Winters v. Wright, Jr., et al.
| Docket Number: | 1999-CA-00483-SCT Linked Case(s): 1999-CA-00483-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-11-2003 Opinion Author: Smith, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Res ipsa loquitur instruction - Expert testimony - Vicarious liability instructions - Peremptory instruction - Leading questions - M.R.E. 611(c) - Conclusion Judge(s) Concurring: Waller, Cobb and Carlson, JJ Non Participating Judge(s): Diaz, J. Dissenting Author : Easley, J. Dissenting Author : Pittman, C.J. Dissent Joined By : Graves, J.; McRae, P.J., Joins in Part Dissenting Author : McRae, P.J. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 01-30-1999 Appealed from: Bolivar County Circuit Court Judge: Kenneth L. Thomas Disposition: The jury found in favor of all three remaining defendants, and judgment was entered on February 1, 1999. Case Number: 95-0069 |
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| Note: | WALLER, COBB, AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.; McRAE, P.J., JOINS IN PART. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Tammy Winters and David Winters |
ROBERT W. SMITH
JUDY M. GUICE |
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| Appellee: | Bennie B. Wright, Jr., M.D., Cleveland Clinic, P.A., and Bolivar County Medical Center | P. SCOTT PHILLIPS L. CARL HAGWOOD LEE DAVIS THAMES, JR. R. E. PARKER, JR. |
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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 - Res ipsa loquitur instruction - Expert testimony - Vicarious liability instructions - Peremptory instruction - Leading questions - M.R.E. 611(c) - Conclusion |
| Summary of the Facts: | Tammy Winters and her husband, David Winters, filed a complaint against Dr. Bennie Wright, Jr. and his employer, Cleveland Clinic, P.A., Bolivar County Hospital, and Cincinnati Sub-Zero Products, Inc. as a result of injuries Tammy sustained to her buttocks and thighs that she claims was caused by a Sub-Zero heating blanket utilized during surgery performed on her by Wright at the hospital. Prior to trial, plaintiffs settled their claim against Sub-Zero. The jury found in favor of all three remaining defendants, and Winters appeals. |
| Summary of Opinion Analysis: | Issue 1: Res ipsa loquitur instruction Winters argues that the court erred in refusing to grant a res ipsa loquitur instruction. The doctrine of res ipsa loquitur does not apply when, upon the whole case, there has been specific proof which discloses some reasonable explanation for the happening other than the negligence charged against the defendant. In this case Tammy offered expert testimony that the tissue was burned due to the heating pad, while Wright testified as to his contention that the injury suffered by Tammy was dead tissue resulting from loss of blood circulation. Since both sides to the dispute put forth evidence, the issue is a fact question for the jury, and a res ipsa loquitur instruction is inappropriate. Issue 2: Expert testimony Winters argues that the judge erred by not allowing the plaintiffs’ expert to testify regarding the standard of care for using the heating blanket. However, the expert did testify that he was familiar with the machine and that the instruction manual required a physician to prescribe the use and to dictate the temperature setting. Therefore, the plaintiffs were able to get their theory of the case as to the cause of her injuries before the jury, and any error was harmless. Issue 3: Vicarious liability instructions Winters argues that instructions granted on the potential vicarious liability of Wright were conflicting, because one inserts a knowledge requirement which is in conflict with the other and additionally, knowledge is not a prerequisite to a finding of vicarious liability. One of the instructions instructs the jury that Wright may be responsible for the negligence of nurses or technicians who were working under his direction and control or who he had a right to control, while the other instructs that Wright may be responsible for such negligence if he knew or should have known of such acts. While the bar is cautioned against using the second instruction, these two instructions are not in conflict under the facts of this case. If Wright had directed the acts or had a right to do so, then it follows that he knew or should have known about them. Issue 4: Peremptory instruction Winters argues that the court erred in refusing to grant a peremptory instruction regarding the impropriety of the use of the heating blanket, because the manual is prima facie evidence that the unit is a prescription device. The jury found no liability as to the hospital or Wright. Therefore, it would appear that the jury found either that her injury was not due to the heating blanket or that it was not negligence to have used it. The denial of the instruction was harmless in light of the fact that the jury heard testimony that the device was a prescription medical device. Issue 5: Leading questions Winters argues that the judge erroneously allowed the hospital and Wright to ask one another's witnesses leading questions. M.R.E. 611(c) provides that leading questions are permitted on cross-examination or when a party calls an adverse party or a witness identified with an adverse party. Given the fact that one of Wright's theories of defense was that if the jury determined the blanket was the cause of Tammy's injuries then the hospital, and not him, was at fault, the judge did not abuse his discretion. Issue 6: Conclusion Winters argues that the judge erred in not allowing witnesses to state affirmatively that Wright was in control of the operating room. Given the testimony in this case, plaintiffs’ theory regarding Wright being responsible for the operating room, and thus vicariously responsible for any injury to Tammy that might have been caused by others in the operating room, was before the jury. The judge did not err in precluding witnesses from providing a conclusion that lies more appropriately within the province of the jury. |
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