Burr, et al. v. Miss. Baptist Med. Ctr.
| Docket Number: | 2003-CA-01551-SCT Linked Case(s): 2003-CA-01551-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-16-2005 Opinion Author: Dickinson, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Medical malpractice - Closing argument - Jury instructions - Definition of medicare - Admission of testimony - Medicare - Collateral source rule - Underlying facts of accident - Weight of evidence Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson and Randolph, JJ. Non Participating Judge(s): Waller, P.J., and Diaz, J. Concurs in Result Only: Graves, J. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 12-23-2002 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: The jury returned a verdict for the defendant. Case Number: 251-00-1295CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | Patricia A. Burr, Bascom Ray Burr, Jr. and Angela Burr Moore |
GLENN S. SWARTZFAGER,
WILLIAM L. WALLER, SR. |
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| Appellee: | Mississippi Baptist Medical Center | MARTIN R. JELLIFFE, EUGENE R.NAYLOR, BRENDA CURRIE JONES |
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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 - Closing argument - Jury instructions - Definition of medicare - Admission of testimony - Medicare - Collateral source rule - Underlying facts of accident - Weight of evidence |
| Summary of the Facts: | Ray Burr’s widow, Patricia, and their two children, Bascom Ray Burr, Jr. and Angela Burr Moore brought suit against the Mississippi Baptist Medical Center in Hinds County Circuit Court, claiming that the hospital was responsible for the nurses’ negligence which led to Ray’s vomiting which, in turn, resulted in aspiration pneumonia from which he eventually died. The jury returned a verdict in favor of the hospital, and the circuit court entered judgment. The Burrs appeal. |
| Summary of Opinion Analysis: | Issue 1: Closing argument The Burrs argue that the defense made an improper and/or prejudicial closing argument by referring to the hospital’s corporate status. The comments were made only after counsel for the Burrs attempted to align the hospital with other non-religiously affiliated, for-profit corporations. Not only did the Burrs’ counsel open the door for comment by the hospital’s counsel regarding corporate status, but the Burrs failed to make a contemporaneous objection at trial as to any alleged prejudicial effect of the statements. Issue 2: Jury instructions The Burrs argue that two jury instructions were improperly given, one because it lacked evidentiary support and the other because it was erroneous as a matter of law. The defense is entitled to jury instructions which present its theory of the case, if supported in the evidence. The record contains evidentiary support for the first instruction complained of by the Burrs. The second instruction included a definition of negligence. The Burrs argue that the court’s use of “a person of ordinary prudence” instead of “a reasonably prudent person” was erroneous as a matter of law because the phrase changes the entire context of the definition of negligence. The Burrs have failed to note a single case where “a person of ordinary prudence” has been held to evoke a standard of care that differs from that of “a reasonable and prudent person.” There is no error in the use of “a person of ordinary prudence” in the jury instruction defining negligence. Issue 3: Admission of testimony The Burrs argue that the court erred in allowing defense counsel to elicit testimony during the trial on the existence of Medicare and the underlying facts of the automobile accident. The collateral source rule in Mississippi provides that compensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the defendant in mitigation or reduction of damages. The Burrs’ counsel raised the issue of Social Security disability to establish loss of income which was a portion of their claim for damages. The hospital was entitled to cross-examine Patricia Burr on the net amount of her husband’s monthly Social Security check, particularly given that her direct testimony differed from her deposition testimony. None of the attorneys or witnesses discussed which particular bills Medicare paid, and the hospital made no attempt to persuade the jury that payments from Medicare should serve to reduce the amount of damages awarded. Consequently, the collateral source rule does not apply. With regard to the facts of the accident, the judge ruled that the hospital could cross-examine Mrs. Burr on the cause of the accident and the surrounding circumstances but could not cross-examine her on the condition of any other victims from the wreck. The judge did not abuse his discretion in allowing limited testimony on the seriousness of the car accident which directly resulted in Mr. Burr’s hospitalization. Issue 4: Weight of evidence A review of the trial transcript reveals a sufficient basis for the jury’s verdict. This is a complicated case alleging medical negligence. Evidence and reasonable theories supporting both sides were presented to the jury. As such, allowing the jury verdict to stand will not result in an unconscionable injustice. |
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