropriate treatment measures."
As in most malpractice cases, there was expert testimony on
behalf of both parties. Dr. Fries, plaintiff's expert, testified
that Dr. Reed deviated from acceptable medical practice by
utilizing an anterior surgical approach, from the front and side
of the body, to the damaged spinal area rather than a posterior
approach from the back. Defendant's expert, Dr. Dunn, testified
that, while he personally preferred the posterior approach in
cases such as plaintiff's, the anterior approach was an
acceptable procedure that did not deviate from acceptable medical
standards. Dr. Reed testified
at length describing his reasons for electing the anterior
approach to the surgery.
Dr. Fries also found a deviation from acceptable medical
practice in the delay between the time of the operation and the
decision to do the myelogram to ascertain the cause of the
neurological deficit. He was of the opinion that the delay in
discovering and removing the blood clot caused permanent injury
to the spinal column, resulting in permanent damage to the lower
extremities. On the other hand, the defendant's expert found the
delay to be proper medical procedure.
The jury, after hearing all the expert testimony and other
evidence presented during a five-day trial, returned a verdict
finding no negligence on the part of the defendant, Dr. Reed.
This appeal followed.
Plaintiff asserts four issues on appeal, which all overlap and
intertwine, being essentially based upon certain statements made
by defense counsel during closing argument and the trial court's
rulings on objections to them. The controlling issues are whether
the statements were improper argument and, if so, whether
reversible error occurred. The statements deemed objectionable by
the plaintiff occurred during the summation of defense counsel's
argument. The record of defense counsel's closing argument reads
in pertinent part:
"One last comment on some of the evidence you
heard, and that is, is you've heard that only a few
orthopedic surgeons in each community tackle these
kinds of complicated spine cases. Doctor Reed in 1984
was the only one at either one of our two local
hospitals that did so, and that remains true today.
This case I'm sure points out to you the reason why
only a few do and only a few answer those kinds of
"MR. KANCEL: Objection, Your Honor. Unfair
"MR. McCAMISH: What?
"THE COURT: Overruled. It is closing argument.
"MR. McCAMISH: Okay. And that that reason is, is
that these are terrible injuries, these spine
injuries. They have many, many, many less than
favorable outcomes. They have many, many, as you've
heard everyone describe potentials for complications.
If we hold Doctor Reed responsible and other doctors