Scafide v. Bazzone, et al.
| Docket Number: | 2004-CA-01658-COA Linked Case(s): 2004-CA-01658-COA ; 2004-CT-01658-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-12-2006 Opinion Author: SOUTHWICK J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Duty of care - Patient-physician relationship - Prejudicial information - Judicial misconduct Judge(s) Concurring: MYERS, P.J., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): LEE, P.J. Dissenting Author : CHANDLER, J. Dissent Joined By : KING, C.J. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 03-24-2004 Appealed from: Jackson County Circuit Court Judge: Dale Harkey Disposition: DIRECTED VERDICT FOR DR. BAZZONE, JURY VERDICT FOR DR. GODSEY Case Number: CI-98-0078(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | ART SCAFIDE, INDIVIDUALLY, AND AS
ADMINISTRATOR OF THE ESTATE OF MARLENE
E. GOSS, DECEASED |
JOHN L. HUNTER, C. VICTOR WELSH |
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| Appellee: | VICTOR T. BAZZONE, M.D., AND JOHN W. GODSEY, M.D. | ELIZABETH CLAIRE BARKER, JOHN A. BANAHAN, STEPHEN GILES PERESICH, MELINDA OWEN JOHNSON |
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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: | Wrongful death - Duty of care - Patient-physician relationship - Prejudicial information - Judicial misconduct |
| Summary of the Facts: | The administrator of an estate brought suit against four physicians seeking damages for the allegedly wrongful death of their patient. The plaintiff’s allegation was that the deceased had been misdiagnosed as having a malignant brain tumor and received radiation treatment that in fact caused her death. During trial, the court against two of the doctors, a directed verdict was granted for one defendant. The jury later returned a verdict in favor of the other physician. The heirs appeal. |
| Summary of Opinion Analysis: | Issue 1: Duty of care In granting a directed verdict for the one physician, the court held that no duty arose from the physician’s telephone conversation about treatment based on orally described medical evidence or from the physician’s subsequent interpretation of the MRI because he intended the review of records for his own purposes and not to affect the patient’s treatment. The plaintiffs argue that the court was stating that expert medical opinions were needed to define the duty. However, the better interpretation of the judge’s statement to be that even if a duty existed towards the decedent by the physician, there must be expert testimony that what he did was a breach of that duty. On the facts which are presented, a doctor responded to a request for advice from the treating physician. The doctor was willing then to see the patient, but she did not keep her appointment. Not having been formally consulted nor employed to read the MRI, the doctor nonetheless later did look at it. If that examination of the MRI, or for that matter the earlier telephone advice that responded just to oral descriptions of symptoms, breached a standard of care, then the negligence was performed by someone who was a volunteer. The concept of duty is grounded in a legal obligation being owed to a specific party. Determining whether a duty is owed is approached by asking whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct, rather than focusing solely on the level of relationship between parties. In most cases, the absence of the relationship does prevent the creation of a duty. However, where the traditional tort elements can be proven, a prima facie case for negligence against a physician can be maintained absent a doctor-patient relationship. In this case, without seeing a patient or having any other personal knowledge, the doctor gave an opinion that serves the public policy purpose to encourage and not discourage such conversations. The followup to the conversation was to be an examination by the doctor. That exam never occurred. No duty by the doctor arose from this informal consultation. The plaintiffs argue that it does not matter in tort law that the patient cancelled her appointment with the doctor, because the doctor’s duties once he decided to look at the MRI are the same whether she was a patient or not, which was a duty to use the proper standard of care and advise of any new opinion. However, doctors and others do not by the force of tort law have an obligation to volunteer their assistance. A physician is under no duty to answer the call of one who is dying and might be saved. The plaintiffs also argue that the court’s earlier denial of summary judgment for this doctor is at odds with the later order that granted a directed verdict. There is no principle of Mississippi law that the refusal to grant a summary judgment bars a later directed verdict on the same grounds. The facts may have been more clearly shown to the trial judge during trial than he believed them to be at the time of the summary judgment motion. Issue 2: New trial The plaintiffs argue that a new trial is warranted because an incorrect page of a deposition was displayed on the first day of testimony. The court gave the jurors a remedial instruction and each juror had to affirm that any information seen on the last slide displayed would be disregarded. The information displayed on the slide was unrelated to the issues of the case and did not affect the fairness of the trial. They also argue that a new trial is warranted because of judicial misconduct which occurred when the trial judge and former Supreme Court Justice Chuck McRae who attended the trial one day exited the courtroom and had a conversation that lasted a few minutes. No reason is given for the appearance of the former judge other than that he knew a defendant from their once playing football together. There is no basis for reversal as there is no prejudice nor sufficiently prompt objection. |
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