E-Filed Document Sep :43: CA Pages: 25 IN THE SUPREME COURT OF MISSISSIPPI DOCKET NO CA KENNETH STUBBS, M.D.

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1 E-Filed Document Sep :43: CA Pages: 25 IN THE SUPREME COURT OF MISSISSIPPI DOCKET NO CA MARGARET BYRD, APPELLANT VERSUS KENNETH STUBBS, M.D. APPELLEE BRIEF OF APPELLANT F. M. Turner, III Mississippi Bar No F. M. TURNER, III, PLLC P.O. Box Hattiesburg, MS Tel: (601) Fax: (601) Attorney for Appellant

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate possible disqualification or recusal: 1. Margaret Byrd, Plaintiff/Appellant 2. Kenneth Stubbs, M.D., Defendant/Appellee 3. Medical Assurance Company of Mississippi, insurer of Defendant/Appellee 4. Stuart B. Harmon, attorney for Defendant/Appellee 5. Robert L. Johnson, III, attorney for Defendant/Appellee 6. F. M. Turner, III, attorney for Plaintiff/Appellant 7. Honorable Forrest A. Johnson, Jr., Adams County Circuit Court Judge s/ F. M. Turner, III F. M. Turner, III (MB# 8147) Attorney for Appellants i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT REGARDING ORAL ARGUMENT... iv STATEMENT OF ISSUES...v STATEMENT OF THE CASE... vi SUMMARY OF THE ARGUMENT... x ARGUMENT Should any superseding cause instruction have been given to the jury in this case? Was a correct superseding cause instruction given?...10 CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES Blackmon v. Payne, 510 So. 2d 483 (Miss. 1987)... 8, 12 Causey v. Sanders, 998 So. 2d 393 (Miss. 2008)... 4, 9 Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009)...8, 9 Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448 (Tex. 2006)... 8 Dillard v. Tex. Elec. Coop., 157 S.W.3d 429 (Tex. 2005)... 8 Eckman v. Moore, 876 So. 2d 975 (Miss. 2004)... xi, 8, 11, 12 Entrican v. Ming, 962 So. 2d 28 (Miss. 2007)... 9, 11 Forth Worth & D.C. Ry. Co. v. Westrup, 285 S.W (Tex. Comm. App.1926)... 9 Foster v. Bass, 575 So. 2d 967 (Miss. 1990)... 9 Glorioso v. Young Men s Christian Ass n, 556 So. 2d 293 (Miss. 1989)... 6 Glover v. Jackson State University, 968 So. 2d 1267 (Miss. 2007)... 7, 8 Hall v. Hillbun, 466 So.2d 856 (Miss. 1985)... 7 Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634 (1957) Lift-All Co., Inc. v. Warner, 943 So. 2d 12 (Miss. 2006)...x, 7 Mississippi Dept. of Transp. v. Johnson, 873 So. 2d 108 (Miss. 2004)... 6 Rodriguez v. Moerbe, 963 S.W.2d 808 (Tex. App.-San Antonio 1998)... 9 Smith v. Dillon Cab Co., Inc., 245 Miss. 198, 146 So. 2d 879 (1962)... 9 Southland Management Co. v. Brown, 730 So. 2d 43 (Miss 1998)... 1, 4 Wooley v. Lucksinger, 61 So 3d 507 (La. 2011)... 9 OTHER Restatement (Second) of Torts iii

5 STATEMENT REGARDING ORAL ARGUMENT Appellant believes that the issues presented are sufficiently precise that oral argument will not be required. iv

6 STATEMENT OF ISSUES 1. Should any superseding cause instruction have been given to the jury in this case? 2. Was a correct superseding cause instruction given? v

7 STATEMENT OF THE CASE This is a medical malpractice claim brought by Mrs. Margaret Byrd against her physician, Dr. Kenneth Stubbs, alleging failure on the part of Dr. Stubbs properly to examine and treat Mrs. Byrd for complaints of nausea, vomiting and diarrhea that were caused by diverticulitis. The failure to diagnose and treat the diverticulitis led to Mrs. Byrd s suffering a leak or rupture of an inflamed diverticulum, which resulted in peritonitis and required emergency surgery. On May 10, 2004, Mrs. Byrd was seen and examined by Dr. Stubbs in his office in Adams County, Mississippi. She had been his patient for a number of years. On examination, Mrs. Byrd was found to have heme positive stools, indicating bleeding somewhere in her gastrointestinal tract. Dr. Stubbs referred Mrs. Byrd to Dr. Thomas Weed ( Dr. Weed ) for a diagnostic colonoscopy examination. On May 17, 2004, Mrs. Byrd underwent a diagnostic colonoscopy performed by Dr. Weed on an outpatient basis at Natchez Regional Medical Center. Dr. Weed s operative report indicated no masses or mucosal irregularities, but identified some diverticulosis throughout the colon. No area of active bleeding was seen. These findings were reported to Dr. Stubbs by letter from Dr. Weed. Beginning in the second week of July, 2004, Mrs. Byrd developed problems with nausea, vomiting and diarrhea. These problems grew progressively worse. On July 19, 2004, Ms. Byrd presented to the Emergency Department at Natchez Regional Medical Center, where she was initially seen by Dr. Ibrahim Seki, the emergency physician on duty. On initial examination, her temperature was elevated, her pulse was rapid and her blood pressure was variable. Dr. Seki noted in his physical examination that Mrs. Byrd exhibited moderate, diffuse abdominal tenderness and abnormal bowel sounds. Laboratory tests showed her white blood cell count to be very high, she was dehydrated, and she had a low serum potassium level. Dr. Seki diagnosed Mrs. Byrd with vomiting, diarrhea, volume depletion, dehydration, abdominal pain and acute gastroenteritis. vi

8 Dr. Seki ordered Lomotil for diarrhea, Demerol for pain, Phenergan for nausea, and an antibiotic, Levaquin, in addition to intravenous normal saline. She was admitted to Natchez Regional Medical Center under the care of Dr. Stubbs, her regular internist. Dr. Stubbs kept Ms. Byrd in the hospital until July 21, 2004, during which time she continued to receive intravenous fluids, Demerol, Phenergan, and Levaquin. Dr. Stubbs performed no workup to determine the cause of Ms. Byrd s abdominal complaints. Dr. Stubbs discharged Mrs. Byrd from the hospital with her condition without identification or treatment of the cause of her complaints. Mrs. Byrd testified that her condition was unimproved at discharge, while Dr. Stubbs testified that her condition had improved. Dr. Stubbs discharge instructions included a directive for Mrs. Byrd to call him if her condition worsened. On July 23, 2004, Mrs. Byrd again presented to the Emergency Department at Natchez Regional Medical Center with complaints of abdominal pain, nausea and vomiting. Dr. Seki again examined and treated Mrs. Byrd. His history reported that Mrs. Byrd was complaining of constant abdominal pain. Despite the fact that she had been discharged from the hospital with the same complaints only two days earlier, Dr. Seki merely ordered a dose of Demerol and Phenergan and discharged Mrs. Byrd, without doing any workup for the acute and worsening abdominal pain that he documented and without calling Dr. Stubbs. On July 24, 2004, Mrs. Byrd again presented to the Emergency Department at Natchez Regional Medical Center, still complaining of acute abdominal pain, nausea and vomiting. Her pulse rate was profoundly elevated and her blood pressure was low with significant orthostatic changes. Her abdomen was tender and distended and bowel sounds were absent in both lower quadrants. Her white blood cell count was very high and she was significantly dehydrated. Dr. Frederick Robert Martin, an emergency physician on duty, examined Mrs. Byrd in the Emergency Department and ordered an abdominal x-ray series to investigate the cause of her abdominal pain. The x-rays showed evidence of an ileus,. Dr. Martin diagnosed Mrs. Byrd with acute abdominal pain, small bowel obstruction and sepsis. He then called Dr. Stubbs and ordered an abdominal CT scan. The abdominal CT scan showed free fluid in Mrs. vii

9 Byrd s pelvis and an ileus pattern consistent with generalized peritonitis. Dr. Stubbs admitted Ms. Byrd to the hospital and consulted Dr. Weed about her acute abdominal symptoms. Dr. Weed examined Mrs. Byrd and performed an urgent exploratory laparotomy on July 24. On entering the peritoneal cavity, Dr. Weed reported finding a large amount of very foul smelling purulent material throughout the abdomen, with the majority in the lower abdomen and pelvis. There was a tremendous amount of fibrinous exudate on the bowels. Many loops of small bowel had intense inflammatory exudate. Multiple interloop abscesses were found and drained. There was a great deal of edema of the mesentery and intra-abdominal contents. The most intense area of inflammation was around the sigmoid colon. While no obvious opening of the colon was identified by Dr. Weed, he reported finding what appeared to be a cavity that formed from an initial diverticular abscess, then ruptured, causing generalized peritonitis. The colon itself was reported to appear grossly normal, although significantly inflamed. Due to the extensive infection and inflammation, it was necessary to perform a high diverting colostomy in the right upper quadrant of Mrs. Byrd s abdomen. Following surgery, Ms. Byrd was in the intensive care unit for several days and was hospitalized for a total of 13 days. Post-operatively, Ms. Byrd had problems with incision separations and surgical site infections. She lost a significant amount of time from work and lost income as a result. She suffered from pain, embarrassment and shame due to the presence of the colostomy, which limited her ability to move about, take care of herself and earn a living. She suffered extensive disfigurement as a result of the surgeries and colostomy. Dr. Weed reversed the colostomy on November11, Following surgery, Mrs. Byrd was hospitalized for four days. Since recovering from the colostomy reversal, Mrs. Byrd has had persistent abdominal problems, characterized by cramping and sudden diarrhea, which have hampered both her working ability and social involvement. viii

10 Mrs. Byrd brought suit against Dr. Kenneth Stubbs, Dr. Ibrahim Seki and Natchez Regional Medical Center, which had employed Dr. Seki. Dr. Seki and the hospital settled the claims against them and the case proceeded against Dr. Stubbs alone. Trial was held in the Circuit Court of Adams County commencing on November 5, 2013, and ending on November 7. At the conclusion of the evidence, the Circuit Court instructed the jury, inter alia, as follows: You are instructed that a superseding cause is an independent and unforeseen act by a third person which follows the Defendant's actions and which is the substantial factor in causing the plaintiff's injuries. A superseding cause becomes the proximate cause for the plaintiff's injuries and any actions on the part of the defendant becomes [sic.] a remote cause for which he is not liable. Thus, if you find from a preponderance of the evidence in this case that the subsequent actions by Dr. Seki were a substantial factor in causing the Ms. Byrd to need surgery and the treatment the [sic.] followed her surgery, and thus constituted a superseding cause; then Dr. Stubbs cannot be held liable for the injuries proximately resulting from the superseding actions of Dr. Seki, and it is your sworn duty to return a verdict in favor of Dr. Stubbs. Jury Instruction No. 17 (R. p. 296, R.Ex. p. 13) The jury returned a verdict in favor of Dr. Stubbs. Appellant s motion for a new trial was denied, giving rise to the instant appeal. ix

11 SUMMARY OF THE ARGUMENT The Circuit Court erred in giving a superseding cause instruction to the jury, allowing the jury find in favor of Dr. Stubbs, even if negligent, based on the negligence of Dr. Ibrahim Seki. There are two issues: 1. Should any superseding cause instruction have been given to the jury in this case? The major factor influencing whether the act of a third person constitutes a superseding cause of the plaintiff s injury is whether or not the third person s action was or should have been foreseeable to the defendant. Where the claimed superseding cause was foreseeable, it is error to give a superseding cause instruction. Lift-All Co., Inc. v. Warner, 943 So. 2d 12, (Miss. 2006). In the instant case, the claimed superseding act of Dr. Seki was his failure to call Dr. Stubbs when Mrs. Byrd presented to the emergency department on June 23, However, in his deposition testimony in this action, presented to the jury during rebuttal, Dr. Stubbs admitted that such a failure was in fact foreseeable to him based on his experience. Thus, giving Jury Instruction No. 17 was error. 2. Was a correct superseding cause instruction given? Jury Instruction No. 17 correctly states in the first paragraph that a superseding cause is an independent and unforeseen act by a third person that follows the actions of the defendant and becomes the substantial factor causing the plaintiff s injuries and becomes the proximate cause for the injuries. This is equivalent to stating that the act of the third person is the sole proximate cause of injury. However, Jury Instruction No. 17 then restates the rule in the second paragraph to allow the jury to find for Dr. Stubbs even if Dr. Seki s actions were only a substantial factor in x

12 causing Mrs. Byrd s injuries. This is equivalent to stating that if Dr. Seki s act were only a proximate contributing cause of the injuries, Dr. Stubbs negligence would nonetheless be excused. This is an incorrect statement of the law and materially misled the jury as to a critical issue in the case. No other jury instruction properly instructed the jury on this issue. The judgment of the Circuit Court should be reversed and the case remanded for a new trial. xi

13 ARGUMENT Margaret Byrd, plaintiff in the case below, respectfully appeals from the Final Judgment entered by the Circuit Court of Adams County, Mississippi, in favor of Dr. Kenneth Stubbs, defendant below, and from the order of the Circuit Court denying her motion for new trial. At the trial of this action below, the Circuit Court instructed the jury that it could return a verdict in favor of Dr. Stubbs based on the subsequent negligence of Dr. Ibrahim Seki if the negligence of Dr. Seki was a proximate cause of the plaintiff s injuries. There are two issues: 1. Should any superseding cause instruction have been given to the jury in this case? as follows: At the close of the evidence in this case, the Circuit Court instructed the jury, inter alia, You are instructed that a superseding cause is an independent and unforeseen act by a third person which follows the Defendant's actions and which is the substantial factor in causing the plaintiff's injuries. A superseding cause becomes the proximate cause for the plaintiff's injuries and any actions on the part of the defendant becomes [sic.] a remote cause for which he is not liable. Thus, if you find from a preponderance of the evidence in this case that the subsequent actions by Dr. Seki were a substantial factor in causing the Ms. Byrd to need surgery and the treatment the [sic.] followed her surgery, and thus constituted a superseding cause; then Dr. Stubbs cannot be held liable for the injuries proximately resulting from the superseding actions of Dr. Seki, and it is your sworn duty to return a verdict in favor of Dr. Stubbs. Jury Instruction No. 17 (R. p. 296, R.Ex. p. 13) In Southland Management Co. v. Brown, 730 So. 2d 43 (Miss 1998), the Mississippi Supreme Court adopted the six factors set out in Restatement (Second) of Torts 440 as the test for determining whether or not an intervening action of a third party constitutes a superseding cause. Restatement (Second) of Torts 440 states that A superseding cause is an act of a third 1

14 person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. In determining whether an intervening force is a superseding cause, the court must in every case consider the following: a. Did the intervention of the force bring about harm different in kind from that which would otherwise have resulted from the defendant s negligence? b. Did the action of the force or the consequences thereof appear to be extraordinary rather than normal in view of the circumstances existing at the time the third party s action? c. Did the intervening force operate independently of any situation created by the defendant s negligence, or, on the other hand, is it a normal result of that situation? d. Was the operation of the intervening force due to a third party s action or failure to act? e. Was the intervening force due to the act of a third party which was wrongful toward the plaintiff and as such would subject the third party to liability to the plaintiff? f. What was the degree of culpability of the wrongful act by the third person which set the intervening force in motion? The plaintiff called Dr. Arthur Heller, a board certified internist and gastroenterologist, as her expert witness. Dr. Heller was accepted by the trial court as an expert in these fields and testified at length concerning the course of Mrs. Byrd s illness and the failures of Dr. Stubbs and Dr. Seki. With respect to Dr. Stubbs care, Dr. Heller testified that Dr. Stubbs breached the required standard of care in the following ways: i. By failing to consider an appropriate range of differential diagnoses (Tr. v. 2, pp ); ii. By failing to order proper tests to identify the cause of her condition at or near the time of admission (Tr. v. 2, pp ); 2

15 iii. By failing to order appropriate antibiotic coverage (Tr. v. 2, pp ); iv. By failing to consider the significance of sudden development of low blood pressure in a patient with hypertension and abdominal complaints as a sign of developing sepsis (Tr. v. 2, pp ); v. By failing to perform adequate examinations of Mrs. Byrd while in the hospital and failing to document abnormal physical findings and complaints (Tr. v. 2, pp ); and v. By discharging Mrs. Byrd without appropriate testing (Tr. v. 2, p. 252). With respect to Dr. Seki, Dr. Heller testified that Dr. Seki breached the required standard of care on June 23, 2004, in the following ways: i. By failing to call Dr. Stubbs to report his findings and to seek instructions as to further care (Tr. v. 2, p. 284); ii. iii. By failing to admit Mrs. Byrd to the hospital (Tr. v. 3, p. 331; and By discharging Mrs. Byrd with pain medication without evaluating her to determine the cause of her pain. (Tr. v. 2, p ). Viewing the Restatement factors in light of the evidence in this case leads to the following conclusions: a. Dr. Seki s failure caused harm no different in kind from that which would otherwise have resulted from Dr. Stubbs negligence. The negligence of both doctors consisted of a failure to act, thereby allowing Mrs. Byrd s underlying medical problem to worsen without proper treatment. The failure of Dr. Seki on June 23 did not alter the course set by Dr. Stubbs initial failure to do an adequate workup. 3

16 b. Dr. Seki s failure to call Dr. Stubbs was not extraordinary. On rebuttal, the plaintiff presented excerpts from the deposition of Dr. Stubbs, taken earlier in the action, when Dr. Stubbs testified as follows: Q. Did Dr. Seki contact you about Ms. Byrd returning to the emergency room on the 23rd? A. No, he did not. Q. Is it unusual for an emergency room physician not to contact the attending physician when a patient returns to the hospital within 48 hours of discharge, based on your experience? A. That's hard for me to answer. I mean, it depends on the condition of the patient. So it would just depend on what's going on with the patient at the time. Sometimes they do, and sometimes they don't. (Tr. v. 4, pp ) In Causey v. Sanders, 998 So. 2d 393 (Miss. 2008), the Court held that if the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the subsequent actor s negligence is foreseeable and does not cut off the chain of events between the negligence of the first actor and the injury. Causey at , citing Southland Management Co. v. Brown, 730 So. 2d at 46. c. Dr. Seki s actions did not operate independently of any situation created by Dr. Stubbs negligence, but rather, occurred during the progression of events that Dr. Stubbs should have interrupted. Dr. Stubbs testimony presented to the jury on rebuttal admitted as much: Q. When was the next time you saw Ms. Byrd? A. The 24 th. Q. Did you go to the emergency room to see her? 4

17 A. Yes. Q. And what did you find at that point? A. That she had began vomiting again yesterday and had come to the emergency room but the labs were unrevealing. Had more vomiting on the 24 th. Had no further bowel movements since the 21 st. Her laboratory studies again showed a white cell count back up. Her creatinine was up. That's the kidney functions, and she was quite tender with guarding and rebound and there was air fluid levels on her' abdominal plain films. Q. Now, you had -- up at the top of the first line, it says year-old black female recently discharged with viral GI syndrome. Was that -- you just picked one of the possibilities. A. Uh-hum, yes. Just at that time, you know, viral gastroenteritis is the most common, but, of course, I sent her home with antibiotics because she was - - you know -- so relatively toxic when she came in, dehydrated and such, and I wanted to make sure it wasn't one of the toxic bacterias. Q. What was her physical condition? A. And her most tenderness at the time of this was in her right lower quadrant, and of course then you start thinking about appendicitis. Q. Was that the first time she had what you thought was a localized tenderness? A. Yes, sir. Q. What was your impression? 5

18 A. Well, because she had guarding and rebound mostly down the right lower quadrant, I was concerned that -- I mean, now she had peritonitis, and that's a surgical belly. Q. Did you relate her prior complaints to her current condition? A. Sure. Q. So you thought at the time it was an evolution of what she had come in with on the 19th? A. Yes. I mean, that would be the natural assumption. Q. And did anything that was found later contradict that? A. No. (Tr. v. 4, pp ; R.Ex. pp )(emphasis added) d. The operation of the intervening force was due to Dr. Seki s failure to act rather than any positive step that he took that caused independent injury to Mrs. Byrd. In Glorioso v. Young Men s Christian Ass n, 556 So. 2d 293 (Miss. 1989), the Court recognized that the Mississippi rule of law regarding independent, intervening causes more or less establishes an active/passive dichotomy where the active negligence of a subsequent actor cuts off the merely passive negligence of the first actor. Id. at 296; compare Mississippi Dept. of Transp. v. Johnson, 873 So. 2d 108 (Miss. 2004). Here, in contrast, while Dr. Stubbs negligence was passive, in the sense of failing to act when action was required, the negligence of Dr. Seki was also passive. Without an action that changed the course of events from their natural progression, Dr. Seki s negligence cannot be a superseding cause. e. Dr. Seki s failure to act was wrongful toward the plaintiff and as such would subject Dr. Seki to liability to the plaintiff. 6

19 f. Dr. Seki s degree of culpability was less than that of Dr. Stubbs. Dr. Stubbs was the primary attending physician. When he admitted Mrs. Byrd to the hospital on July 19, he was under a duty to exercise reasonable care to diagnose her condition properly and to treat it appropriately. That duty was non-delegable. Hall v. Hillbun, 466 So.2d 856, 871 (Miss. 1985). The evidence shows that Dr. Stubbs did nothing to diagnose the condition and discharged Mrs. Byrd without determining the cause of her symptoms. He did, however, state a diagnosis on discharge that would have misled Dr. Seki and subsequent physicians to think that the condition was self-limited. Taken together, the Restatement factors weigh against a finding that Dr. Seki s failure to act was an intervening action that cut off Dr. Stubbs negligence and became the efficient proximate cause of Mrs. Byrd s peritonitis. In a decision after Southland Management Co. v. Brown, this Court held that the major factor influencing whether the act of a third person constitutes a superseding cause of the plaintiff s injury is whether or not the third person s action was or should have been foreseeable to the defendant. Where the claimed superseding cause was foreseeable, it is error to give a superseding cause instruction. Lift-All Co., Inc. v. Warner, 943 So. 2d 12, (Miss. 2006); see also, Glover v. Jackson State University, 968 So. 2d 1267 (Miss. 2007)(en banc). In Glover, suit was brought against Jackson State for the rape of a 14-year-old girl by two 15-year-old boys on the JSU campus. All three were participants in a youth program sponsored by JSU. The university argued in its defense that the criminal acts of the two boys were intervening, superceding [sic.] causes of Glover s injury and thus the university was not liable. In that case, JSU knew that the two boys involved had violent tendencies, having dismissed them from the program in a previous year for fighting. In addition, JSU knew that the victim had previously in the boys restroom where the rape occurred on a prior occasion and also knew of 7

20 allegations that there had been prior sexual activity between the victim and one of the boys. This Court rejected that argument stating clearly, Our precedent clearly establishes that, where an intervening cause of injury was foreseeable, it cannot supercede [sic.] the liability of the defendant. 968 So. 2d at Dr. Stubbs essentially admitted that it was foreseeable that an emergency physician would not call him when a recently discharged patient returned to the emergency department. (Tr. v. 4, pp ) As noted by the Supreme Court in Eckman v. Moore, 876 So. 2d 975 (Miss.2004): [I]f an antecedent negligent act puts in motion an agency which continues in operation until an injury occurs it would appear to be more like a second proximate cause than a remote and unactionable cause. Id. at 982, quoting from Blackmon v. Payne, 510 So. 2d 483, 487 (Miss. 1987). Dr. Stubbs failure to act to diagnose the actual cause of Mrs. Byrd s complaints during the July hospitalization put in motion a sequence of events that led to worsening of Mrs. Byrd s condition. Dr. Seki s negligence was his failure to interrupt the course of events that Dr. Stubbs prior negligence set in motion. The failures of both doctors to act deprived Mrs. Byrd of timely treatment. Dr. Stubbs negligence continued in operation entirely absent any affirmative act by Dr. Seki. Therefore, Dr. Stubbs negligence remained a proximate cause of Mrs. Byrd s injuries unabated by Dr. Seki s independent failure to act. Under Texas law, a superseding cause is defined as the act or omission of a separate and independent agent, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.2009), citing Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, (Tex.2006) and Dillard v. Tex. Elec. Coop., 8

21 157 S.W.3d 429, 432 n. 3 (Tex.2005). This is consistent with the definitions found in Mississippi law. Superseding cause and new and independent cause are sometimes used interchangeably in discussing this issue in other states. See, e.g., Rodriguez v. Moerbe, 963 S.W.2d 808, 820 n. 11 (Tex.App.-San Antonio 1998), citing Forth Worth & D.C. Ry. Co. v. Westrup, 285 S.W. 1053, 1054 (Tex.Comm.App.1926) and Wooley v. Lucksinger, 61 So 3d 507,585 (La. 2011). In Hawley, the Texas Supreme Court observed: A new and independent cause alters the natural sequence of events, produces results that would not otherwise have occurred, is an act or omission not brought into operation by the original wrongful act of the defendant, and operates entirely independently of the defendant's allegedly negligent act or omission. Hawley, 284 S.W.3d at 857 (emphasis added) In the present case, neither of the highlighted terms apply. Dr. Seki s negligence did not alter the natural sequence of events, since he did nothing, and so did not produce results that otherwise would not have occurred. If Mrs. Byrd had remained at home on June 23, instead of going to the emergency department, the course of her illness would have been the same. [N]egligence is remote and non-actionable which merely causes a person to be at a particular place at a particular time where such person is injured as a result of the negligent act of another, who puts in motion a different and intervening cause which efficiently leads in unbroken sequence to the injury. Entrican v. Ming, 962 So. 2d 28, 36 n.2 (Miss. 2007); Causey v. Sanders, 998 So. 2d 393 (Miss. 2008). However, to be held liable a person need not be the sole cause of an injury. It is sufficient that his negligence concurring with one or more efficient causes, other than the plaintiff s, is the proximate cause of the injury. Entrican, 962 So. 2d at 32, citing Foster v. Bass, 575 So. 2d 967, 992 (Miss. 1990), quoting Smith v. Dillon Cab Co., Inc., 245 Miss. 198, , 146 So. 2d 879, 882 (1962). 9

22 Under the facts in the present case, the negligent failures of both Dr. Stubbs and Dr. Seki were each a proximate cause of Mrs. Byrd s injury. Dr. Seki s negligence put in motion no different cause than that resulting from Dr. Stubbs negligence. Therefore, a superseding cause instruction was not proper. The judgment of the Circuit Court should be reversed on this ground. 2. Was a correct superseding cause instruction given? This argument turns on the distinction between a and the. At the conclusion of the evidence, the Circuit Court instructed the jury, inter alia, as follows: You are instructed that a superseding cause is an independent and unforeseen act by a third person which follows the Defendant's actions and which is the substantial factor in causing the plaintiff's injuries. A superseding cause becomes the proximate cause for the plaintiff's injuries and any actions on the part of the defendant becomes [sic.] a remote cause for which he is not liable. Thus, if you find from a preponderance of the evidence in this case that the subsequent actions by Dr. Seki were a substantial factor in causing the Ms. Byrd to need surgery and the treatment the [sic.] followed her surgery, and thus constituted a superseding cause; then Dr. Stubbs cannot be held liable for the injuries proximately resulting from the superseding actions of Dr. Seki, and it is your sworn duty to return a verdict in favor of Dr. Stubbs. Jury Instruction No. 17 (R. p. 296, R.Ex. p. 13) Jury Instruction No. 17 correctly states in its first paragraph that a superseding cause is an independent and unforeseen act by a third person that follows the actions of the defendant and becomes the substantial factor causing the plaintiff s injuries and becomes the proximate cause for the injuries. This is equivalent to stating that the act of the third person is the sole proximate cause of injury. However, Jury Instruction No. 17 then restates the rule in its second paragraph to allow the jury to find for Dr. Stubbs even if Dr. Seki s actions were only a substantial factor in causing 10

23 Mrs. Byrd s injuries. This is equivalent to stating that if Dr. Seki s act were only a proximate contributing cause of the injuries, Dr. Stubbs negligence would nonetheless be excused. The appellant is aware that in Eckman v. Moore, 876 So. 2d 975 (Miss. 2004), an instruction having this same dichotomy was at issue and the Court noted in passing that it properly stated the law of superseding cause. 876 So. 2d at 980. But, the issue in Eckman v. Moore was the denial of any superseding cause instruction, so the precise wording of the instruction proposed in the case was not under close scrutiny. However, the use of a substantial factor (in the sense of a proximate cause) instead of the substantial factor (or the proximate cause) in the second paragraph is inconsistent with the majority of Mississippi cases and materially misled the jury as to a critical issue in the case. As noted in Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634 (1957), [t]here may be more than one proximate cause of an injury, and if [defendant s] negligence proximately contributed to the injury, then [defendant] is liable event though its negligence was not the sole proximate cause thereof. 230 So. 2d at 636 (citations omitted). As stated above, in Entrican v. Ming, this Court held that to be held liable a person need not be the sole cause of an injury. It is sufficient that his negligence concurring with one or more [other] efficient causes is the proximate cause of the injury. 962 So. 2d at 32 (citations omitted). The analysis in the previous section of this argument clearly sets for the facts that show that both Dr. Stubbs and Dr. Seki were guilty of the same negligent omission failure to investigate and identify the cause of Mrs. Byrd s complaints so that she could be timely and properly treated and had either acted, her subsequent injuries would not have occurred. Their failures were independent of one another and each allowed the progression of her disease unimpeded. Even in Eckman v. Moore this Court recognized that: 11

24 [I]f an antecedent negligent act puts in motion an agency which continues in operation until an injury occurs it would appear to be more like a second proximate cause than a remote and unactionable cause. 876 So. 2d at 982, citing Blackmon v. Payne, 510 So. 2d 483, 487 (Miss. 1987). Jury Instruction No. 17 improperly elevated a mere contributing cause to absolution for Dr. Stubbs earlier negligence. That is clearly not the rule universally recognized. Were that the law, then in any situation involving concurrent negligence, the last actor would bear the loss regardless of the contribution of others. Dr. Stubbs failure to diagnose the actual cause of Mrs. Byrd s complaints during the July hospitalization put in motion a sequence of events that led to worsening of Mrs. Byrd s condition. At most, Dr. Seki s negligence was his failure to interrupt the course of events that Dr. Stubbs prior negligence set in motion a proximate cause, not the proximate cause. If Dr. Stubbs had wished the jury to consider Dr. Seki s negligence in mitigation of his own liability, the proper method would have been an instruction concerning allocation of fault between Dr. Stubbs and Dr. Seki. However, Dr. Stubbs counsel expressly stated to the trial court that he was not seeking such an allocation. No other jury instruction properly instructed the jury on this issue. Therefore, the judgment of the Circuit Court should be reversed. CONCLUSION Based on the foregoing arguments, the judgment of the Circuit Court of Adams County should be reversed and this civil action remanded to that court for retrial on all issues. Respectfully submitted, s/ F. M. Turner, III F. M. Turner, III Mississippi Bar No

25 F. M. Turner, III, PLLC P. O. Box Hattiesburg, MS Telephone: (601) Facsimile: (601) Attorney for Appellants CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Stuart B. Harmon, Esq. sharmon@heidelbergharmon.com Heidelberg Harmon PLLC 795 Woodlands Pkwy Ste 220 Ridgeland, MS Robert L. Johnson, III, Esq. rlj3law@bellsouth.net Attorney at Law PO Box 1678 Natchez, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Hon. Forrest A. Johnson, Jr. Circuit Court Judge P.O. Box 1372 Natchez, MS This the 29 th day of September, s/ F. M. Turner, III F. M. Turner, III, Attorney for Appellant 13