Cleveland, et al. v. Hamill
| Docket Number: | 2010-CA-01527-COA Linked Case(s): 2010-CA-01527-COA ; 2010-CT-01527-SCT ; 2010-CT-01527-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-25-2012 Opinion Author: Maxwell, J. Holding: Reversed and rendered in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Wrongful death - Expert testimony - M.R.E. 702 - Standard of care - Discovery violations - M.R.C.P. 26(b)(4)(a)(i) - M.R.C.P. 26(f)(1)(B) & 26(f)(2)(A) - Seasonable supplementation - Trial by ambush Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton and Fair, JJ. Non Participating Judge(s): Barnes, J. Concurs in Result Only: Russell, J., Concurs in Result Only Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 06-07-2010 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: JURY VERDICT OF $1,128,050 IN FAVOR OF APPELLEE Case Number: 251-07-34CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Ken E. Cleveland, George T. Smith-Vaniz, M.D., and Jackson HMA, Inc., d/b/a Central Mississippi Medical Center |
MARK P. CARAWAY
CORY LOUIS RADICIONI
WHITMAN B. JOHNSON III
LORRAINE WALTERS BOYKIN
STEPHEN P. KRUGER
JAN F. GADOW
KRISTOPHER ALAN GRAHAM |
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| Appellee: | Lanell Hamil, Individually and on Behalf of the Wrongful Death Beneficiaries of Emmett O. Hamil, Deceased, who are Entitled to Recover Under the Wrongful Death and Survival Statute | ALTON EARL PETERSON LARRY STAMPS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Expert testimony - M.R.E. 702 - Standard of care - Discovery violations - M.R.C.P. 26(b)(4)(a)(i) - M.R.C.P. 26(f)(1)(B) & 26(f)(2)(A) - Seasonable supplementation - Trial by ambush |
| Summary of the Facts: | Lanell Hamil brought a medical-malpractice suit against Dr. George Smith-Vaniz, Dr. Ken Cleveland, and Jackson HMA Inc., alleging the wrongful death of her husband Emmett Hamil. At the close of Lanell’s case-in-chief, the circuit court granted Jackson HMA a directed verdict on all claims against it except for vicarious liability for Dr. Smith-Vaniz—meaning it would only be deemed liable if Dr. Smith-Vaniz was found liable. The jury found for Lanell against all three defendants, without apportioning fault among them, and awarded her $500,000 in non-economic damages and $628,050 in economic damages. The defendants appeal. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony For Lanell to make a prima facie case of medical malpractice – after first establishing the doctor-patient relationship and its attendant duty - she had to also establish the requisite standard of care, the defendant physician’s failure to conform to the standard of care, that the physician’s noncompliance with the standard of care caused Emmett’s injury, and the extent of damages. When proving these elements in a medical malpractice suit, expert testimony must be used to identify and articulate the requisite standard that was not complied with and to establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries. In this case, Lanell’s expert witness was not qualified to identify and articulate the standard of care required of Dr. Smith-Vaniz. Pursuant to M.R.E. 702, a witness may testify as an expert to assist the trier of fact to understand the evidence or to determine a fact issue if the witness is qualified as an expert by knowledge, skill, experience, training, or education. Lanell’s attorney tendered the witness as an expert in thoracic and cardiovascular surgery but not as an expert in gastroenterology, the sub-specialty of internal medicine that Dr. Smith-Vaniz practices. Expert qualification in one specialty does not qualify the expert to testify about the standard of care in another specialty. And the witness in this case failed to establish sufficient knowledge of the specialty of gastroenterology. When he was questioned about his knowledge of gastroenterology, he testified he is not a gastroenterologist, has “not really” had any gastroenterology training, has not participated in any continuing medical education in that area, has never performed any gastroenterologist-specific procedures, and has never been consulted as a gastroenterologist. Thus, he should not have been allowed to testify as to the standard of care of a gastroenterologist. Without this expert testimony, Lanell was unable to present a prima facie case against Dr. Smith-Vaniz and Jackson HMA. Thus, judgment is rendered in their favor. Issue 2: Discovery violation Under M.R.C.P. 26(b)(4)(a)(i), Lanell was required “to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Under M.R.C.P. 26(f)(1)(B) and 26(f)(2)(A), she was required to seasonably supplement her responses and amend prior incorrect responses. The failure to comply with these rules is a discovery violation that may warrant sanctions, including exclusion of evidence. In this case, Dr. Cleveland learned for the first time at trial that Lanell’s previous discovery responses were incorrect and incomplete. On the witness stand, Lanell’s expert witness withdrew his previous opinion based on information he learned from Lanell’s counsel the night before trial and conceded his affidavit omitted any discussion about Emmett’s hemoglobin or hematocrit levels as an indication of an “evolving” ulcer. Because Lanell’s failure to comply with Rule 26(f) resulted in a trial by ambush, Dr. Cleveland is entitled to a new trial. |
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