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Brenda J. Nissen, and Thomas Nissen v. Matthew R. Johnson

October 12, 2011

BRENDA J. NISSEN, AND THOMAS NISSEN, PLAINTIFFS,
v.
MATTHEW R. JOHNSON, M.D., M.P.H., DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs, Brenda J. Nissen and Thomas Nissen, brought suit against defendant, Dr. Matthew R. Johnson, M.D., M.P.H., alleging a medical malpractice cause of action. Thomas also claims loss of consortium. The Nissens seek compensatory and punitive damages. Dr. Johnson moves for partial summary judgment on the Nissens' request for punitive damages. The Nissens resist the motion. The motion is granted.

BACKGROUND

The pertinent facts to this motion, in the light most favorable to the Nissens, the nonmoving party, are as follows:

For about a year before Brenda first saw Dr. Johnson, she experienced significant pain in her left arm and neck. Due to her pain, Brenda was unable to complete all of her job tasks as a practical nurse at a hospital. Beginning in September of 2007, Brenda's pain worsened. Brenda consulted her family physician, Dr. Lindau, regarding the pain. Dr. Lindau suggested pain medications, steroids, and physical therapy as treatment plans. When those treatments failed to alleviate her pain, Brenda underwent a magnetic resonance imaging test (MRI) in November of 2007. In January of 2007, Dr. Lindau referred her to Dr. Johnson at the CNOS Clinic in Dakota Dunes, South Dakota.

On January 23, 2008, Dr. Johnson saw Brenda and recommended that she undergo a posterior foraminotomy and microdiscectomy on the C6 and C7 levels of her cervical spine. Dr. Johnson performed the surgery on February 7, 2008.

After Brenda awoke from the anesthesia used during the surgery, she experienced severe pain in her right arm that began in her shoulder and extended to the tips of her fourth and fifth fingers. Brenda immediately complained to the nurses about her pain. She rated the pain as a five or a six on a ten-point pain rating scale and described that it felt like she was holding on to an electric fence.

The nurses wheeled Brenda, who was still on her recovery bed, to the "step-down" (i.e., recovery) room, sat Brenda up, and moved her to a chair. During this move, the nurses noticed that the back of Brenda's neck was unusually swollen, and they seemed alarmed about this swelling. The nurses called Dr. Johnson about the swelling and the pain in Brenda's right arm.

Dr. Johnson did not examine Brenda and did not ask one of his colleagues to follow up with her. Instead, Dr. Johnson told the nurses to use an ice pack for the swelling, provide Brenda with a pillow to elevate her right arm, and offer her pain medication.

When the pain did not subside, the nurses again called Dr. Johnson, who told the nurses to offer Brenda pain medication and then to discharge her. Brenda took pain and anti-nausea medication and then left CNOS about two hours after her surgery.

Brenda continued to experience severe pain and sensitivity to touch and air in her right arm. Brenda saw Dr. Johnson on February 11, 2008.

Dr. Johnson believed that Brenda was suffering from a pinched ulnar never in her forearm and he prescribed anti-inflammatory medications and ice packs.

Brenda saw Dr. Johnson again on March 3, 2008. During that appointment, Dr. Johnson again told Brenda that she was suffering from a pinched ulnar nerve. He ordered an electromyogram (EMG). Dr. Pary, a CNOS physician, completed the EMG with Brenda on March 19. Dr. Johnson called Brenda after the EMG and said that she needed to have an MRI.

On March 31, 2008, Brenda had an MRI and then met with Dr. Johnson. Dr. Johnson appeared anxious when ...


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