Magee v. Covington County Sch. Dist., et al.


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Docket Number: 2010-CA-00621-COA
Linked Case(s): 2010-CA-00621-COA ; 2010-CA-00621-COA ; 2010-CT-00621-SCT

Court of Appeals: Opinion Link
Opinion Date: 01-10-2012
Opinion Author: Carlton, J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Breach of objective standard of care - Jury instruction - Request for admissions - Borrowed-servant liability - Cross-appeal - M.R.A.P. 4(c)
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Fair, J.
Dissenting Author : Russell, J.
Dissent Joined By : Irving, P.J.
Procedural History: JNOV
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 03-17-2010
Appealed from: Covington County Circuit Court
Judge: Robert G. Evans
Disposition: GRANTED MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND DISMISSED DEFENDANTS WITH PREJUDICE
Case Number: 2008-45C

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Lutricia Magee, Individually, and on Behalf of the Wrongful Death Beneficiaries of Lonnie C. Magee, Jr., Deceased




GERALD PATRICK COLLIER



 
  • Appellant #1 Reply Brief

  • Appellee: Covington County School District, Green Tree Family Medical Clinic, PLLC d/b/a Green Tree Family Medical Associates, Joe E. Johnston, M.D., Word Johnston, M.D., Bettye Logan, F.N.P., and Covington County Hospital J. ROBERT RAMSAY ROBERT D. GHOLSON JOLLY W. MATTHEWS III ANITA K. MODAK-TRURAN NOEL ASHTON ROGERS CHAD ROBERTS HUTCHINSON  

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    Topic: Medical malpractice - Breach of objective standard of care - Jury instruction - Request for admissions - Borrowed-servant liability - Cross-appeal - M.R.A.P. 4(c)

    Summary of the Facts: Lonnie, a seventeen-year-old male, was a member of Mount Olive Attendance Center’s football team. During the course of football practice on that same day, Lonnie collapsed, and he was ultimately pronounced dead at Covington County Hospital. Just one day prior to his death, on August 7, 2007, Nurse Bettye Logan, F.N.P., performed a pre-participation physical evaluation (PPE) on Lonnie at Green Tree Family Medical Clinic, PLLC. Lonnie’s death certificate showed that Lonnie died from a heat stroke, with significant conditions of hypertensive heart disease and morbid obesity. Lutricia Magee, individually, and on behalf of the wrongful-death beneficiaries of Lonnie, and all others who are entitled to recover under the wrongful-death statute, filed suit against Covington County School District. Lutricia alleged negligence and res ipsa loquitur on behalf of CCSD. Shortly thereafter, Lutricia filed her first amended complaint, adding John Doe Persons and John Doe Entities. CCSD filed a motion for summary judgment, which the trial court granted in part and denied in part. Lutricia filed a second amended complaint, adding as defendants Green Tree, Nurse Logan, Dr. Word Johnston, and Dr. Joe Johnston, alleging that the medical providers committed medical negligence in connection with the PPE performed on Lonnie at Green Tree and in their decision to clear him to play football based on their PPE findings. Nurse Logan filed a motion to dismiss and separate answers and defenses to the second amended complaint, asserting therein that she worked as an employee of CCH, a community hospital, at all relevant times. The Mississippi Supreme Court granted CCSD’s interlocutory appeal on the trial court’s judgment. Lutricia filed a third amended complaint naming CCH as a defendant, in light of Nurse Logan’s position at CCH at the time the PPE at issue was completed. Nurse Logan and CCH filed a motion for partial summary judgment, which the trial court granted. The trial court provided that Nurse Logan was to remain in the suit solely as the representative for CCH. The trial court later entered a separate partial summary judgment, confirming Nurse Logan’s dismissal as an individual defendant, but the court reserved ruling as to whether Nurse Logan was a “borrowed servant” of Green Tree at the time the PPE at issue was performed. At the close of Lutricia’s case, the defendants moved for a directed verdict, which the trial court granted, in part, dismissing with prejudice the individual claims against Dr. Johnston and Dr. Johnston. After the parties rested, and during the jury-instruction conference, the trial judge amended his prior order finding that on August 7, 2007, Nurse Logan’s status constituted that of an employee of CCH, a government entity with immunity. The trial court, however, further found that Nurse Logan’s status constituted that of a borrowed servant of Green Tree during Lonnie’s PPE. At the conclusion of the trial, the jury returned a verdict assessing Lutricia damages totaling $750,000. The jury allocated 50% fault to Green Tree and 50% fault to Lutricia. The trial judge entered a final judgment awarding Lutricia damages in the amount of $375,000 with interest. Green Tree filed a motion for a JNOV or, in the alternative, for a new trial and also a supplement to the motion. The trial court granted Green Tree’s JNOV motion and entered judgments of dismissal with prejudice in favor of CCH and Green Tree. Lutricia appeals.

    Summary of Opinion Analysis: Issue 1: JNOV Lutricia argues the trial court improperly granted Green Tree’s motion for a JNOV. Lutricia asserts an abundance of evidence existed supporting findings that Green Tree had breached the standard of care owed to Lonnie when Nurse Logan performed a PPE on him at Green Tree, and this breach caused and/or contributed to Lonnie’s death. To establish a prima facie case of medical malpractice, the plaintiff must show 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 duty was a proximate cause of the plaintiff's injury; and the plaintiff was injured as a result. The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff's selected medical expert. The expert must articulate an objective standard of care and must establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries. In this case, Lutricia failed to articulate an objective standard of care and also failed to show that a breach of an objective standard of care occurred that proximately caused Lonnie’s death. As noted by the trial court, the patient bears the responsibility to provide proper medical history to the medical provider. The trial court accurately assessed that Lonnie and Lutricia not only failed to provide Nurse Logan with vital medical information during Lonnie’s PPE, but inexplicably they provided false information about Lonnie’s medical history to Nurse Logan to rely upon in conducting the PPE. Lonnie arrived for the PPE at Green Tree with an incomplete PPE form signed by his mother, Lutricia. Nurse Logan refused to clear Lonnie for sports participation until she spoke with Lutricia regarding Lonnie’s prior medical history. Lonnie and his mother, Lutricia, provided Nurse Logan with a false medical history which indicated that Lonnie possessed no history of a heart condition, high blood pressure, and any other medical ailments. Evidence presented at trial, however, showed that Lutricia provided a patently false medical history. Lonnie’s prior medical records with other medical providers and other clinics verified Lonnie’s previous diagnosis of serious heart problems and history of elevated blood pressure. Based on the unremarkable medical history provided by Lonnie and his mother to Nurse Logan to conduct his PPE, and based on Nurse Logan’s physical findings on the day of the PPE, Nurse Logan cleared Lonnie to play sports. The defense expert stated Nurse Logan conducted an adequate sports physical assessment and actually “went above and beyond” that which was expected when performing Lonnie’s PPE when faced with an incomplete PPE form. Defense testimony also established the compliance by Nurse Logan with the objective criteria and the standard of care for PPEs. Lutricia argues, regardless of the false medical history provided to Nurse Logan to rely upon in conducting the PPE of her son, Nurse Logan inappropriately cleared Lonnie for football activities without further evaluation based on the red flags that her expert witness identified and based upon the findings of the PPE alone. The record shows, however, that her expert used criteria for adults, and a review of the record fails to reveal any objective evidence showing that using adult criteria constituted the standard of care applicable to Lonnie. Defense experts established that the objective criteria applicable to pediatrics applied to the PPE findings and the standard of care in this case. Lutricia failed to provide evidence to refute the applicability of pediatric criteria as established by the American Academy of Pediatrics and the CDC and failed to establish the applicability of some other objective criteria. Since Lutricia failed to provide evidence of a breach of an objective medical standard of care, she failed to show any negligence in the PPE conducted by Nurse Logan. Issue 2: Jury instruction Lutricia argues that the trial court erred in instructing the jury via “Jury Instruction D1-8A,” that if it finds from a preponderance of the evidence that Lonnie and/or his mother did not provide accurate information with regard to Lonnie’s health on August 7, 2007, then in that event, the plaintiff was negligent. Lutricia claims that because the present case is a medical-negligence case, she, as a non-physician, cannot be held medically negligent. Since there is no error in the trial court’s subsequent grant of the motion for a JNOV, this issue is moot. Issue 3: Request for admissions Lutricia argues that during the pre-trial conference, her counsel requested that the trial court decide the issue of whether Lonnie was morbidly obese on August 7, 2007, because the defendants, Green Tree, Dr. Johnston, and Dr. Johnston, admitted this fact via their responses to requests for admission. Lutricia asserts that the trial court responded: “You show me, Mr. Collier [Lutricia’s counsel], where they admitted it, not now. When you get ready to offer it, show it to me, and show me it’s relevant, and I’ll let you tell the jury.” Lutricia further claims that on October 19, 2009, on the first day of trial, Lutricia filed a “Motion to Admit into Evidence Facts Established as a Matter of Law or by Pleadings, Admissions, Stipulations[,] or Deposition Testimony.” The trial court did not grant or take up the motion. Lutricia admits there is no record or transcript of this October 19, 2009 dialogue. Moreover, the record shows Lutricia never sought to introduce the admission responses into evidence, which she bore the duty to seek. It is well-settled law that it is the responsibility of the appellant to present a record sufficient to support his assignments of error. Furthermore, the affirmative duty rests upon the party filing the motion to follow up his action by bringing it to the attention of the trial court. Issue 4: Borrowed-servant liability Green Tree argues in its appellate brief that the trial court’s grant of the motion for a JNOV overcame its erroneous ruling that Nurse Logan was a borrowed servant of Green Tree. Pursuant to M.R.A.P. 4(c), a notice of appeal for a cross appeal must be filed within 14 days after the date on which the first notice of appeal was filed, unless a longer period is prescribed by another provision of Rule 4. The record contains no notice of appeal filed by Green Tree for its appeal of this issue. Therefore, Green Tree has failed to place the issue properly before the Court.


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