Sacks v. Necaise
| Docket Number: | 2006-CA-01068-COA Linked Case(s): 2006-CA-01068-SCT ; 2006-CA-01068-COA ; 2006-CT-01068-SCT ; 2006-CT-01068-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Standard of care - Daubert motion - M.R.E. 702 - Vicarious liability - Evidence of damages - Findings of fact Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING AND CHANDLER, JJ. Dissenting Author : GRIFFIS, J., with separate written opinion. Dissent Joined By : BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-23-2006 Appealed from: Hancock County Circuit Court Judge: Stephen Simpson Disposition: AFTER TRIAL, LOWER COURT ENTERED RULING FOR THE PLAINTIFFS. Case Number: 98-0253 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MATTHEW SACKS, M.D., AND THE MEDICAL
ONCOLOGY GROUP, P.A. |
THOMAS L. MUSSELMAN
STACIE ELIZABETH ZORN |
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| Appellee: | NANCY NECAISE, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF CHARLES FREEMAN, DECEASED | ROBERT W. SMITH |
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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: | Medical malpractice - Standard of care - Daubert motion - M.R.E. 702 - Vicarious liability - Evidence of damages - Findings of fact |
| Summary of the Facts: | Charles Freeman filed a complaint alleging medical malpractice against Dr. Matthew Sacks and The Medical Oncology Group, P.A. Freeman asserted in his complaint that MOG’s staff and Dr. Sacks, through vicarious liability, were negligent in the administration of the chemotherapy agents. Freeman died from causes unrelated to the injury, and his daughter, Nancy Necaise, was substituted as plaintiff. After a bench trial, the trial court found Dr. Sacks and MOG liable for injuries Freeman sustained in their care. The trial court awarded Necaise $217,334.36. Dr. Sacks and MOG appeal. |
| Summary of Opinion Analysis: | Issue 1: Standard of care Dr. Sacks and MOG argue that Necaise failed to show the requisite standard of care applicable to Dr. Sacks through the testimony of a qualified medical expert and, thus, failed to prove all the elements of medical negligence. Dr. Sacks argues that the standard of care for the care of a chemotherapy patient by a doctor should have been articulated through the testimony of a medical doctor rather than a nurse. However, the issue in this case was not negligence on the part of Dr. Sacks but rather the negligence of MOG’s staff. Dr. Sacks had a non-delegable duty to his patient to assure the medication he ordered was properly administered. If a doctor chooses to allow a nurse to perform a nondelegable duty, the doctor must accept responsibility if that duty is breached. As for the requisite standard of nursing care, all the experts agreed that the appropriate standard of nursing care requires a drug to be immediately discontinued upon discovery of swelling, pain, and/or a change in skin color. A registered nurse with experience in administering chemotherapy, testified for Necaise. Dr. Sacks and MOG argue that her testimony was unreliable and was based on unreliable assumptions and speculation. However, the evidence is sufficient to show a deviation from the standard of care. Dr. Sacks and MOG also argue that the trial court should have relied on the testimony of their nursing expert in determining whether the standard of care was breached. When sitting as the finder of fact, the trial judge has the sole authority for determining the credibility of witnesses. Here, the trial judge did not abuse his discretion in relying on one expert over the other. The trial court did not abuse its discretion in weighing the credibility of the witnesses to determine the cause of Freeman’s injury. This is sufficient to show that negligence in the administration of Taxol or monitoring thereafter was the proximate cause of Freeman’s injury. Dr. Sacks and MOG argue that even if Dr. Sacks breached the standard of care and proximately caused the alleged injury, Necaise failed to prove the actual harm or extent of damages that Freeman suffered. However, Necaise submitted bills from Freeman’s hospital stays and photographs of the extensive damage he suffered to his arm and testified that her father was in continuous pain and needed help performing basic tasks. Thus, the trial court’s finding of negligence was supported by the record. Issue 2: Daubert motion Necaise offered Pamela Jenner as an expert witness in the area of chemotherapy nursing.Dr. Sacks and MOG argue that Jenner was not an expert in the field because she had not practiced nursing in twenty years, had never administered the chemotherapy agents administered to Freeman, was not an advanced oncology certified nurse, and had never been accepted by another court as an expert in the field of chemotherapy nursing. Jenner practiced nursing from 1975 to 1985. She testified that she administered chemotherapy to hundreds of patients from 1975 to 1980 when she worked in a hospital’s cancer unit. She continued to care for chemotherapy patients on occasion from 1980 to 1985 when she worked as a private duty nurse. She has been a practicing attorney since 1986. Jenner had not been a practicing nurse in twenty years and was not a certified chemotherapy nurse. However, neither of these facts precluded her from testifying as to her knowledge on the subject. Jenner was a licensed nurse and was familiar with the current standards of chemotherapy administration. In fact, the defendants’ expert testified that the standard of care for a nurse had not changed since 1977. Therefore, the court did not err in admitting her testimony under M.R.E. 702. Dr. Sacks and MOG also argue that Jenner should not have been allowed to testify as to the cause of Freeman’s injury because such issues are outside a nurse’s expertise and should be determined by a medical doctor. The court did not abuse its discretion in allowing Jenner to give an opinion on the validity of a hypersensitive reaction theory. Jenner based her opinion on fourteen medical journal articles which were submitted to the court and defendants. Issue 3: Vicarious liability The law imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction and control of the physician. Dr. Sacks admitted that Nurse Byrd was under his direct supervision and control at the time Freeman was injured. Therefore, the trial court correctly concluded that Dr. Sacks was liable for any negligence that Byrd might have committed when she administered chemotherapy to Freeman. Issue 4: Evidence of damages Dr. Sacks and MOG argue that the court erroneously accepted Freeman’s $42,334 in medical bills as evidence of damages when most of the bills were related to unrelated pre-existing conditions. However, the trial court clearly made a distinction between the applicable and nonapplicable medical treatment in calculating damages. Issue 5: Findings of fact Dr. Sacks and MOG argue that the court relied on several erroneous findings of fact stated in his judgment. However, the erroneous findings cited by Dr. Sacks and MOG in their brief were either supported by the record or were in dispute. As to the facts in dispute, it is the job of the trier of fact, in this case, the judge presiding over the bench trial, to weigh the witnesses’ testimony. The trial judge did not abuse his discretion or reach a clearly erroneous decision in finding that the acts of Nurse Byrd, Dr. Sacks, and MOG were negligent. |
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