Luckey v. Kan

THIEME, Judge. Appellant Jane Luekey appeals from a judgment of the Circuit Court for Baltimore City (Ward, J., presiding) entered on a jury verdict in favor of the appellee, Robert O. Kan, M.D. In this case, we are asked to decide whether the trial court committed reversible error by giving a “mere happening” instruction in a medical malpractice action. We find that the instruction was proper because it was within the parameters previously established by the Court of Appeals. Accordingly, we shall affirm the judgment of the trial court. -facts- Luckey sought medical attention from Dr. Kan after she began to experience occasional numbness in her left hand.

Based on Dr. Kan’s diagnosis of an ulnar nerve entrapment at the left elbow, Luekey agreed to ulnar nerve transposition surgery on her left arm. Transposition surgery involves taking the ulnar nerve (commonly known as the funny bone) from over the elbow bone and placing it beneath the padding of the muscles in the arm. Immediately after Dr. Kan performed the surgery, Luekey experienced severe pain in her left arm and hand, accompanied by “clawing” and immobility of the fingers of the hand. Due to the severity of the symptoms, Dr. Kan performed a second exploratory procedure on Luckey’s arm.

During the second procedure, Dr. Kan found scar tissue under the skin and surrounding the ulnar nerve. This scar tissue caused Luckey’s pain and disability. Although the clawing of her hand ultimately disappeared, she was left with diminished use ³ of her left hand and arm as well as persistent and permanent pain in the region of her elbow. Luckey originally filed a claim before the Maryland Health Claims Arbitration Office, but all parties waived arbitration.

The Circuit Court for Baltimore City heard the case as a jury trial. At trial, Luckey presented expert testimony from Dr. Ronald Greene. Dr. Greene opined that, based on his review of all the medical records and photographs of Luckey’s ulnar nerve taken during the second surgery, the damage in Luckey’s ulnar nerve resulted from Dr. Kan’s negligence in the transposition surgery. Dr. Greene testified that Dr. Kan violated the standard of care by burning the ulnar nerve while attempting to cauterize bleeders around the nerve during the transposition.

Dr. George P. Bogumill, the expert for Dr. Kan, felt that Dr. Greene testified inaccurately because his conclusion was based on a misidentification of the ulnar nerve in the photographs. Dr. Bogumill testified that the ulnar nerve was shown to be intact in the second operation, and therefore could not have been cut during the first surgery. Dr. Bogumill opined that the ulnar nerve injury resulted from a nerve infarct due to an impediment of the blood supply to the nerve. According to Dr. Bogumill, because the nerve infarct was an unavoidable consequence of surgery, Luckey’s injury occurred absent negligence.

At the conclusion of the case, over the objection of Luckey, the court gave a “mere happening” instruction. The jury found that Dr. Kan was not negligent in the performance of the first procedure and returned a verdict in his favor. -discussion- It is not clear whether Luckey properly objected to the instruction