Cleveland, et al. v. Hamil, et al.


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Docket Number: 2010-CA-01527-COA
Linked Case(s): 2010-CA-01527-COA ; 2010-CT-01527-SCT ; 2010-CT-01527-SCT
Court of Appeals: Opinion Link
Opinion Date: 03-12-2013
Opinion Author: Maxwell, J.
Holding: On Motion for Rehearing; Reversed and Rendered in Part and Remanded
Additional Case Information: Topic: Wrongful death - Medical malpractice - Expert testimony - M.R.E. 702 - Standard of care - Medical causation - M.R.C.P. 26(f) - Failure to seasonably supplement discovery responses
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton and Fair, JJ.
Non Participating Judge(s): Barnes and James, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - WRONGFUL DEATH
Appealed from Court of Appeals
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
Note: The motion for rehearing is denied, and our original opinion is withdrawn with this opinion substituted in lieu thereof. The judgment of the Hinds County Circuit Court is reversed and rendered in part and remanded in part for further proceedings consistent with this opinion. On August 8, 2013, the Supreme Court held that the trial judge erred in allowing Dr. Silverman to testify to undisclosed opinions. The Supreme Court further held that because the plaintiff failed to establish a prima facie case with admissible evidence, the trial judge erred in failing to grant Dr. Cleveland judgment notwithstanding the verdict. It then reversed the judgment of the Court of Appeals in part and reversed the judgment of the Hinds County Circuit Court, and rendered judgment for all defendants.
  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



  
  • Appellant #1 Brief
  • Appellant #2 Brief
  • Appellant #3 Brief
  • Appellant #3 Reply Brief
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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  
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    Topic: Wrongful death - Medical malpractice - Expert testimony - M.R.E. 702 - Standard of care - Medical causation - M.R.C.P. 26(f) - Failure to seasonably supplement discovery responses
    Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Lanell Hamil brought a medical-malpractice suit against Dr. George Smith-Vaniz, Dr. Ken Cleveland, and Jackson HMA, alleging the wrongful death of her husband, Emmett Hamil. After the trial, the circuit court granted Jackson HMA a directed verdict on all claims against it except for vicarious liability for Dr. Smith-Vaniz, i.e, 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: In a medical malpractice action, expert testimony is necessary to prove both that the defendant physician failed to conform to the required standard of care and that this failure proximately caused the patient’s injuries. The expert must meet the requirements of M.R.E. 702. In this case, the plaintiff’s expert witness, who has practiced general and thoracic surgery for three decades, was not qualified to identify and articulate the requisite standard of care with which Dr. Smith-Vaniz had to comply. He was not tendered nor accepted as an expert in gastroenterology, the sub-specialty of internal medicine that Dr. Smith-Vaniz practices. In addition, he failed to establish sufficient knowledge of the specialty of gastroenterology. Without this testimony, Lanell failed to present a prima facie case against Dr. Smith-Vaniz and Jackson HMA. However, the expert witness was qualified to testify about the requisite standard of care Dr. Cleveland allegedly failed to conform with, as well as to testify about medical causation. But because the expert’s trial testimony differed vastly from the expert opinion Lanell disclosed in her interrogatory responses and the expert’s affidavit, Dr. Cleveland is entitled to a new trial. The failure to seasonably to supplement or amend a response as required by M.R.C.P. 26(f) is a discovery violation.


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