Nichols v. Moses
| Docket Number: | 2002-KA-00710-COA Linked Case(s): 2002-CA-00710-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-18-2003 Opinion Author: McMillin, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Jury instruction Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 04-16-2002 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: JURY VERDICT IN FAVOR OF APPELLEE Case Number: A-2401-98-00512 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Steven R. Nichols |
JIM DAVIS |
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| Appellee: | Michael E. Moses, M.D. | MARGARET FRANKLIN PUCKETT MCARTHUR HARRY R. ALLEN ROSS DOUGLAS VAUGHN |
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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 - Jury instruction |
| Summary of the Facts: | Steven Nichols sought recovery for damages against Dr. Michael Moses, a surgeon who performed an operation intended to correct problems related to a Koch Pouch previously implanted in Nichols. The jury returned a verdict for the defendant, and Nichols appeals. |
| Summary of Opinion Analysis: | Nichols argues that the jury was not properly instructed on the applicable law. The instruction at issue instructed the jury that Nichols was required to establish the elements of his negligence claim by a preponderance of the evidence through medical expert testimony. Nichols argues that the phrase “through medical expert testimony” had the effect of unduly limiting the jury in its consideration of all the evidence and, instead, singling out medical expert testimony as the only evidence to be considered by the jury. Although this phrase was not advisable and unhelpful to the jury in its deliberations, the phrase does represent an accurate statement of the law regarding proof of negligence in a medical malpractice case. Because it does nothing to aid the jury in its deliberations, it is mere surplusage. Only if the trial court had previously erred in admitting incompetent evidence as to the plaintiff’s theory regarding the defendant’s deviation from the applicable standard of care would there be any evidence in the record other than “medical expert testimony” for the jury to consider. In addition, Nichols has failed to present a convincing argument as to exactly how this legally correct but unhelpful surplusage actually prejudiced him. |
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