llpage IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2009-CA APPELLANT BENNIE E. BRASWELL, JR.

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1 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2009-CA BENNIE E. BRASWELL, JR. APPELLANT V. BETH STINNETT, D.D.S., INDIVIDUALLY AND D /B/ A FAMILY DENISTRY APPELLEES BRIEF FOR APPELLANT SHIRLEY C. BYERS (MSB BYERS LAW FIRM P. O. BOX 5008 HOLLY SPRINGS, MS TELEPHONE: FACSIMILE: llpage

2 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA BENNIE E. BRASWELL, JR. APPELLANT V. BETH STINNETT, D.D.S., INDIVIDUALLY AND D/B/A FAMILYDENISTRY APPELLEES 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 justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Bennie E. Braswell, Jr., Appellant; Beth Stinnett, Appellee; Family Dentistry, Appellee Stinnett Business; Shirley C. Byers, Byers Law Firm, Counsel for Appellant; Richard D. Underwood, Esq., Underwood & Thomas, Counsel for Appellees; Darrell Baker, Esq., Baker & Whitt, PLLC, Pro Hac Vice Counsel for Appellees; and Henry L. Lackey, Circuit Court Judge. c&~~ 'ERS (MSB 21Page

3 TABLE OF CONTENTS Certificate of Interested Persons... 2 Table of Contents... 3 Table of Cases and Authorities... 4 Statement of Issue... 5 Statement of the Case Argument Conclusion Certificate of Service iPage

4 TABLE OF AUTHORITIES CASES Catchings v. State, 684 So.2d 591 (Miss.1996) Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),... 8, 9,10 Daughtery v. Conley, 906 So.2d 108 (Miss. App. 2004)... 8, 10 Hall v. Hilbun, 466 So.2d 856 (Miss.1985)... 9 Hammond v. Grissom, 470 So.2d 1049 (Miss.1985)... 8 Hardy v. Brantley, 471 So.2d 358 (Miss.1985)... 9 Houston v. York, 755 So.2d 495 (Miss. ct. App. 1999)... 8 Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765 (Miss.1984)... 9 King v. Murphy, 424 So.2d 547 (Miss.1982)... 9 Sentilles v. Inter-Caribbean Shipping Corp., 361 U. S. 107, 109,80 S.Ct. 173, 4 L.Ed.2d 142 (1959) White v. Hancock Bank, 477 So.2d 265 (Miss.1985) Page

5 STATEMENT OF ISSUES WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR DIRECTED VERDICT IN FAVOR OF THE DEFENDANT. STATEMENT OF THE CASE This is a civil action premised on principles of general negligence and medical malpractice seeking recovery for money damages for actual compensatory damages, emotional distress, loss of enjoyment of life, pain and suffering, and economic losses against the Defendants, Beth Stinnett, D.D.S., Family Dentistry; John And Jane Does 1-5 as Employees of Family Dentistry; and John and Jane Does 6-10 as Employees of Beth Stinnett, D.D.S., for certain injuries resulting sustained by the Plaintiff, Bennie E. Braswell, Jr. On or about December 13, 2004, Braswell, presented himself to Defendant, Family Dentistry, whereby Defendant, Dr. Stinnett, performed a "deep cleaning" on Plaintiffs upper right quadrant. Dr. Stinnett administered an antithetic by injecting Braswell's gums at the upper right quadrant. At the time of the injection, Braswell suffered excruciating pain and discomfort. He reported the pain to Dr. Stinnett and her staff. However, Dr. Stinnett injected him again and continued with the procedure. The pain continued throughout the "deep teeth" cleaning procedure. After arriving home and taking pain medication, Braswell's mouth began to swell and the pain continued. He was not able to eat and/or drink. For the next several weeks Braswell suffered swelling and pain. He continues to be numb in the mouth, drools, and cannot drink from a glass. He also cannot determine the warmth of food or liquid, and basically lacks taste in his mouth. Braswell 51Page

6 subsequently incurred medical expenses due to complications of the negligent injection and he continues to suffer said pain. At the trial in the matter, the court entered a directed verdict in favor of Stinnett after Braswell's case-in-chief. In granting the motion the court stated that: I listened intently to the testimony: And I expected it to be asked of the expert: Doctor, do you have an opinion based upon your training, expertise, and knowledge as to whether or not the standard of care was breached to a degree of medical certainty or probability?... we have no testimony as to what the standard of care was at the time... We don't know whether he knew what the standard of care was at that time. We can assume that he did... We don't know what his understanding of the standard of care was and how he reached that opinion, and we don't know whether he is of the opinion that Dr. Stinnett breached the standard of care to an a reasonable degree of medical certainty or probability...! have no other choice but to sustain the motion for a directed verdict. T Further, the court stated to the jury that "the expert testimony had to include what the standard of care is in Holly Springs, Mississippi on December 13, 2004"... They must ask the expert if he understands the standard of care and what he bases his knowledge upon and whether or not tin his opinion the defendant, Dr. Stinnett, had breached the standard of care based upon reasonable degree of medical probability; and that was not asked him.". T Accordingly, the court entered its order of directed verdict and final judgment. R. 61Page

7 A. ARGUMENT WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR DIRECTED VERDICT IN FAVOR OF THE DEFENDANT. The lower court erred in granting Stinnett's motion for directed verdict on the basis that Braswell's expert failed to state the standard of care in Holly Springs, Mississippi on December 9, 2004, and that he did not state that his opinion was based on a reasonable degree of medical certainty.. Braswell offered as his expert Dr. Martin Turk, who was accepted by the court as an expert in the field of oral and maxillofacial surgery. T 256 During Dr. Turk's testimony he testified that he reviewed the pertinent treating physicians' medical records of Braswell, including Stinnett, Braswell's photographs after the procedure by Stinnett, the diary of Braswell, and his report. Dr. Turk testified as to the proper procedure to inj ect anthethesia using visual aid stating that: Generally you deposit your anesthetic two or three millimeters above the tooth if that's the purposed of what was going to happen that day, the scaling and the root planning. All that is standard. To injure that nerve that's up here one of two things has to happen. Either the dentist lost her orientation or she wasn't watching what he was doing. There is no other way the needle could have been up there because that is not the standard of care. That is how that nerve was injured. Q: In your opinion as an expert would the b bruising or nicking of a blood vessel during a dental procedure cause this damage to the infraorbital nerve? A: I would say no. Q: After reviewing your records, the records that were submitted to you at least, did you form an opinion as to whether or not Dr. Stinnett breached her duty of care in the treatment of Bennie Braswell? 71Page

8 T A: Yes, I did. Q: What is that opinion? A: My opinion is she deviated from good dental practice. Q: And her dental treatment to Mr. Braswell on December 13, 2004, do you have an opinion as to whether or not that procedure is the cause of his injury to the infraorbital nerve? A: The injection of the needle is the cause of the numbness and parenthesis related to the infraorbital nerve. Q:... and if Dr. Stinnett was holding the needle, would that be the causation for the injury? A: If she was holding the syringe that supported the needle, absolutely. 1. Standard of Review When considering a motion for a directed verdict, the court conducts a de novo review. See, Daughtery v. Conley, 906 So.2d 108 (Miss. App. 2004); Houston v. York, 755 So.2d 495 (Miss. Ct. App. 1999). All evidence in favor of the party against whom the motion is made must be considered as true and evidence of contradiction thereof must not be considered. Id. At 499. See also, White v. Hancock Bank, 477 So.2d 265 (Miss.1985), Hammond v. Grissom, 470 So.2d 1049 (Miss.1985). This is the standard to be applied by an appellate court in evaluating a trial court's action in granting a directed verdict. Id. 2. Local v. National Standard of Care The trial court erred in ruling that Braswell's expert had to testify as to the local standard of care, i.e., the standard of care in Holly Springs, Mississippi on December 13, 81Page

9 2004. "Under Mississippi law the standard by which physicians are judged has been expanded beyond the locality in which they actually practiced medicine." Hall v. Hilbun, supra. King v. Murphy, 424 So.2d 547 (Miss.1982). "Recognizing that a physician possesses or has "medical knowledge commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States," a national standard of care was adopted." Hall v. Hilbun, supra at p "With the standard of care of a general practitioner in mind, the Court analyzes the plaintiffs duty in the trial. A plaintiff is generally required to present expert medical testimony, first, identifying and articulating the requisite standard of care under the circumstances, and thereafter, establishing that the defendant physician failed in some causally significant respect to conform to the required standard of care." Hammond v. Grissom, 470 So.2d 1049 (Miss.1985); Hardy v. Brantley, 471 So.2d 358 (Miss.1985); Hall v. Hilbun, 466 So.2d 856 (Miss.1985); Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765 (Miss.1984). 3. Causation and the Magic Words... Reasonable Degree of Medical Certainty The trial court erred in ruling for Stinnett's motion for directed verdict on the basis that Braswell's medical expert did not base his opinion on a reasonable degree of medical certainty. The expert stated his opinion based on his experience, training and education, which was proffered in the direct voir dire in qualifying him as an expert. The trial court accepted Dr. Turk as an expert after the voir dire going through the Daubert v. Merrell Dow 91Page

10 Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), rule of qualifying him as an expert in his field. In considering the issue of causation, the United States Supreme Court held that "causation does not turn on the use of a particular form of words by the physicians in giving their testimony". Sentilles v. Inter-Caribbean Shipping Corp., 361 U. S. 107, 109, 80 S.Ct. 173,4 L.Ed.2d 142 (1959) quoted in Daughtery, 906 So. 2d 108. However, testimony in terms of medical probability, rather than possibility, is required by Mississippi law. Daughtery, 906 So. 2d 108 (The mere use, or non-use, of the word probability in expert medical opinion testimony is never a substitute for determining the reliability of an expert medical opinion. The semantic illustration was not offered as a script for expert medical testimony, rather it reflects the substantive requirement that the expert medical opinion testimony must be reliable.). See also, Catchings v. State, 684 So.2d 591 (Miss.1996), wherein the court made an analysis of the issue of not finding the medical expert's testimony competent because he failed to state his opinion in terms of a "reasonable degree of medical probability. There, the court stated that in such a situation that the expert's testimony is not necessarily classified as inadmissible; rather "the fact that the expert cannot support his opinion with certainty goes only to its weight not its admissibility. Id. Braswell's expert never speculated in his testimony. Rather, he stated definitively his opinions as to the standard of care, that Stinnett breached the standard of care, and that the breach caused Braswell's injuries and damages. See, Catchings, supra., citations 10 I P age

11 ,--~~ omitted. Therefore, the trial court erred in granting Stinnett's motion for directed verdict. Thus, the court should reverse and remand the case herein. B. CONCLUSION The trial court committed error in granting Stinnett's motion for directed verdict. Therefore, the Appellate Court should reverse the decision of the trial court and remand the case for a trial on the merits. Respectfully submitted, BENNIE E. BRASWELL, JR., By: SHIRLEY q;)lyers emsit' BYERS LAW FIRM P. O. BOX 5008 HOLLY SPRINGS, MS TELEPHONE: FACSIMILE: ATTORNEY FOR BENNIE E. BRASWELL, JR. lllpage

12 CERTIFICATE OF SERVICE I, Shirley C. Byers, Attorney for the Appellant/Plaintiff, do hereby certify that I have this date delivered, via United States mail, first class, postage prepaid, a true and correct copy of the above and foregoing document to the following: Darrell Baker, Esq. Baker & Whitt, PLLC 6800 Poplar Avenue, Suite 205 Memphis, TN Richard Underwood, Esq. Underwood/Thomas 9037 Poplar Avenue, Suite 101 Memphis, TN This 23 rd day of September I P age