Griffin v. McKenney
| Docket Number: | 2002-CA-00353-COA Linked Case(s): 2002-CT-00353-SCT ; 2002-CA-00353-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-14-2003 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Evidence of alcohol abuse - Expert testimony - M.R.E. 701 - M.R.E. 702 - Exclusion of statement - Medical negligence instructions - Causation instruction - Informed consent instruction - Error of judgment standard - Weight of evidence Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers and Griffis, JJ. Dissenting Author : Irving, J. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 10-15-2001 Appealed from: Harrison County Circuit Court Judge: Robert H. Walker Disposition: JURY VERDICT IN FAVOR OF JEFFERSON C. MCKENNEY, M.D. Case Number: A2402-00-00003 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael L. Griffin and Angela Griffin |
ROBERT W. SMITH
J. D. LEE |
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| Appellee: | Jefferson C. McKenney, M.D. | HARRY R. ALLEN MARGARET P. MCARTHUR |
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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 - Evidence of alcohol abuse - Expert testimony - M.R.E. 701 - M.R.E. 702 - Exclusion of statement - Medical negligence instructions - Causation instruction - Informed consent instruction - Error of judgment standard - Weight of evidence |
| Summary of the Facts: | Michael and Angela Griffin sued Dr. Jefferson McKenney for medical malpractice. The jury returned a verdict for Dr. McKenney. The Griffins appeal, and McKenney cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Evidence of alcohol abuse The Griffins argue that the court improperly excluded evidence of Dr. McKenney’s alcohol use, because the fact that Dr. McKenney was admittedly addicted to alcohol during Michael's treatment was a fact of consequence because it tended to show that Dr. McKenney was impaired during the treatment and rendered negligent care. There was contradictory evidence on the question of whether or not the doctor was drinking during the plaintiff's treatment. The evidence that Dr. McKenney was admitted for inpatient alcohol treatment and of subsequent incidents involving his attempted treatment of patients while under the influence of alcohol was certainly relevant. The evidence tended to show that Dr. McKenney was drinking during his treatment of the plaintiff, and along with the other evidence created a jury question. Therefore, the court's contrary finding was error. However, the court acted within its discretion in finding that, without more evidence that Dr. McKenney was drinking during Michael's treatment, the evidence of his alcoholism, subsequent rehabilitation and attempts to treat patients while under the influence of alcohol was more prejudicial than probative, because the evidence would mislead the jury by inviting it to speculate from Dr. McKenney’s subsequent acts that he acted improperly in Michael’s treatment. Issue 2: Expert testimony The Griffins argue that Dr. McKenney's testimony was impermissible expert testimony by a lay witness. Where, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a Rule 702 opinion and not a Rule 701 opinion. The Griffins argue that the court allowed Dr. McKenney to list his educational background, training and experience as a general surgeon. Expert testimony can include facts that are scientific, technical or specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. Although the testimony of which the Griffins complain was comprised of technical knowledge outside the range of knowledge of an ordinary layperson, Dr. McKenney was testifying as a treating physician who is also a party to the case and the testimony was part of Dr. McKenney's description of the surgery and of his care of Michael and was limited to that context. Therefore, the testimony complained of by the Griffins was permissible lay testimony by a treating physician who is a party to the case. The testimony was solely explanatory of Dr. McKenney's treatment of Michael and of his records and nursing records about Michael's care. However, some of Dr. McKenney's testimony on redirect examination is troublesome when the court allowed Dr. McKenney, a lay witness, to opine as to the symptoms Michael would have presented had the bowel been perforated during the surgery. Because the expert testimony was largely cumulative of that of Dr. McKenney’s expert witnesses, the error does not warrant reversal. Issue 3: Exclusion of statement The Griffins argue that the court erred in excluding a statement by another doctor as testified to by a nurse referring to Dr. McKenney as "that stupid son-of-a-bitch!", because the statement was excepted from the hearsay rule either as an excited utterance or as a present sense impression. The Griffins admit that the "stupid son-of-a-bitch" statement expressed the doctor’s opinion on the quality of care rendered by Dr. McKenney. Therefore, the court acted within its discretion in excluding the statement based on its prior ruling excluding expert testimony by that particular doctor, and on the plaintiff's declination to open the door to expert testimony by the doctor. Issue 4: Medical negligence instructions The Griffins argue that they are entitled to a new trial because of three erroneous medical negligence jury instructions. If the instructions, read as a whole, fairly announce the law of the case and create no injustice, there is no reversible error. Viewing the instructions as a whole in this case, the jury was properly instructed that it could find for the Griffins on the ground that Dr. McKenney rendered negligent postoperative care. Issue 5: Causation instruction The Griffins argue that a causation instruction was error because there was no evidence that Michael's perforations and abscesses were caused by a disease process. However, one of Dr. McKenney’s experts testified that Michael's abscesses were most probably caused by the disease of pancreatitis and that his bowel perforations were caused by a process whereby the bowel undergoes necrosis and gangrene and perforation when its blood supply is restricted. Therefore, the instruction was supported by the evidence. Issue 6: Informed consent instruction The Griffins argue that Dr. McKenney’s informed consent instruction was an improper statement of law, because it allowed the jury to consider whether Michael was advised of the risks of bowel injury through the "informed consent to surgery" form. In Mississippi, consent to a medical procedure may be implied when a patient is fully informed of the known risks that would be material to a prudent patient in determining whether to undergo the proposed treatment. Thus, for consent, no emergency need exist as long as the patient was informed that the procedure was a known risk of the proposed treatment. Therefore, the informed consent instruction did not misstate the law. Issue 7: Error of judgment standard The Griffins argue that the court erroneously instructed the jury. During voir dire, the court informed the jury panel that a competent physician is not automatically liable for a mere error of judgment, mistake in diagnosis, or the occurrence of an undesirable result. Mississippi no longer adheres to the "mere error of judgment" standard. Although the court misstated the law, the court later informed the panel that the court's remarks were simply general instructions and that they would be given the exact law, through jury instructions, at the conclusion of the case. Not only did the jury indicated that it understood, but the formal jury instructions, taken as a whole, properly stated the law of this case. Therefore, the court's error does not require reversal. Issue 8: Weight of evidence The Griffins argue that there was a failure of evidence supporting the defense theories of causation. In a medical malpractice case, the plaintiff has the burden of proof to show that the defendant physician breached the standard of care. Dr. McKenney's experts testified that Dr. McKenney did not breach the standard of care, and offered theories based on a reasonable degree of medical probability as to how Michael's injuries developed. The evidence was such that the jury could reasonably find that the Griffins failed to prove by a preponderance of the evidence that Dr. McKenney damaged Michael's bowel. |
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