REPLY BRIEF OF APPELLANT

Transcription

1 E-Filed Document Feb :21: CA COA Pages: 27 IN THE SUPREME COURT OF MISSISSIPPI DOCKET NO CA MARGARET BYRD, APPELLANT VERSUS KENNETH STUBBS, M.D. APPELLEE REPLY 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?... 1 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?... 3 b. 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? Was a correct superseding cause instruction given? Has the doctrine of superseding cause been subsumed by Miss. Code Ann ? CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So. 2d 781 (1950) Blackmon v. Payne, 510 So. 2d 483 (Miss. 1987)... 8, 11 Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131 (Miss. App. 1999) Eckman v. Moore, 876 So. 2d 975 (Miss. 2004)... 1, 3, 10 Entrican v. Ming, 962 So. 2d 28 (Miss. 2007) Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999) Fleming v. Floyd, 969 So. 2d 881 (Miss. App. 2006) Glorioso v. Young Men s Christian Ass n, 556 So. 2d 293 (Miss. 1989)... 7 Hall v. Hillbun, 466 So.2d 856 (Miss. 1985)... 5 Horton v. American Tobacco Co., 667 So. 2d 1289 (Miss. 1995) Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634 (1957) Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So. 2d 472 (1957) Mississippi Dept. of Transp. v. Johnson, 873 So. 2d 108 (Miss. 2004)... 8 Southland Management Co. v. Brown, 730 So. 2d 43 (Miss 1998)... 3, 13 STATUTES Miss. Code Ann xi, 12 Miss. Code Ann v, xi, 11, 12, 13 OTHER Restatement (Second) of Torts , 5, 9, 13 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? 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 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? 2. Was a correct superseding cause instruction given? 3. Has the doctrine of superseding cause been subsumed by Miss. Code Ann ? v

7 STATEMENT OF THE CASE This is a medical malpractice claim brought by Ms. Margaret Byrd against her physician, Dr. Kenneth Stubbs, alleging failure on the part of Dr. Stubbs properly to examine and treat Ms. Byrd for complaints of nausea, vomiting and diarrhea that were caused by diverticulitis. The failure to diagnose and treat the diverticulitis led to Ms. Byrd s suffering a leak or rupture of an inflamed diverticulum, which resulted in peritonitis and required emergency surgery. On May 10, 2004, Ms. 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, Ms. Byrd was found to have heme positive stools, indicating bleeding somewhere in her gastrointestinal tract. Dr. Stubbs referred Ms. Byrd to Dr. Thomas Weed ( Dr. Weed ) for a diagnostic colonoscopy examination. On May 17, 2004, Ms. 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, Ms. 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 Ms. 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 vi

8 potassium level. Dr. Seki diagnosed Ms. Byrd with vomiting, diarrhea, volume depletion, dehydration, abdominal pain and acute gastroenteritis. 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 Ms. Byrd from the hospital with her condition without identification or treatment of the cause of her complaints. Ms. 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 Ms. Byrd to call him if her condition worsened. On July 23, 2004, Ms. 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 Ms. Byrd. His history reported that Ms. 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 Ms. Byrd, without doing any workup for the acute and worsening abdominal pain that he documented and without calling Dr. Stubbs. On July 24, 2004, Ms. 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. vii

9 Frederick Robert Martin, an emergency physician on duty, examined Ms. 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 Ms. 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 Ms. 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 Ms. 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 Ms. 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 viii

10 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, Ms. Byrd was hospitalized for four days. Since recovering from the colostomy reversal, Ms. Byrd has had persistent abdominal problems, characterized by cramping and sudden diarrhea, which have hampered both her working ability and social involvement. Ms. 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 breach of duty by Dr. Stubbs was in failing to identify and treat a condition that, if left untreated, could and reasonably would lead to exactly the result suffered by Ms. Byrd. Dr. Seki s breach of duty was in failing independently to recognize and treat that same condition. Dr. Seki s failure did nothing to alter the course that was set when Ms. Byrd was discharged by Dr. Stubbs without a diagnosis and without appropriate treatment. Viewing the Restatement factors in light of the evidence in this case leads to the inescapable conclusion that Dr. Seki s failure caused harm no different in kind from that which would otherwise have resulted from Dr. Stubbs negligence alone, and so, cannot be a superseding cause excusing Dr. Stubbs negligence. No superseding cause instruction was warranted. 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, which was specific to Dr. Seki s actions to allow the jury to find for Dr. Stubbs even if Dr. Seki s actions were only a substantial factor in causing Ms. Byrd s injuries. This is equivalent to x

12 stating that even 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. 3. Has the doctrine of superseding cause been subsumed by Miss. Code Ann ? Reading Miss. Code Ann and in pari materia, the comparative fault rule has been extended from an allocation of fault only between the plaintiff and all defendants jointly to an allocation between and among the plaintiff and every allegedly responsible party. Under this extended comparative fault regime, it appears that the doctrine of superseding causes is subsumed in the allocation procedure, since the jury can allocate fault specifically to a nonparty found liable for all or part of the plaintiff s injury. The public policy underlying the doctrine of superseding causes is clearly upheld by subsection (2) of Miss. Code Ann in that a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. The multiple, often-subtle distinctions required to decide the superseding cause question is simplified, leading to more consistent results. trial. The judgment of the Circuit Court should be reversed and the case remanded for a new xi

13 ARGUMENT In her principal brief, the Appellant addresses in detail the issues raised in the brief of the Appellee. Differences in emphasis and a (not unexpected) biased interpretation of the facts adduced at trial lead the Appellee to argue for an opposite result from the Appellee. It appears necessary to address only three {four?} points in reply. 1. Should any superseding cause instruction have been given to the jury in this case? The Appellee relies heavily on the decision in Eckman v. Moore, 876 So. 2d 975 (Miss. 2004), in support for the propriety of the Circuit Court s decision to give a superseding cause instruction. A careful reading of the facts of that decision does not support their argument. In Eckman, the patient, Taylor, fell in a movie theater, sustaining a head injury in the fall. After some delay, Taylor went to North Mississippi Medical Center for treatment. Dr. Peters, an emergency room doctor, ordered a CT or cat scan to be performed on Taylor, which showed bleeding in the frontal lobe. Dr. Peters admitted Taylor to the hospital under the care of the oncall specialist, Dr. Eckman. Neurological checks and vital signs were ordered every two hours by Dr. Peters, apparently at the request of Dr. Eckman. Performing those neurological checks was the responsibility of the hospital nursing staff. While neurological checks were made appropriately during the first twenty hours after admission, until around 10:00 p.m. the night after admission, the nursing staff failed to conduct adequate neurological checks after that time. At around 6:00 a.m. the next morning, Taylor suffered a cardiac arrest as a result of a hematoma (a blood collection) that had formed in his brain during the period following his fall. Dr. Eckman had no contact with the nursing staff concerning Taylor s condition between 10:30 p.m., when the nursing personnel informed him that Taylor's neurological status was normal, and the following 6:00 a.m., when he was informed 1

14 of Taylor s cardiac arrest. During that period, the nursing staff should have performed at least four other neurological checks on Taylor but failed to do so. Based on the failures of the nurses, Dr. Eckman sought and was refused a superseding cause instruction concerning the intervening negligence of the nurses. The Supreme Court held that Dr. Eckman had been entitled to a superseding cause instruction and reversed the trial court. Dr. Stubbs, the Appellee, claims that the same result is required here. Contrast the position of Dr. Eckman with that of Dr. Stubbs: 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. Dr. Seki diagnosed Ms. Byrd with vomiting, diarrhea, volume depletion, dehydration, abdominal pain and acute gastroenteritis. She was admitted to the hospital 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 received intravenous fluids, Demerol, Phenergan, and Levaquin. Dr. Stubbs performed no workup to determine the cause of Ms. Byrd s abdominal complaints. Dr. Stubbs discharged Ms. Byrd from the hospital without identification or treatment of the cause of her complaints. Ms. 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 Ms. Byrd to call him if her condition worsened. On July 23, 2004, Ms. 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 Ms. Byrd. His history reported that Ms. 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 2

15 Phenergan and discharged Ms. Byrd, without doing any workup for the acute and worsening abdominal pain that he documented and without calling Dr. Stubbs. At the close of the evidence in this case, the Circuit Court granted the Defendants requested jury instruction on the alleged negligence of Dr. Seki as a superseding cause. 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 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 six issues. In her principal brief, Ms. Byrd discusses each issue. However, in distinguishing this case from Eckman v. Moore, it is sufficient to concentrate on only two factors: 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? The plaintiff called Dr. Arthur Heller, a board certified internist and gastroenterologist, who 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 ); iii. By failing to order appropriate antibiotic coverage (Tr. v. 2, pp ); 3

16 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 Ms. Byrd while in the hospital (Tr. v. 2, pp ); vi. By failing to document abnormal physical findings and complaints (Tr. v. 2, pp ); and vii. By discharging Ms. Byrd without appropriate testing (Tr. v. 2, p. 252). In Dr. Heller s opinion, Dr. Stubbs failed properly to diagnose the cause of Ms. Byrd s complaints, diverticulitis, and discharged her with that condition unchecked. Her subsequent deterioration was the result of Dr. Stubbs failure to initiate proper treatment in a timely manner. 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 Ms. Byrd to the hospital (Tr. v. 3, p. 331; and By discharging Ms. Byrd with pain medication without evaluating her to determine the cause of her pain (Tr. v. 2, p ). The contrasting positions of Dr. Eckman and Dr. Stubbs are clear. Dr. Eckman had given specific orders for the nurses to perform two-hour neurological checks on Mr. Taylor and to report abnormal findings to him. Dr. Eckman s care relied upon the nurses performing their duty by making proper neurological checks and making timely reports to Dr. Eckman. Dr. Stubbs gave no orders to Dr. Seki concerning Ms. Byrd s care after her discharge from the hospital on July 21. When Dr. Stubbs discharged Ms. Byrd, he did not intend that Dr. Seki would become 4

17 involved in her care. In fact, Dr. Stubbs defense relies upon the claim that Dr. Seki s involvement was not even foreseeable to Dr. Stubbs. The actions or inactions of Dr. Seki had no bearing on Dr. Stubbs subsequent plan or actions, as contrasted with Dr. Eckman, whose course of action largely depended on the nurses reports. In Hall v. Hillbun, 466 So.2d 856, 869 (Miss. 1985), the Supreme Court defined the duty of care owed by a physician as being non-delegable. Both Dr. Stubbs and Dr. Seki owed duties of care to Ms. Byrd that were independent of one another. Succinctly stated: Id. at 873. [T]he physician's non-delegable duty of care is this: given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options. (Emphasis added.) The breach of duty by Dr. Stubbs was in failing to identify and treat a condition that, if left untreated, could and reasonably would lead to exactly the result suffered by Ms. Byrd. Dr. Seki s breach of duty was in failing independently to recognize and treat that same condition. Dr. Seki s failure did nothing to alter the course that was set when Ms. Byrd was discharged by Dr. Stubbs without a proper diagnosis and without appropriate treatment. Viewing the Restatement factors in light of the evidence in this case leads to the inescapable conclusion that Dr. Seki s failure caused harm no different in kind from that which would otherwise have resulted from Dr. Stubbs negligence alone. Therefore, Dr. Seki s failure cannot be a superseding cause excusing Dr. Stubbs negligence. No superseding cause instruction was warranted. 5

18 b. 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? Both Dr. Stubbs and Dr. Seki were serially guilty of inaction. As such, 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 recognized and 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? 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. 6

19 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? 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.) If the worsening of Ms. Byrd s condition can be blamed on Dr. Seki, it was due solely to Dr. Seki s failure to act rather than any positive step that he took that caused a different and independent injury to Ms. 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 7

20 296; 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. As noted by the Supreme Court in Eckman v. Moore: [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, quoting from Blackmon v. Payne, 510 So. 2d 483, 487 (Miss. 1987). Dr. Stubbs failure to act to diagnose the actual cause of Ms. Byrd s complaints during the July hospitalization put in motion a sequence of events that led to worsening of Ms. 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 Ms. 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 Ms. Byrd s injuries unabated by Dr. Seki s independent failure to act. Without an action that changed the course of events from their natural progression, Dr. Seki s negligence cannot be a superseding cause. Under the facts in the present case, the negligent failures of both Dr. Stubbs and Dr. Seki were each a proximate cause of Ms. Byrd s injury. Dr. Seki s negligence put in motion no different cause than that already operating 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: 8

21 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, as required under the Restatement conditions that the intervening act must be independent of the defendant s negligence and bring about harm different in kind from that which would otherwise have resulted from the defendant s negligence. 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 Ms. Byrd s injuries. This is equivalent to stating that even if Dr. Seki s act was only a proximate contributing cause of the injuries, Dr. Stubbs negligence is nonetheless totally excused. The appellant argues that the correct statement in the first paragraph of Jury Instruction 17 cures the failure in the second. That argument is fatally flawed. The first paragraph defines superseding cause generally and requires that it be the act which is the substantial factor in causing the plaintiff s injuries. The second paragraph, which is specific as to Dr. Stubbs and Dr. 9

22 Seki, says if the subsequent actions by Dr. Seki were a substantial factor in causing the [sic.] Ms. Byrd to need surgery, that this thus constitutes a superseding cause, and therefore, Dr. Stubbs cannot be held liable for the injuries, and so the jury must find for Dr. Stubbs. Rather than requiring the jury to refer back to the correct definition in the first paragraph, the second paragraph gives a different definition specific to Dr. Seki that misstates the required finding of fact. A jury following the logical path set out in the second paragraph could never come to an opposite conclusion under the evidence before them. That is the fatal flaw. 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). In Entrican v. Ming, 962 So. 2d 28 (Miss. 2007), 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. Id. 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 Ms. Byrd s complaints so that she could be timely and properly treated and had either acted appropriately, 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: [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. 10

23 876 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 proper rule. 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 Ms. Byrd s complaints during the July hospitalization put in motion a sequence of events that led to worsening of Ms. 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. 3. Has the doctrine of superseding cause been subsumed by Miss. Code Ann ? The foregoing exposition of the superseding cause rule in response to Dr. Stubbs argument has led to another question: Has the doctrine of superseding cause been subsumed by Miss. Code Ann ? The doctrine of an independent, superseding cause as an excuse from another actor s liability had its genesis in the law when liability of concurring actors was joint, several and unlimited. See, e.g., Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So. 2d 781 (1950); Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So. 2d 472 (1957). That has not been the case since the adoption of Miss. Code Ann in 1989 and certainly since the statute s amendment in 2002 to eliminate joint liability in almost all circumstances. At the time of trial (and currently) the statute reads, in pertinent part: (1) As used in this section, "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. (2) [I]n any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a 11

24 joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. * * * (5) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint tort-feasor is immune from damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor. In many ways, the doctrine of superseding causes mirrors the doctrine of last clear chance under the common law doctrine of contributory negligence. The Mississippi Supreme Court has found that such contributory negligence doctrines as last clear chance, assumption of risk and open and obvious hazards are subsumed under the comparative fault doctrine encoded as Miss. Code Ann Horton v. American Tobacco Co., 667 So. 2d 1289, 1293 (Miss. 1995). Under the comparative fault rule, these defenses present no absolute bar to recovery but merely call for an allocation of fault between plaintiff and defendant. Reading Miss. Code Ann and in pari materia, the comparative fault rule has been extended from an allocation of fault only between the plaintiff and all defendants jointly to an allocation between and among the plaintiff and every allegedly responsible party. Whereas, under the common law fault doctrine, the allocation of fault between plaintiff and defendants (P Ds) must be 0% 100% for recovery and under the comparative negligence standard it must be <100% >0%, under the extended doctrine of , the allocation of fault is between plaintiff, defendants and even non-parties (P D 1 D 2 NP 1 NP 2 ) and must only be 100% 0% 0% 0% 0% etc. to sustain a verdict for the plaintiff. Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999). Under this extended comparative fault regime, it appears that the doctrine of superseding causes is subsumed in the allocation procedure, since the jury can allocate fault specifically to a 12

25 non-party found liable for all or part of the plaintiff s injury. The public policy underlying the doctrine of superseding causes is clearly upheld by subsection (2) of Miss. Code Ann in that a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault, while relieving the jury of making multiple, often-subtle either or and distinctions concerning whether the acts of the allegedly intervening actor(s) were extraordinary, independent, active or passive, foreseeable or unforeseeable and whether the resultant harm was different in kind from that caused by another potentially liable person required for analysis under the factors in Restatement (Second) of Torts 440 and Southland Management Co. v. Brown, 730 So. 2d 43 (Miss 1998). Such a simplification of the issues should lead to more consistent results between cases presenting similar facts. Subsuming the superseding cause doctrine under this extended comparative fault regime also preserves the public policy underlying that statute that every entity bearing any responsibility for the plaintiff s injuries should bear its allocable share of the damages caused by its harm. Fleming v. Floyd, 969 So. 2d 881, 890 (Miss. App. 2006); Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1134 (Miss. App. 1999). 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 pursuant to Miss. Code Ann 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. 13

26 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 F. M. Turner, III, PLLC P. O. Box Hattiesburg, MS Telephone: (601) Facsimile: (601) Attorney for Appellant 14

27 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 20 th day of February, s/ F. M. Turner, III F. M. Turner, III, Attorney for Appellant 15