Miss. Baptist Health Sys., Inc. v. Kelly


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Docket Number: 2009-CA-01796-COA
Oral Argument: 08-25-2011
 

 

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Court of Appeals: Opinion Link
Opinion Date: 12-13-2011
Opinion Author: Ishee, J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Inconsistent verdict - Exclusion of medical records - Damages - Section 11-7-13 - Interest rate - Section 75-17-7
Judge(s) Concurring: Lee, C.J., Irving, P.J., Roberts and Russell, JJ.
Judge(s) Concurring Separately: Maxwell, J., specially concurs with separate written opinion joined by Roberts, J., and joined in part by Ishee, J.
Non Participating Judge(s): Griffis, P.J., Myers and Barnes, JJ.
Dissenting Author : Carlton, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 06-30-2010
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: $4.6 MILLION MEDIAL MALPRACTICE VERDICT IN FAVOR OF APPELLEES, PLUS 8% INTEREST FROM DATE OF VERDICT
Case Number: 251-01-982CIV

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center




MICHAEL B. WALLACE REBECCA L. HAWKINS EUGENE RANDOLPH NAYLOR REX MORRIS SHANNON III



 
  • Appellant #1 Reply Brief

  • Appellee: Jonathan Kelly, Individually and on Behalf of all Wrongful Death Beneficiaries of Ellen Kelly, Deceased G. JOSEPH DIAZ JR. CHRISTOPHER P. WILLIAMS DENNIS C. SWEET III  

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    Topic: Medical malpractice - Inconsistent verdict - Exclusion of medical records - Damages - Section 11-7-13 - Interest rate - Section 75-17-7

    Summary of the Facts: Ellen Kellywas admitted to Baptist to undergo a hysterectomy and a partial vulvectomy, both of which were recommended by her gynecologist, Dr. Fred Ingram. Dr. Ingram had been Ellen’s obstetrician-gynecologist since 1997. He treated her throughout her second pregnancy and delivery, which included two hospitalizations at Baptist. She was hospitalized once during the early months of her pregnancy and again in 1998 for the Caesarean-section delivery of her second child. Dr. Ingram performed Ellen’s surgery with the assistance of his partner, Dr. Doug Odom. Ellen died on July 14, 2000. Her husband, Jonathan, brought a wrongful-death action in the Hinds County Circuit Court against Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center, Dr. Ingram (gynecologist), Dr. Odom (gynecologist), OB-Gyn Clinic of Jackson, PLLC (clinic of Dr. Ingram and Dr. Odom), Dr. Carroll McLeod (anesthesiologist), and Dr. Timothy D. Cannon (pulmonologist). Baptist is the only defendant involved in this appeal. He claimed Ellen died of anaphylactic shock due to the doctors’ and Baptist’s negligent failure to discover Ellen was allergic to latex and to thereafter take proper precautions. He asserted Ellen died as a result of the latex allergy, which caused her cardiac arrest. The jury returned a verdict finding Baptist liable for Ellen’s death through the negligence of its nurses. The jury exonerated the doctors. It further held Baptist’s nurses were negligent by failing to notify the doctors of Ellen’s latex allergies and for failing to follow the hospital’s latex-allergy procedures. The jury awarded $516,000 to the wrongful-death beneficiaries and $4,175,000 to Ellen’s estate. The trial judge entered a final judgment on July 1, 2009, awarding an interest rate of 8% beginning on June 2, 2009, the date of the jury’s verdict. Baptist appeals.

    Summary of Opinion Analysis: Issue 1: Inconsistent verdict Baptist argues it is entitled to a new trial because the jury’s verdict shows “inescapable inconsistency.” Baptist argues that because the doctors had a duty to take a proper history from Ellen and the jury exonerated the doctors, the jury could not find the nurses were negligent for failing to follow hospital procedures regarding latex allergies. Jonathan correctly asserts Baptist never raised this issue before the trial court. Issues not raised at trial cannot be raised on appeal. In addition, there is nothing inconsistent in the verdict. The doctors and the nurses owed Ellen different duties. Thus, the jury’s finding the doctors did not breach their duty of care but the nurses did breach their duty of care was consistent. Furthermore, the jury instructions enumerated the different duties. Baptist argues the nurses’ failure to conform to the appropriate standard of care did not proximately cause Ellen’s death because the doctors admitted they performed their own assessment of Ellen and used their own charts during surgery. However, the nurses were required to take other precautions outside of making notations within the chart. The nurses should have placed a sign on her door and a sticker on her chart noting the allergy, among other duties. There is no evidence to suggest that had the nurses followed the proper standard of care and placed a sticker on the chart or notified the doctors about Ellen’s latex allergy the doctors would not have heeded their warnings. Because the jury found the nurses had not informed the doctors of the allergy, it is consistent that the jury also found the doctors had no notation of Ellen’s allergy to latex in the record. Issue 2: Exclusion of medical records Baptist argues Ellen’s medical records from her prior hospitalizations should not have been excluded from evidence. Baptist sought to introduce Ellen’s records to show that Ellen did not have an allergic reaction to alleged latex exposure. The trial judge found the documents were not relevant because Baptist offered nothing to show Ellen was exposed to latex during any of these medical visits nor did it offer any expert testimony about Ellen’s latex exposure during those visits. Importantly, the medical records from six of Ellen’s hospitalizations at Baptist were placed in evidence. The records began in October 1997 and continued through her final hospitalization on July 14, 2000. The trial judge did not abuse his discretion. Issue 3: Damages Baptist argues that a new trial should be held on damages, because the jury incorrectly assessed the value of household services; the jury incorrectly assessed Ellen’s medical expenses, funeral expenses, and compensation for Ellen’s physical and emotional pain and suffering; and the anesthesiologist, Dr. McLeod, should have been listed as a responsible party on the jury’s damage form because he bore “potential responsibility” for Ellen’s injuries. Section 11-7-13 provides for medical and funeral costs; the present net cash value of the life expectancy of the deceased if older than the beneficiaries; the loss of the companionship and society of the decedent; the pain and suffering of the decedent between the time of injury and death; and punitive damages, when appropriate. As with all damages, Jonathan bore the burden of showing the amount of the loss of Ellen’s household services. A Jackson CPA who specializes in valuation analysis testified as an expert regarding the value of Ellen’s household services. Baptist offered no expert testimony to dispute his figure. As with all witnesses, the jury was entitled to believe or disbelieve the expert’s testimony. In this instance, the jury chose to believe the expert, and there was no error. Baptist does not dispute the jury award for Ellen’s funeral and medical expenses totaling $29,604.52. The dean of the business college at Jackson State University, who is also a certified public accountant and attorney, testified regarding the amount of Ellen’s lost wages. Baptist did not offer any expert testimony to dispute the expert’s figure. The actual damages awarded include: $29,604.52 for funeral and medical expenses; $992,109 for the loss of Ellen’s household services; and $1,415,880 for Ellen’s lost wages. Therefore, the actual damages awarded totaled $2,437,934.52. The total amount of the damages awarded by the jury totaled $4,691,000. Thus, the jury awarded $2,253,065.48 for pain and suffering. Pain and suffering damages are measured from the time of injury and death. Clearly the "injury" was the surgery during which she was exposed to latex. It is uncontradicted that Ellen regained consciousness after the surgery. The jury found during this period that she suffered an allergic reaction, which included itching, redness of the face, blisters on the lips, and nausea. As her reaction progressed, she struggled to breathe due to the anaphylactic reaction. There is no doubt she suffered physical agony and mental anguish as she struggled to breathe. As her reaction continued, the flow of blood to her brain decreased, which led to extreme swelling of her brain and ultimately a brain stroke and infarction. Given the evidence, the amount was neither outrageous nor unreasonable. Baptist argues the trial court erred by not allowing Ellen’s anesthesiologist to be listed as a responsible party for the jury to consider in awarding damages. However, there was no testimony even offered to suggest that he had deviated from the standard of care and proximately caused Ellen’s death. In order to have an instruction granted, there must be some supporting evidence presented. Baptist also argues that the jury was confused when it awarded the amount of damages for pain and suffering. However, there is nothing in the final judgment award by the jury that shows any confusion. Issue 4: Interest rate Baptist argues the trial court erroneously awarded interest at the rate of 8% per annum, compounded annually, to accrue as of June 2, 2009, the date of the verdict. Baptist also disputes the interest rate of 8%. Baptist argues when the interest rate is applied to the judgment amount of $4,691,000, the interest accrues at $1,028.16 per day. This means in the twenty-nine days between the jury’s verdict and the entry of final judgment, interest accrued in the amount of $29,816.76. Section 75-17-7 governs the application of interest rates to judgments. Interest on a monetary award is designed to compensate for the loss that results when a claimant is deprived of the use of money to which she was entitled from the moment that liability was determined. The statute provides the only limit regarding the time when interest can be awarded is that it can “in no event [be] prior to the filing of the complaint.” Thus, the trial court could have allowed the interest to begin anytime after the date on which the complaint was filed, August 31, 2001. Additionally, there was no error in the trial court’s award of interest at the rate of 8% to run from the date of the jury verdict.


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