Hubbard, et al. v. Wansley
| Docket Number: | 2005-CA-01055-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 04-26-2007 Opinion Author: COBB, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Expert witness - M.R.E. 702 - Standard of care - Layman exception - Designation of expert witness - Causation Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ. Dissenting Author : DIAZ, J. Dissent Joined By : EASLEY AND GRAVES, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 01-25-2005 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: Granted Appellee's Motion for Summary Judgment Case Number: A2402-99-00068 |
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| Note: | Motion to Strike filed by appellee is dismissed as moot. | |
| Party Name: | Attorney Name: | |||
| Appellant: | RUBY ANGELA HUBBARD AND PINKIE J.
HUBBARD, INDIVIDUALLY AND ON BEHALF
OF AND IN HER CAPACITY AS GUARDIAN OF
HER DAUGHTER RUBY ANGELA HUBBARD |
R. ALLEN SMITH, JR.
LANCE PAUL BRADLEY |
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| Appellee: | BILLY M. WANSLEY, M.D. | MARY MARGARET KUHLMANN GEORGE F. BLOSS, III |
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| Topic: | Medical malpractice - Expert witness - M.R.E. 702 - Standard of care - Layman exception - Designation of expert witness - Causation |
| Summary of the Facts: | Ruby Hubbard filed an action against Dr. Billy Wansley and Biloxi Regional Medical Center in the Harrison County Circuit Court. Three years later, the case was removed to the United States District Court for the Southern District of Mississippi. After the dismissal of BRMC as a defendant, the case was remanded to the Harrison County Circuit Court. Prior to the remand, Dr. Wansley filed three motions for summary judgment. These motions were carried forward from the federal district court to the circuit court on remand. The trial court orally granted Dr. Wansley’s first and third motions for summary judgment. Subsequently, Hubbard successfully moved for extra time in which to designate an expert. The trial court issued a written Memorandum Opinion and Order on the summary judgment motions which it had granted orally in July, and entered final judgment with prejudice as to Dr. Wansley’s first and third motions. Hubbard appeals. |
| Summary of Opinion Analysis: | Issue 1: Expert witness Dr. Wansley’s motion for summary judgment challenged Hubbard’s use of Dr. Lynn Stringer as an expert witness on the basis that Dr. Stringer, a board certified neurosurgeon, was not qualified to offer an opinion as to the standard of care of a physician practicing internal medicine. The trial court agreed, and Hubbard argues this was error. In a medical malpractice suit, not only must the expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries. A witness may testify as an expert under M.R.E. 702 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 and if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. It is generally not required that an expert testifying in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying. Satisfactory familiarity with the specialty of the defendant doctor is, however, required in order for an expert to testify as to the standard of care owed to the plaintiff patient. Although Dr. Stringer testified that he had treated patients with subarachnoid hemorrhages, he did not intimate that he knew how an internal medicine practitioner would treat such a patient. The specialty of internal medicine is an independent field of medicine. Dr. Stringer’s knowledge, skill, training, education, and experience are in the area of neurosurgery. While it is obvious that Dr. Stringer is an experienced and knowledgeable neurosurgeon and that he has experience in treating subarachnoid hemorrhages as a neurosurgeon, Hubbard has offered no evidence that Dr. Stringer has any familiarity with the standard of care that would be required of an internal medicine specialist in treating a subarachnoid hemorrhage. Therefore, it cannot be said that the trial court abused its discretion in holding that Dr. Stringer was not qualified to testify as to the standard of an internal medicine practitioner. Hubbard also argues that Dr. Wansley should have been held to the standard of a neurosurgeon or neurologist because he assumed the duties of a neurosurgeon or neurologist when he treated Hubbard’s subarachnoid hemorrhage and failed to notify the consulting neurologist of Hubbard’s medical condition. A physician may be held to the standard of care of another specialty other than his own, if the physician assumes the duties of the specialty. Two common factors should be considered in determining whether a doctor has assumed the duties of another specialty: whether assurances were given by the doctor to the patient and whether consultations or referrals to a doctor of another specialty were, or should have been, made. In this case, there is no claim and no evidence that Dr. Wansley gave any specific assurances to Hubbard about the treatment of her subarachnoid hemorrhage. The crux of Hubbard’s argument is that her consulting neurologist was not contacted soon enough. However, Dr. Wansley fulfilled his duty to contact the neurologist emergently by ordering the consultation through the emergency room, where Hubbard was located at the time. Dr. Wansley gave the order for the neurologist to be consulted immediately after hearing about Hubbard’s condition. Therefore, Dr. Wansley should not have been held to the standard of a neurologist or neurosurgeon. Issue 2: Layman exception Hubbard argues that she is not required to present expert testimony because Dr. Wansley’s conduct falls within the layman exception. Lay testimony is sufficient to establish only those things that are purely factual in nature or thought to be in the common knowledge of laymen. Dr. Wansley, while not present, did give orders over the phone to the emergency room doctors and nurses who were caring for Hubbard, and those orders included the consultation of the neurologist. The alleged negligence in this case does not fall under the layman’s exception. Issue 3: Designation of expert After Dr. Stringer was found to be unqualified to testify as to the standard of care, Hubbard filed a motion for extra time to designate an expert which the court granted. At a hearing on Hubbard’s motion to reconsider, the judge said that he had granted Hubbard’s motion for extra time to designate an expert inadvertently. Hubbard argues that she justifiably relied on the original order and that the order granting thirty extra days to designate an expert should stand. In effect, the trial court revoked its order granting Hubbard thirty extra days to designate an expert when it entered the written Memorandum Opinion and Order granting summary judgment. All Hubbard stood to lose by relying on the trial court’s order was the expenses of obtaining a new expert, and that does not justify depriving Dr. Wansley of the summary judgment granted him simply because of an obvious and admitted mistake of the trial court. Issue 4: Causation Hubbard argues that the court erred in finding that she failed to establish a causal link between her injuries and Dr. Wansley’s alleged negligence. Mississippi law does not permit recovery of damages because of mere diminishment of the chance of recovery. Recovery is allowed only when the failure of the physician to render the required level of care results in the loss of a reasonable probability of substantial improvement of the plaintiff’s condition. The language of Dr. Stringer’s affidavit is almost wholly conclusory on the issue of causation and gives very little in the way of specific facts and medical analysis to substantiate the claim that Hubbard had a greater than fifty percent chance of substantial recovery if she had received the optimal care of which Dr. Stringer spoke. In addition to the language of the affidavit being conclusory, it also seems to be an attempt to cure Dr. Stringer’s contradictory deposition testimony. Therefore, summary judgment was proper on the issue of causation, as Hubbard had not established a prima facie case. |
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