Hartel v. Pruett
| Docket Number: | 2007-CA-00173-SCT Linked Case(s): 2007-CA-00173-COA ; 2007-CA-00173-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-13-2008 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Timely disclosure of medical articles - M.R.C.P. 26(f)(1) - Reliability of medical authority - M.R.E. 803(18) - Exclusion of videotape deposition - M.R.C.P. 32(a) - M.R.E. 801 - Expert testimony - Directed verdict - Vicarious liability - Weight of evidence - Standard of care Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Lamar, JJ. Dissenting Author : Diaz, P.J., and Graves, J., without separate written opinion. Procedural History: Jury Trial; Directed Verdict Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 06-30-2005 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: After all parties rested, the Circuit Court of Harrison County, Mississippi, granted a directed verdict for Spectrum Emergency Care, Inc. (EM Care). The jury subsequently returned a verdict in favor of Dr. Pruett and Biloxi Regional Medical Center. Case Number: A-2402-99-00178 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | BETTY G. HARTEL AND HUSBAND, WALDO HARTEL |
L. CHRISTOPHER BREARD |
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| Appellee: | JACK B. PRUETT, M.D., SPECTRUM EMERGENCY CARE, INC. d/b/a SEC/EM CARE AND BILOXI REGIONAL MEDICAL CENTER a/k/a BILOXI HMA, INC. | MARK P. CARAWAY; L. CLARK HICKS, JR.; LYNDA CLOWER CARTER | ||
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 - Timely disclosure of medical articles - M.R.C.P. 26(f)(1) - Reliability of medical authority - M.R.E. 803(18) - Exclusion of videotape deposition - M.R.C.P. 32(a) - M.R.E. 801 - Expert testimony - Directed verdict - Vicarious liability - Weight of evidence - Standard of care |
| Summary of the Facts: | Betty and Waldo Hartel filed a medical malpractice suit against Dr. Jack Pruett, an emergency room physician who purportedly failed to prescribe the proper antibiotics for Betty, and Spectrum Emergency Care, Inc., the provider of emergency room physicians to Biloxi Regional Medical Center. A second amended complaint added Biloxi Regional as a defendant, alleging that Biloxi Regional was liable for Dr. Pruett’s negligent acts under the doctrine of respondent superior. Biloxi Regional’s answer asserted cross-claims against Dr. Pruett and EM Care for contractual and common-law indemnification. When the Hartels rested at trial, EM Care moved for a directed verdict claiming that the Hartels had failed to present any evidence of an employment relationship between Dr. Pruett and EM Care. The circuit court granted EM Care’s motion for directed verdict. The case was then submitted to the jury, and the jury returned a verdict in favor of Dr. Pruett and Biloxi Regional. The Hartels appeal. |
| Summary of Opinion Analysis: | Issue 1: Evidentiary rulings Six days prior to trial, counsel for the Hartels sent a fax to counsel for defendants providing the names of several medical articles which might be used during the Hartels’ case-in-chief. Dr. Pruett and EM Care filed a joint motion in limine seeking to exclude these medical articles because they were not timely disclosed. The circuit court ruled that because the Hartels had failed to seasonably disclose their intention to use the medical articles at trial, the Hartels’ expert witnesses could not rely upon or refer to them on direct examination. The Hartels argue that they were required only to disclose the medical articles prior to trial, that their disclosure was not untimely, and that the defendants were not prejudiced. Under M.R.C.P. 26(f)(1), seasonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit. If counsel for the Hartels had disclosed the medical articles to the defendants shortly after gathering them, the supplementation may have been seasonable. However, the complexity of this case and the importance of the subject medical articles to the Hartels’ case support the circuit court’s finding that admission six days before trial would have prejudiced the defendants. The Hartels argue that the circuit court abused its discretion by not allowing them to use a New England Journal of Medicine article concerning acute diverticulitis to cross-examine a defense expert. The expert testified that the Journal was “well respected” in the medical community, but he refused to concede that it was a reliable authority. Neither the expert nor any other expert witness testified that the Journal was a “reliable authority” as required for admission under M.R.E. 803(18). Therefore, the court did not abuse its discretion in ruling that the Journal article could not be used. The Hartels also argue that the court erred in allowing the defense expert to refer to a text, “Griffith’s 5 Minute Clinical Consult,” because the text was not disclosed prior to trial. However, counsel for the Hartels opened the door by questioning Dr. Pruett with an open-ended challenge to “cite me one article[,]” he referenced from “Griffith’s 5 Minute Clinical Consult.” The Hartels argue that the court erred in denying their request to play an edited version of Dr. Pruett’s videotape deposition at trial instead of calling Dr. Pruett as an adverse witness. Under M.R.C.P. 32(a), a party may enter portions of an opposing party’s deposition into evidence without calling the opposing party as a witness, provided that the portions of the deposition are admissible under M.R.E. 801. Thus, the circuit court erred in refusing to allow the Hartels to play the edited video deposition of Dr. Pruett. However, the error was harmless, because the Hartels were permitted to examine Dr. Pruett and then impeach him with his videotaped deposition statements on cross-examination, if inconsistent with his live testimony. The Hartels argue that it was error to allow Dr. Pruett and another doctor to testify regarding antibiotics other emergency room physicians prescribe for acute mild diverticulitis. Because their testimony was based on personal observation and knowledge, the Hartels’ contention that no proper foundation was laid lacks merit. Moreover, this testimony was within their expert designations, as it was given for the purpose of establishing the standard of care. Issue 2: Directed verdict The circuit court granted EM Care’s motion for a directed verdict because the record lacked any mention of EM Care. The Hartels argue that EM Care admitted in its pleadings that it was Dr. Pruett’s employer and, therefore, could be held vicariously liable under the doctrine of respondeat superior if Dr. Pruett was deemed negligent in treating Betty. In its answer to Biloxi Regional’s cross-claim, EM Care merely admitted that it had a “duty of indemnification” to Biloxi Regional for the negligence of Dr. Pruett. In Biloxi Regional’s motion for separate trial, later joined by EM Care, it is asserted that EM Care “contracted with [Biloxi Regional] to furnish physicians to staff the Emergency Department at the hospital.” This statement does not constitute an admission by EM Care that it employed Dr. Pruett. In addition, no evidence was presented at trial linking EM Care to Dr. Pruett. Issue 3: Weight of evidence The Hartels argue that Dr. Pruett breached the standard of care in failing to prescribe an antibiotic for Betty that was effective against anaerobic bacteria, in addition to Cipro. The Hartels’ experts testified that Dr. Pruett’s treatment of Betty failed to satisfy the standard of care because Betty was not prescribed antibiotics for both aerobic and anaerobic bacteria. Not only was evidence presented by Biloxi Regional and Dr. Pruett that the appropriate standard of care was met, their experts refuted the Hartels’ experts’ opinions. Given that conflicting testimony, and weighing the evidence in the light most favorable to the verdict, the jury verdict in favor of Dr. Pruett and Biloxi Regional does not sanction an unconscionable injustice. |
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