Figueroa v. Orleans


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Docket Number: 2009-CA-00556-COA
Court of Appeals: Opinion Link
Opinion Date: 07-20-2010
Opinion Author: Lee, P.J.
Holding: Affirmed.
Additional Case Information: Topic: Medical malpractice - Admission of deposition - M.R.C.P. 32(a)(1) - Directed verdict - Expert testimony - M.R.E. 702
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - MEDICAL MALPRACTICE
Trial Court: Date of Trial Judgment: 02-03-2009
Appealed from: Harrison County Circuit Court
Judge: Lawrence P. Bourgeois, Jr.
Disposition: JURY VERDICT FOR D
Case Number: A2402-00-00144
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Wilfredo Figueroa and Myrna Figueroa




 FLOYD J. LOGAN



  
  • Appellant #1 Brief
    		•
    Appellee: F. Steven Orleans, M.D., Frank G. Martin, M.D., Regional Digestive Specialists, P.C., and The Surgical Clinic of Biloxi, P.A. ROSS DOUGLAS VAUGHN, JAMES H. HEIDELBERG, STEPHEN W. BURROW, JESSICA M. DUPONT  
    Synopsis provided by:

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    Topic: Medical malpractice - Admission of deposition - M.R.C.P. 32(a)(1) - Directed verdict - Expert testimony - M.R.E. 702
    Summary of the Facts: In 2000, Wilfredo Figueroa and his wife, Myrna Figueroa, filed a medical-malpractice action against Dr. Steven Orleans, Dr. Frank Martin, Regional Digestive Specialists, P.C., and The Surgical Clinic of Biloxi, P.A. The Figueroas allege that the negligent care Wilfredo received during June 1998 resulted in permanent injuries. At the conclusion of the Figueroas’ case, Dr. Martin and the Surgical Clinic were granted a directed verdict. The jury returned a verdict in favor of Dr. Orleans and Regional Digestive Specialists. The Figueroas appeal.
    Summary of Opinion Analysis: Issue 1: Deposition The Figueroas argue that the trial court erred in refusing to admit the deposition of Dr. Orleans into evidence. The Figueroas called Dr. Orleans as an adverse witness. After Dr. Orleans was questioned by his trial counsel and cross-examined again by the Figueroas’ trial counsel, the Figueroas’ counsel sought to introduce Dr. Orleans’s entire deposition for purposes of impeachment. The trial court denied the admission of the deposition into evidence but marked it for identification purposes only. M.R.C.P. 32(a)(1) states that a deposition may be used to contradict or impeach the testimony of the deponent as a witness. The deposition was used extensively in an attempt to impeach Dr. Orleans. According to the record, the Figueroas used the deposition of Dr. Orleans over fifteen times during Dr. Orleans’s examination, including several instances where Dr. Orleans read passages from his deposition. The jury heard the pertinent information contained in the deposition through the Figueroas’ liberal use of the deposition during their case-in-chief. The trial court did not abuse its discretion in denying the Figeuroas’ request to admit Dr. Orleans’s deposition into evidence. Issue 2: Directed verdict The Figueroas argue that the trial court erred in directing a verdict in favor of Dr. Martin, because Dr. Martin failed to exercise reasonable care in his decision to perform the exploratory surgery and gallbladder removal. To establish a prima facie case for medical negligence, a plaintiff must prove the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; the defendant failed to conform to that required standard; the defendant’s breach of his duty was a proximate cause of the plaintiff’s injury; and the plaintiff was injured as a result. Expert testimony is required to identify and articulate the requisite standard that was not complied with. Although there is no per se rule that an expert in a particular medical specialty may only testify regarding that specialty, the expert must be sufficiently familiar with the standard of care by knowledge, skill, experience, training, or education as required by M.R.E. 702. The Figueroas’ expert admitted that: he was not being offered as an expert in general surgery; he did not possess any surgical credentials or hold any surgical board certifications; he did not follow current surgical literature; he never practiced under the standard of care owed by a surgeon to a patient; and he was never in a position to decide whether or not to perform surgery. During his testimony, he failed to articulate the applicable standard of care in regard to Dr. Martin and how Dr. Martin breached that standard. The Figueroas had no other testimony or evidence regarding Dr. Martin’s purported negligence. Thus, the trial court properly granted a directed verdict in favor of Dr. Martin.


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