Berry v. Patten
| Docket Number: | 2009-CA-01441-SCT Linked Case(s): 2009-CA-01441-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-16-2010 Opinion Author: Dickinson, J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Medical malpractice - Breach of standard of care - Expert testimony Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: JNOV Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 04-06-2009 Appealed from: Lafayette County Circuit Court Judge: Henry Lackey Disposition: Following a trial, the jury returned a defense verdict for Dr. Jones, but found for the plaintiffs against Berry, awarding damages of $1,150,000. Berry filed a Motion for Judgment Notwithstanding Verdict, Motion for a New Trial or, Alternatively, Motion for Remittitur Case Number: L02-138 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kevin Berry |
L. CARL HAGWOOD, MARY FRANCES STALLINGS-ENGLAND |
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| Appellee: | Ora L. Patten, as Next Friend of Bianca Patten, Shadarryl Hardnett and Mariah Patten | WILLIAM C. WALKER, JR. | ||
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 - Breach of standard of care - Expert testimony |
| Summary of the Facts: | Sheila Patten, who was being prepared for surgery by Kevin Berry, a Certified Registered Nurse Anesthetist, aspirated stomach fluids into her lungs, leading to her death several weeks later. Sheila’s mother, Ora Patten – on behalf of Sheila’s three children – filed a wrongful death suit against Baptist Memorial Hospital, Dr. Barnes, Dr. Jones, and Berry. Before trial, the hospital and Dr. Barnes were dismissed from the suit. Following the trial, the jury returned a defense verdict for Dr. Jones, but found for the plaintiffs against Berry, awarding damages of $1,150,000. Berry appeals. |
| Summary of Opinion Analysis: | Berry argues that the plaintiff’s standard-of-care instruction was an improper statement of the law, and that the plaintiff produced insufficient evidence to establish that he breached the applicable standard of care. Over Berry’s objection, the trial court gave an instruction which failed to inform the jury of the burden of proof, failed to distinguish which alleged standard of care applied to which defendant (one an anesthesiologist, and the other a CRNA), and failed to relate the general phrases – “utilization of an NG tube” and “fiberoptic induction” – to the facts or the defendants. As one example of potential misuse of the instruction, the jury easily could have concluded that the “standard of care” required use of an NG tube, and because Berry did not use one, that he breached the standard of care. This conclusion – justified under the instruction – ignores the undisputed facts that use of an NG tube was not included in the anesthesia plan, and that Berry was prohibited by the surgeon from using an NG tube. Also, the first two items alleged to be “standards of care” were not only so general that they provided little help to the jury, but, as to Berry, they were conflicting. The general statement “utilization of an NG tube,” standing alone, is hardly a standard of care. And as established by the plaintiff’s own expert, these two alleged “standards of care” are in fact techniques used in entirely different anesthesia procedures. So if they both were “applicable standards of care alleged by Plaintiff,” then the plaintiff, through the instruction, alleged that both should have been done – a position not supported by any expert testimony. All of that said, this case must be reversed, because the plaintiff failed to produce expert testimony that Berry had breached any of the six alleged standards of care. The lawsuit appears to have been aimed at Dr. Jones, the anesthesiologist, who obtained a defense verdict from the jury. In fact, the plaintiffs proposed a jury instruction that would have allowed the jury to hold Dr. Jones vicariously liable for Berry’s negligence, if any. This theory is reflected in the plaintiffs’ examination of expert witnesses where the questions and answers were focused on the duties of anesthesiologists. No expert ever testified that Berry had failed to meet the standard of care of a minimally competent CRNA. |
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