Ly v. Larson
Diep Ly sued anesthesiologist Dr. David Larson for persistent back pain and leg numbness following Larson’s administration of five percent Lidocaine as a spinal anesthetic for a dilation and curettage (D & C) procedure necessitated by a miscarriage the day before. The jury returned a defense verdict. It was undisputed at trial that while Larson told Ly her choice of spinal, as distinct from general, anesthesia carried with it the risk of “back pain,†he did not inform Ly that Lidocaine, as distinct from another spinal anesthetic, Marcaine, carried with it an elevated risk of transient neurologic syndrome (TNS), which Ly would later claim as the cause of her back pain and leg numbness. The sole question on appeal is whether substantial evidence supports the jury’s express finding that Ly gave Larson her informed consent for the spinal anesthesia that used five percent Lidocaine.
We affirm the judgment entered in the wake of the defense verdict. The jury heard evidence from which it could reasonably infer that Marcaine, which can last up to five hours, was just not a viable option for Ly’s D & C procedure, which was expected to be over in a matter of minutes. Marcaine can take up to five hours to wear off and commonly requires patients to remain several hours with a urinary catheter. The jury also heard conflicting evidence concerning just how much Lidocaine increases the risk of TNS, including evidence that Lidocaine-caused TNS is practically unheard of after 10 days. Under these circumstances, the jury could reasonably conclude the potential for TNS as a result of the use of Lidocaine was reasonably subsumed in telling Ly of the potential for back pain as the result of a spinal anesthetic.
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