IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Mar :01: CA Pages: 29 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI KARL HODGES, Individually and on Behalf of other wrongful death beneficiaries Of ISAAC HODGES, Deceased and as administrator of the Estate of Isaac Hodges Appellant v. NO CA UNIVERSITY OF MISSISSIPPI MEDICAL CENTER Appellee BRIEF OF APPELLEE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER On APPEAL from the Circuit Court of Hinds County, Mississippi ORAL ARGUMENT NOT REQUESTED Walter T. Johnson, MSB #8712 Susan L. Steffey, MSB #9038 W. Abram Orlansky, MSB # Watkins & Eager PLLC 400 E Capitol Street (39201) Post Office Box 650 Jackson, Mississippi Telephone: (601) Facsimile: (601) wjohnson@watkinseager.com ssteffey@watkinseager.com aorlansky@watkinseager.com ATTORNEYS FOR APPELLEE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI KARL HODGES, Individually and on Behalf of other wrongful death beneficiaries Of ISAAC HODGES, Deceased and as administrator of the Estate of Isaac Hodges Appellant v. NO TS UNIVERSITY OF MISSISSIPPI MEDICAL CENTER Appellee BRIEF OF APPELLEE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER On APPEAL from the Circuit Court of Hinds County, Mississippi ORAL ARGUMENT NOT REQUESTED Walter T. Johnson, MSB #8712 Susan L. Steffey, MSB #9038 W. Abram Orlansky, MSB # Watkins & Eager PLLC 400 E Capitol Street (39201) Post Office Box 650 Jackson, Mississippi Telephone: (601) Facsimile: (601) wjohnson@watkinseager.com ssteffey@watkinseager.com aorlansky@watkinseager.com ATTORNEYS FOR APPELLEE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER

3 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI KARL HODGES, Individually and on Behalf of other wrongful death beneficiaries Of ISAAC HODGES, Deceased and as administrator of the Estate of Isaac Hodges Appellant v. NO TS UNIVERSITY OF MISSISSIPPI MEDICAL CENTER Appellee 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. 1. Karl Hodges, Appellant/Plaintiff 2. Celesta Hodges, wife of Appellant/Plaintiff and mother of decedent 3. University of Mississippi Medical Center, Appellee/Defendant 4. Hon. Jeff Weill, Sr., Hinds County Circuit Judge 5. Young, Wells, Williams P.A., attorneys of record for Appellant/Plaintiff 6. Jay M. Kilpatrick, attorney of record for Appellant/Plaintiff 7. Watkins & Eager PLLC, attorneys of record for Appellee/Defendant 8. Walter T. Johnson, attorney of record for Appellee/Defendant 9. Susan L. Steffey, attorney of record for Appellee/Defendant 10. W. Abram Orlansky, attorney of record for Appellee/Defendant So certified, this the 29th day of March, 2017 W. Abram Orlansky W. Abram Orlansky (MSB # ) 2

4 TABLE OF CONTENTS TABLE OF CONTENTS... 3 TABLE OF AUTHORITIES... 4 STATEMENT OF ISSUES... 6 STATEMENT ON ORAL ARGUMENT... 7 STATEMENT OF THE CASE... 7 SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION

5 TABLE OF AUTHORITIES Cases Cates v. Woods, 169 So.3d 902 (Miss. Ct. App. 2014)...14 Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200 (Miss. 1998)...12 Cleveland v. Hamil, 119 So.3d 1020 (Miss. 2013)...18 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)...23 Debrow v. Harless, 183 So.3d 904 (Miss. Ct. App. 2015)...14 Dixon v. Int'l. Harvester Co., 754 F.2d 573 (5th Cir. 1985)...19 Estate of Northrup v. Hutto, 9 So.3d 318 (Miss. 2009)...13, 14, 16 Foster ex rel. Foster v. Bass, 575 So.2d 967 (Miss. 1990)...26 Giannaris v. Giannaris, 960 So.2d 462 (Miss. 2007)...19, 20 Hall v. Hillbun, 466 So.2d 856 (Miss. 1985)...14, 17, 25, 26 Harris v. Shields, 568 So.2d 269 (Miss. 1990)...14, 16, 24 Henson v. Grenada Lake Med. Ctr., 203 So.3d 41 (Miss. Ct. App. 2016)...14 Hubbard v. Wansley, 954 So.2d 951 (Miss. 2007)...19, 20, 21 Illinois Cent. R.R. Co. v. Benoit Gin Co., 248 So.2d 246 (Miss. 1971)...23 Irby v. Travis, 935 So.2d 884 (Miss. 2006)...12 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)...23 Ladner v. Jordan, 848 So.2d 870 (Miss. Ct. App. 2002)...24 Magee v. Covington Cty. Sch. Dist., 96 So.3d 742 (Miss. Ct. App. 2012)...26, 27 Maxwell v. Baptist Memorial Hospital Desoto, Inc., 958 So.2d 284 (Miss. Ct. App. 2007)...14, 16 McGee v. River Region Med. Ctr., 59 So.3d 575 (Miss. 2011)...14 Michael J. v. County of Los Angeles, Dept. of Adoptions, 201 Cal. App.3d 859 (1988)...26 Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346 (Miss. 1990)... passim 4

6 Poole ex rel Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716 (Miss. 2005)...23, 24 Smith ex rel. Smith v. Gilmore Memorial Hosp., Inc., 952 So.2d 177 (Miss. 2007)...13 Travis v. Stewart, 680 So.2d 214 (Miss. 1996)...13, 18, 25 UMMC v. Pounders, 970 So.2d 141 (Miss. 2007)...12 West v. Sanders Clinic for Women, P.A., 661 So.2d 714 (Miss. 1995)...19, 20 5

7 STATEMENT OF ISSUES 1. In this bench trial, the trial court acted within its discretion in dismissing the case because Plaintiff s expert s testimony did not sufficiently establish a breach of an articulable standard of care. 2. The trial court acted within its discretion in finding Plaintiff s expert witness unqualified to testify regarding the standard of care applicable to the University of Mississippi Medical Center ( UMMC ) in its treatment of Plaintiff s decedent, and therefore dismissing the case. 3. The trial court properly executed its role as gatekeeper in striking Plaintiff s expert on multiple grounds, regardless of the precise nature of the motion pending before it. 4. The trial court further correctly noted an alternative basis for dismissal lay in the fact that Plaintiff s decedent, Isaac Hodges, undisputedly misled UMMC staff regarding his symptoms and condition, which informed UMMC s treatment decisions. 6

8 STATEMENT ON ORAL ARGUMENT Oral argument is unnecessary in this appeal, as the legal issues presented and the factual findings made by the trial court are clear from the record. Of course, the undersigned counsel stands ready and eager to participate in oral argument should the Court determine it would indeed be helpful. STATEMENT OF THE CASE Plaintiff filed his complaint on January 7, 2014 [R. 7-13] alleging UMMC was liable for medical malpractice due to the collective alleged negligence of members of its medical staff who provided medical care to Isaac Hodges, Plaintiff s decedent. It is undisputed that Isaac Hodges was admitted to UMMC shortly before midnight on January 9, 2013 with two gunshot wounds, one of which was on the left side of his abdomen. His injuries necessitated emergency abdominal surgery, which was performed in the early hours of January 10, Isaac Hodges had a second abdominal surgery on January 11, He remained at UMMC for several days, where he was monitored by UMMC physicians and nurses. As part of the monitoring process post-surgery, Isaac Hodges was asked whether he had had a bowel movement and whether he had passed gas. It is undisputed that these two factors are critical considerations when determining whether to discharge a patient or provide additional care after abdominal surgery. At trial, Isaac Hodges mother, Celesta Hodges, acknowledged that Isaac Hodges had untruthfully told his UMMC physicians and nurses that he had experienced a bowel movement and had passed gas. [Tr. 94]. Based in large part on the patient s representations that he had passed gas and had a bowel movement and other factors indicating his recovery from surgery was on track, UMMC discharged Isaac Hodges on January 15, Shortly after leaving the hospital, while still in Plaintiff s vehicle, Isaac Hodges 7

9 condition deteriorated and he was returned to UMMC. [Tr. 83]. Isaac Hodges died four days later, and an autopsy concluded the cause of death was homicide via complications from his gunshot wounds. [Exhibits Vol. 1 at 40-41] As Plaintiff s brief acknowledges at 3-4, the sole substantive issue in this case is whether UMMC may be held liable for medical malpractice for its decision to discharge Isaac Hodges on January 15, In an attempt to establish the required elements of medical malpractice, including the standard of care and UMMC s alleged breach thereof, Plaintiff designated Dr. Lawrence Brickman. During voir dire, Dr. Brickman testified he was employed by the fledgling Charles E. Schmidt College of Medicine at Florida Atlantic University as an associate professor of biomedical science. [Tr. 145]. The medical school did not have a general surgery residency program at the time of trial and was not scheduled to begin one until July 1, [Tr. 147]. At the time of trial, Dr. Brickman s medical practice did not involve serving as primary surgeon on any surgeries whatsoever and he had not served in that role for a decade. [Tr. 148]. Dr. Brickman acknowledged that he does not assess patients to make a determination as to whether or not they need surgery or... follow them after surgery. [Tr. 155]. Relevant to the present case, Dr. Brickman also acknowledged he has nothing to do with patient discharge decisions and had not for a decade prior to trial, nor had he had admitting privileges at any hospital during that period. [Tr ]. Also during voir dire, Dr. Brickman was asked about the standard of care applicable to UMMC in this case. Counsel for UMMC began: Q: You ve given testimony before that the standard of care is essentially, you know, how you would do a thing. A: I m sorry. Can you repeat that, please[?] Q: You have testified before that the standard of care is how you would do a thing? 8

10 A: Yes, I have. Q: And that is still your opinion today? A: Yes. Q: And you have said that if that understandably two physicians can differ in what they think a thing should be? A: Yes. Q: However, the one that is wrong about a thing, then that s the one who s breached the standard of care? A: It s a very broad question. And I have to be honest with you. Every case is different. And of course there are going to be diverging opinions between whether or not someone should have one thing or someone should have the other thing. But obviously when a patient comes out with a good outcome, the one who had that opinion is the proper one. [Tr ]. The discussion continued with more on previous testimony Dr. Brickman had provided in other cases: Q: Two reasonable physicians can disagree about a method of treatment of a patient and both be practicing within the standard of care? You said that s right. That s right, isn t it? A: Yes. Q: However, you qualified it. And you said that s right, provided the patient does really well. If the patient doesn t do well then the guy that was wrong didn t abide by the standard of care; right? A: Yes. Q: And you were asked they re really trying to figure out what you were saying about the standard of care. And here it says: You ve understood the standard of care to mean how you would have taken care of the patient? Yes, and your answer was yes. And if I haven t and it s some testimony but if you ve had relatively few complications then you feel that s really the way that you [proceeded] was the standard of care? 9

11 [Tr ]. A: That s correct. Q: Where did you learn that definition of standard of care, Doctor? A: Something that I just formulated in my own head. If you practice well you pay attention to detail, you have very few complications. I think you re defining the standard of care. At the close of voir dire, UMMC moved to strike Dr. Brickman and therefore to dismiss the case, as Dr. Brickman was Plaintiff s only expert witness. [Tr ]. The trial court took the motion under advisement and allowed Dr. Brickman to testify. [Tr ]. On cross examination, counsel for UMMC again asked Dr. Brickman to articulate a proper standard of care. Dr. Brickman once again relied on the improper standard of care he had derived in his own head, testifying UMMC breached the standard of care simply because Isaac Hodges did not ultimately have a positive medical outcome. [Tr. 232]. After Dr. Brickman s testimony, counsel for Plaintiff stated he had no more expert witnesses; his remaining witnesses would all offer non-medical testimony. [Tr ]. The trial court, having heard Dr. Brickman s full testimony, ruled from the bench that the case be dismissed for at least two independent reasons. First, Dr. Brickman was not qualified to testify as to the applicable standard of care. Second, and even more important according to the trial court, Dr. Brickman had failed to articulate a legally sufficient standard of care applicable to UMMC. The trial court further added that the case may well be subject to dismissal on a third ground: it was undisputed that Isaac Hodges had misrepresented his condition to UMMC, and that UMMC staff had acted on the lies Isaac Hodges told them about his abdominal functionality. [Tr ; R ]. The trial judge began his bench ruling by expressing sympathy for the Hodges family; his decision to dismiss the case as soon as it was clear Plaintiff could not make a prima facie case for medical malpractice, rather than force the family to sit through more 10

12 testimony about the young decedent when there was no chance of recovery, can only be described as an act of kindness and mercy. SUMMARY OF THE ARGUMENT Plaintiff s brief focuses largely on Dr. Brickman s supposed qualifications to testify in this case. The trial court was correct in dismissing this case not only because Plaintiff s sole expert witness was unqualified to opine on the standard of care applicable to UMMC in the care provided to Isaac Hodges, but also on two additional, independent, alternative bases. First, Dr. Brickman, even if he had been qualified, failed to articulate a sufficiently objective standard of care to establish medical negligence under Mississippi law. Second, it is undisputed that the physicians treating Isaac Hodges made healthcare decisions based on his own statements regarding his symptoms and conditions, which statements were undisputedly false. Accordingly, the trial court should be affirmed on any one, or all three, of these bases. Dr. Brickman articulated, at best, a subjective standard of care based on nothing more than what Dr. Brickman claimed he would have done in UMMC s shoes. At worst, he attempted to impose an improper strict-liability standard. Either way, his testimony was insufficient to support a claim for medical negligence. Dr. Brickman further lacked even a cursory familiarity with UMMC and its procedures, rules, and programs. He had not provided care similar to that provided to Isaac Hodges for a decade prior to testifying, and he had no affiliation with any hospital let alone one similar to UMMC for the same period of time. Finally, UMMC s physicians were entitled to rely on Isaac Hodges statements about his own symptoms and condition when making decisions about his healthcare. Any one of those factors would be sufficient to dismiss Plaintiff s case, and the trial court properly relied on all three. 11

13 Plaintiff attempts to focus his appeal on the question of Dr. Brickman s qualifications by arguing the only motion pending before the trial court dealt with the expert s qualifications and not the other two valid bases for dismissal. Indeed, Plaintiff s brief does not even address the third basis, that Isaac Hodges lied to his physicians and nurses at UMMC about his condition. The trial court acted well within its broad discretion in dismissing the case on three bases. ARGUMENT 1. Standard of Review Plaintiff s brief correctly notes that the standard of review regarding the trial court s decision to allow or disallow Dr. Brickman s testimony is an abuse of discretion. E.g., Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 210 (Miss. 1998). UMMC further agrees with Plaintiff that [u]nless the Court concludes that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the trial court s] decision will stand. Irby v. Travis, 935 So. 2d 884, 912 (Miss. 2006). Moreover, with respect to the trial court s factual findings, because this case was conducted via bench trial rather than a jury trial, the standard of review for the trial court s findings is the deferential manifest error/substantial evidence rule. UMMC v. Pounders, 970 So. 2d 141, 145 (Miss. 2007). Therefore, the trial judge s findings of fact are not to be disturbed unless manifestly wrong or clearly erroneous. Id. at 147. To the extent the trial court s decision to dismiss was based on its factual determination that Plaintiff could not make a prima facie case for medical negligence, this deferential standard applies. 12

14 2. The content of Dr. Brickman s testimony was insufficient to make a prima facie case for medical malpractice under Mississippi law. Plaintiff s brief first addresses the question of Dr. Brickman s qualifications. The trial court, however, correctly noted that the most alarming issue was not Dr. Brickman s lack of qualifications, but his clear inability to articulate the applicable standard of care which he contends should have been followed during Mr. Hodges discharge. [R. 334]. The trial court struck Dr. Brickman based on his lack of qualifications, and even more so, based on his failure to identify an applicable standard of care or any breach by UMMC related thereto. [R. 339] (emphasis added). Generally, a plaintiff seeking to prove a case of medical malpractice in Mississippi must do so using medical expert testimony. Smith ex rel. Smith v. Gilmore Memorial Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007), citing Travis v. Stewart, 680 So. 2d 214, 218 (Miss. 1996); see also Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997) ( general rule is that medical negligence may be established only by expert medical testimony ). The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff s selected medical expert. Estate of Northrup v. Hutto, 9 So. 3d 381, 384 (Miss. 2009). Even if a plaintiff s expert is qualified to opine as to the applicable standard of care, the plaintiff has still failed to prove a prima facie case of medical malpractice if the content of the expert s testimony fails to adequately articulate an objective, legally sufficient standard of care. E.g., id. at 387. Therefore, regardless of Dr. Brickman s qualifications, the trial judge was correct to dismiss the case based on Dr. Brickman s failure to articulate a legally cognizable standard of care. The trial court provided thorough legal analysis on this issue in its ruling from the bench. [R , ]. The court correctly stated that under Mississippi law, a physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an 13

15 undesirable result. Put otherwise, a [physician] is not an insurer of the success of his care and treatment. Harris v. Shields, 568 So. 2d 269, 273 (Miss. 1990). The court further relied on a 2009 Mississippi Supreme Court case for the notion that physicians incur civil liability only when the quality of care they render falls below objectively ascertained minimally acceptable levels. Hutto, 9 So. 3d at 384 (emphasis in original), quoting Hall v. Hillbun, 466 So. 2d 856, 871 (Miss. 1985). The Hutto Court further cited to Maxwell v. Baptist Memorial Hospital Desoto, Inc., 958 So. 2d 284, 289 (Miss. Ct. App. 2007) in noting that an expert who bases his testimony on what he would have done in the defendant s situation has not articulated an objective standard of care. Id. In sum, Hutto clearly establishes that a plaintiff s expert must articulate an objective standard of care. Id. These cases relied on by the trial court form but a small sample of the many Mississippi authorities reiterating that a plaintiff s expert must establish an objective, articulable minimal standard of care to successfully make a prima facie case of medical malpractice. See, e.g., McGee v. River Region Med. Ctr., 59 So. 3d 575, 578 (Miss. 2011) (plaintiff s expert must articulate an objective standard of care); Henson v. Grenada Lake Med. Ctr., 203 So. 3d 41, 45 (Miss. Ct. App. 2016) (expert must articulate objective standard to show what duty was owed plaintiff, and articulate how standard was breached); Debrow v. Harless, 183 So. 3d 904, 906 (Miss. Ct. App. 2015) (same); Cates v. Woods, 169 So. 3d 902, 906 (Miss. Ct. App. 2014) (same). It is perfectly clear that under Mississippi law a plaintiff s medical malpractice claim must fail in the absence of a qualified expert articulating an objective standard of care applicable to the defendant. It is equally clear that both how I would have done it and a de facto strict liability standard based solely on a negative medical outcome are insufficient to establish an 14

16 acceptable standard of care. Those, however, are the only attempts at establishing a standard of care that Dr. Brickman made in his testimony. As fully quoted above, Dr. Brickman acknowledged it was his opinion that the standard of care is how [he] would do a thing or how [he] would have treated a patient. [Tr ]. He further admitted it was his opinion that, although two physicians may reasonably disagree about the proper course of treatment and both be practicing within the standard of care, if the patient doesn t do well then the guy that was wrong didn t abide by the standard of care. [Tr. 170]. Dr. Brickman elaborated that if you practice well you pay attention to detail, you have very few complications. [Tr. 171]. That is, even if a physician pursues a reasonable course of treatment, Dr. Brickman would consider that treatment outside the standard of care if the patient has a negative medical outcome. When asked the source for this improperly subjective and outcome-dependent standard of care, Dr. Brickman replied that it was something I just formulated in my own head. [Tr. 171]. The trial transcript reflects that on cross examination, counsel for UMMC practically pleaded with Dr. Brickman to provide a sufficient standard of care: Q: And so if he was taking less pain medication and having less pain, will you admit that he was doing better? Less pain, less pain medication? A: I can t admit that because I know what happened to him. Q: Okay. See that s the problem. You can t I don t want you working backwards saying he died[,] therefore somebody must have breached the standard of care. I want you to find the breach of the standard of care. And the outcome of the patient is insignificant to the breach of the standard of care; do you not understand that? A: I understand. Q: Do you agree with that? A: I don t have to agree with it. 15

17 Q: You don t agree with that? A: No, sir. [Tr. 232] (emphasis added). Again, Dr. Brickman offered this testimony in the context of UMMC s counsel offering an opportunity for him to correct his earlier testimony and provide a legally sufficient standard of care. Instead, he stood by his position that a negative medical outcome reflects a breach of the standard of care. Clearly, then, Dr. Brickman failed to articulate a standard of care that is acceptable under Mississippi law. By offering a subjective standard of care based on what he claims he personally would have done in UMMC s situation, which he formulated in [his] own head, he failed to articulate an objectively ascertained standard as required. E.g., Hutto, 9 So. 3d at 384; Maxwell, 958 So. 2d at 289. And by relying on the patient s outcome as the basis for determining a physician has not lived up to the standard of care, Dr. Brickman impermissibly attempts to make UMMC an insurer of the success of [its] care and treatment. Harris, 568 So. 2d at 273. Even assuming Dr. Brickman was wholly qualified to testify as an expert in this case, the content of his testimony fell far below the standards required to prove medical malpractice in a Mississippi court. Indeed, Dr. Brickman s failure to articulate an objectively ascertainable standard of care was the trial court s top reason for properly dismissing Plaintiff s claim. Plaintiff contends Dr. Brickman s testimony was sufficient to support Plaintiff s medical malpractice claim, but this contention is without merit. Plaintiff attempts to save Dr. Brickman s testimony by noting he testified as to what he believed UMMC should have done when treating Isaac Hodges. Specifically, Plaintiff argues Dr. Brickman somehow articulated a standard of care by stating UMMC should have known Isaac Hodges was showing the signs of ischemic bowel syndrome. Pl. Br. at As discussed further below, Dr. Brickman based this 16

18 opinion in part on his belief that Isaac Hodges projectile vomited before being released, but that belief is based only on the testimony of Celesta Hodges and is not reflected in the medical records. [Tr ]. Therefore, Plaintiff curiously claims Dr. Brickman s testimony was sufficient because it holds UMMC responsible for failing to act on information it did not have. Dr. Brickman admits there is no evidence other than Celesta Hodges testimony that any UMMC staff was ever told by anyone that Isaac Hodges had vomited; UMMC cannot breach the standard of care by acting only on the information available to it. Palmer v. Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, (Miss. 1990), quoting Hall, 466 So. 2d at (standard of care based on information reasonably available to the physician defendant ). More importantly, even the segments of Dr. Brickman s testimony referenced in Plaintiff s brief do not articulate an objective standard of care. Dr. Brickman s testimony that Isaac Hodges was sent home prematurely is merely an ipse dixit and does not assist the factfinder in determining what the standard of care was and whether it was breached. The remainder of Dr. Brickman s testimony, as noted by the trial court and admitted by Dr. Brickman, amounts to nothing more than Dr. Brickman explaining that UMMC did not do exactly what Dr. Brickman claims he would have done in determining whether to discharge Isaac Hodges. Ultimately, Dr. Brickman s own testimony explains why he did not adequately establish a standard of care. He stated: 1) the standard of care was based on how he himself would have treated a patent [Tr ]; 2) a negative outcome is inherently indicative of a breach of the standard of care [Tr , 232]; and 3) his proposed standard of care was not objectively ascertained, but formulated in [his] own head [Tr. 171]. The segments cited in Plaintiff s brief cannot save Dr. Brickman from his own testimony, in which he admitted his standard of care does not meet the requirements of Mississippi law. 17

19 3. Dr. Brickman was not qualified to testify regarding the standard of care applicable to UMMC. Where a plaintiff fails to provide the required testimony from an expert who is properly qualified to opine on the standard of care applicable to the defendant, the case is subject to dismissal and/or summary judgment because without providing a medical expert witness, [plaintiff] would not be able to prove his prima facie case of medical negligence. Travis, 680 So. 2d at 218. As explained in the trial court s ruling, the failure to produce a competent medical expert prohibits the plaintiff from bringing the case to trial. [Tr. 333], quoting Cleveland v. Hamil, 119 So. 3d 1020, 1024 (Miss. 2013). The trial court correctly determined Dr. Brickman was not competent to testify as an expert regarding the standard of care applicable to UMMC s treatment of Isaac Hodges; therefore, applying Cleveland, it was as if Plaintiff had provided no expert witness at all and the case was properly dismissed with prejudice. [R , ]. The trial court s ruling on this issue was two-pronged. First, Dr. Brickman lacked qualification because he had not been involved as a primary surgeon, in post-operative care or in patient discharge for ten years. [R ]. Given that Dr. Brickman himself acknowledged the sole substantive issue in the case was whether Isaac Hodges was prematurely discharged after surgery, the trial court determined his ten-year absence from practicing in these relevant areas was significant. [R. 334]. Second, Dr. Brickman had never visited UMMC; admitted to unfamiliarity with its procedures, facilities, and staff; and at the time had no affiliations with any hospital anywhere. [R ]. The trial court correctly noted this testimony meant Dr. Brickman lacked the specific qualification articulated in Palmer, 564 So. 2d at 1358 (Miss. 1990), requiring knowledge and familiarity with the subject hospital or a similar hospital for an expert to testify as to the applicable standard of care. 18

20 The trial judge is afforded [the] widest possible discretion in determining whether an expert witness is sufficiently qualified to give opinion testimony in a medical malpractice case. Id. at 1357, citing Dixon v. Int l Harvester Co., 754 F.2d 573 (5th Cir. 1985). The trial court was well within its very wide discretion in concluding Dr. Brickman lacked the necessary qualifications to testify in this case. i. Dr. Brickman s lack of qualifications to testify about surgery, post-operative care, or patient discharge Plaintiff attempts to argue, essentially, that because Dr. Brickman attended medical school he was qualified to testify as to the standard of care applicable to UMMC s performance of surgery, post-operative care, and discharge decisions with respect to Isaac Hodges. Pl. Br. at 8. He bases this contention on Giannaris v. Giannaris, 960 So. 2d 462, 470 (Miss. 2007), a domestic case in which one party was attempting to introduce expert testimony from a social worker to discuss a child custody issue. Plaintiff s reliance on Giannaris is misplaced because Mississippi law imposes special requirements on experts seeking to testify in medical malpractice cases. The proposed expert witness need not necessarily practice in the same exact field as the defendant; [s]atisfactory familiarity with the specialty of the defendant doctor is, however, required in order for an expert to testify as to the standard of care owed to the plaintiff patient. Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007), citing West v. Sanders Clinic for Women, P.A., 661 So. 2d 714, 719 (Miss. 1995). Accordingly, even if a physician regularly provides the same type of care as is at issue in a medical malpractice case, he is qualified to testify only if he is sufficiently familiar with the standard of care applicable to the specialty practiced by the defendant when providing that type of care. Id. at

21 In Hubbard, the plaintiff suffered a subarachnoid hemorrhage and sued her physician, a specialist in internal medicine. She sought to introduce expert testimony from a neurosurgeon, and the trial court granted summary judgment in part because the expert was unqualified to testify as to the standard of care applicable to the defendant. This Court affirmed despite that the proposed expert had significant experience in treating subarachnoid hemorrhages, because the expert showed no familiarity with the standard of care applicable to an internal medicine specialist treating a subarachnoid hemorrhage. Id. at 958. The Hubbard Court relied on West, in which this Court similarly determined an oncologist with significant experience treating colon cancer was nonetheless unqualified to testify given he lacked knowledge of the standard of care applicable to the defendant, a gastroenterologist, in treating colon cancer. West, 661 So. 2d at 719. Therefore, Mississippi law requires articulation of a standard of care applicable to the specific situation at issue. A subjective belief as to how best to treat a patient s condition is insufficient. Contrary to Plaintiff s assertion based on Giannaris, simply having obtained a medical education many years before testifying does not qualify a person to testify as to the standard of care in any medical setting. To be qualified, Dr. Brickman would have had to demonstrate familiarity with the standard of care applicable to a facility such as UMMC in handling Isaac Hodges abdominal surgery, post-operative care, and discharge. By vaguely relying on Dr. Brickman s education as the basis for his qualification, Plaintiff essentially concedes his professional experience was insufficient to qualify him as an expert on the relevant standard of care. It is undisputed that the fledgling medical school where Dr. Brickman is on staff had only one residency program at the time of trial and that its surgery residency program was not set to begin until after trial [Tr ], yet Dr. Brickman sought to testify regarding UMMC s supervision of surgical residents. It is further undisputed that Dr. 20

22 Brickman has not been the primary surgeon on any surgery whatsoever since 2005, and accordingly is not permitted to be a board-certified surgeon. [Tr ]. Dr. Brickman has never been board certified in critical care medicine. [Tr. 149]. Dr. Brickman since 2005 has not provided post-operative patient care and has not made discharge decisions [Tr ], yet sought to opine that UMMC had failed to abide by the standard of care in providing postoperative care in making a discharge determination. In short, Dr. Brickman admitted at the time of trial that for over decade he had had no dedicated clinical responsibilities and no discharge responsibilities, had not performed surgery, and had had no admitting privileges at any hospital. [Tr ]. After hearing this testimony and more regarding Dr. Brickman s lack of qualifications, including his lack of familiarity with a specific standard of care applicable to UMMC providing post-operative care after abdominal surgery [Tr ], the trial court took UMMC s motion to strike Dr. Brickman as unqualified under advisement [Tr ]. Given that Dr. Brickman could not demonstrate sufficient familiarity with the appropriate standard of care and had not provided clinical treatment similar to that at issue here for over a decade prior to trial, the trial court s ultimate decision to grant the motion and strike the witness was certainly within its widest possible discretion in determining whether an expert is qualified to testify in a medical malpractice case. Palmer, 564 So. 2d at Dr. Brickman lacked the relevant training, experience, and familiarity with the proper standard of care, and the trial court properly struck him on that basis. See Hubbard, 954 So. 2d at ii. Dr. Brickman s lack of sufficient familiarity with UMMC or any similar hospital Beyond Dr. Brickman s general lack of qualifications, the trial court properly relied on Palmer to exclude Dr. Brickman on a more specific basis. The trial court drew an accurate 21

23 parallel between the excluded expert in Palmer and Dr. Brickman. There, this Court affirmed the exclusion of an expert who lacked both knowledge and familiarity with the hospital or similar facility. Palmer, 564 So. 2d at The trial court correctly noted that, like the proffered expert in Palmer, Dr. Brickman lacked the requisite familiarity and admitted that he had never visited UMMC and that he is unfamiliar with these facilities and their staff. [R. 333]; Id. Moreover, also similar to the excluded expert in Palmer, Dr. Brickman currently had no affiliations with any hospital anywhere. [R. 333]; Id. This Court also considered that the excluded expert in Palmer had had no hospital privileges for the nine years preceding trial, and the trial court here noted Dr. Brickman had had no such privileges in ten years prior to trial. [R. 333; Tr ]; Id. Plaintiff attempts to frame the trial court s reliance on Palmer as improper by insinuating the trial court held Dr. Brickman could not testify in this case critical of UMMC because Dr. Brickman had never visited the campus of UMMC. Pl. Br. at 11. The trial court s ruling says nothing of the sort. As Plaintiff correctly notes, an expert may become familiar with a certain hospital or similar facility in any number of ways. The issue here is that Dr. Brickman did not show the trial court he had obtained any familiarity whatsoever with UMMC s facilities, procedures, or policies, or those of a similar institution, using any available method. Plaintiff is correct that Palmer does not require a plaintiff s expert to physically visit a defendant hospital. What it does require, especially where the proposed expert has not himself had hospital privileges for a decade, is for him to take steps to develop some familiarity with the hospital or a similar facility. Dr. Brickman took no such steps, and his past ten years professional experience was certainly insufficient to bestow any such familiarity. Accordingly, the trial court was correct in concluding Dr. Brickman lacked not only the general qualifications 22

24 required of experts in medical malpractice cases, but even the basic familiarity with UMMC required by Palmer. 4. The trial court was within its discretion and authority to strike Dr. Brickman s testimony on all articulated grounds Plaintiff contends, as he did in his motion for reconsideration before the trial court, that the trial court erred in sua sponte striking Dr. Brickman s testimony as insufficient, and partially basing its dismissal of the case on that decision. Plaintiff claims such action was improper because the only pending UMMC motion was to strike Dr. Brickman entirely as unqualified, and no additional motion to strike Dr. Brickman s testimony was made. Importantly, Plaintiff cites no authority for this assignment of error. Pl. Br. at 7. As noted above, [t]he trial judge is afforded widest possible discretion in determining whether an expert witness is sufficiently qualified to give opinion testimony in a medical malpractice case. Palmer, 564 So. 2d at Unless an abuse of discretion is evident, the judge s determination will remain undisturbed on appeal. Id., citing Illinois Cent. R.R. Co. v. Benoit Gin Co., 248 So. 2d 246 (Miss. 1971). It is well established that the trial judge is to act as a gatekeeper, ensuring that expert testimony is both relevant and reliable. Poole ex rel Wrongful Death Beneficiaries of Poole v. Avara, 908 So. 2d 716, 723 (Miss. 2005), citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Relevance of expert testimony means it will, according to [Rule of Evidence 702], assist the trier of fact. Id., citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993). The trial court, acting in its role as gatekeeper, properly determined Dr. Brickman s failure to articulate a standard of care sufficient to support a prima facie case of medical malpractice rendered his testimony irrelevant and unreliable. Whether a motion was pending specifically seeking to strike his testimony on that specific basis is immaterial, 23

25 especially given the fact that the trial court was itself sitting as the trier of fact. That is, the trial court was uniquely well positioned to determine that Dr. Brickman s testimony could not possibly assist the trier of fact in determining whether UMMC breached the standard of care, because it did not establish any such standard of care. Once it was clear Plaintiff could not make out a prima facie case, the trial properly dismissed the claim. See, e.g., Ladner v. Jordan, 848 So. 2d 870, (Miss. Ct. App. 2002) (Where plaintiff fails to make a prima facie case, trial court must consider the evidence fairly, and dismiss a claim if the judge would find for the defendant. ) Plaintiff notes that under Harris, 568 So. 2d at 276, a lack of foundation or explanation in an expert s testimony goes to the weight of the evidence, not its admissibility. Pl. Br. at 8. Although the trial court correctly dismissed the case based on its role as gatekeeper in preventing inadmissible expert testimony to be admitted into evidence, Plaintiff s citation to Harris provides an alternative basis for affirming the trial court s decision. Because the trial judge in this case was the trier of fact, his determination that Dr. Brickman s testimony lacked sufficient weight and credibility to underpin a valid malpractice claim would, in and of itself, provide a sufficient basis to grant judgment to UMMC after the conclusion of Plaintiff s case. See Palmer, 564 So. 2d at 1355 ( Once a witness is determined to be qualified to render expert testimony, questions of weight and credibility of the testimony are determined by the trier of fact. ); cf. Poole, 908 So. 2d at 723 (expert testimony relevant if it will assist the trier of fact ). Plaintiff acknowledged after Dr. Brickman s testimony that he had no further medical evidence to present. [Tr ]. Having determined Dr. Brickman s testimony had no credibility and should be given no weight, the trial judge properly ruled in favor of UMMC. Palmer, 564 So. 2d at To the extent this Court determines the trial judge s ruling should have been in the form of a judgment as a matter of law rather than a dismissal with prejudice, the ultimate result would be no different 24

26 and thus the characterization was harmless error. Whatever the mechanism, without crediting Dr. Brickman s testimony, the trial court as factfinder could not as a matter of law have found for Plaintiff no matter what the remainder of his non-medical evidence had shown. E.g., Travis, 680 So. 2d at 218 (Miss. 1996). The trial court was within its discretion in ending the trial when it did, sparing Plaintiff and his family the pain of sitting through additional testimony about their deceased son with no chance of recovery. 5. The trial court properly dismissed the case on the alternative basis that Isaac Hodges provided UMMC physicians with false information regarding his symptoms and condition. As Celesta Hodges admitted, Isaac Hodges was not truthful in his statements to his treating medical professionals with respect to his symptoms and condition. [Tr ] Relying on Isaac Hodges statements that he had both passed gas and experienced a bowel movement two factors vital in determining whether to release a patient after abdominal surgery UMMC discharged him on January 15, It is undisputed that Isaac Hodges told UMMC staff he has passed gas and had a bowel movement. UMMC reasonably relied on his misrepresentations about his abdominal functionality. As the trial court noted, [i]t is arguable that this wrongful conduct of Isaac to mislead his medical providers, while not, per se, illegal, could serve as an alternative basis for a full or partial bar on the plaintiff s ability to recover here. [R. 338]. The standard of care in a medical malpractice case is based in part on the defendant s treatment decisions using information reasonably available to the physician defendant, i.e., symptoms, history, test results, results of the doctor s own physical examination, x-rays, vital signs, etc. Palmer, 564 So. 2d at , quoting Hall, 466 So. 2d at (internal alteration omitted). On the questions whether Isaac Hodges had, after surgery, experienced a bowel movement or flatulence, the information reasonably available to UMMC physicians was what Isaac Hodges told them when they asked. It is undisputed that these symptomatic factors 25

27 are crucial in determining whether a patient in Isaac Hodges position may be released. [Tr. 233]. Under Mississippi law, as shown in Palmer and Hall, UMMC cannot be held liable for acting on the information reasonably available to it. In a recent Mississippi Court of Appeals case, a plaintiff sued for medical malpractice after her son collapsed while practicing football and ultimately died, despite having been cleared for participation the day before by the defendant medical clinic. Magee v. Covington Cty. Sch. Dist., 96 So. 3d 742 (Miss. Ct. App. 2012). The jury returned a verdict for plaintiff, but the trial court granted defendants a judgment notwithstanding the verdict. Id. at In its ruling, the trial court held the jury s verdict was against the overwhelming weight of the evidence because the plaintiff and plaintiff s deceased withheld vital history and medical information on each of the occasions that he was seen by the defendant clinic. Id. at 748. The trial court concluded that because the record [was] clear that critical information was withheld from the defendant, to allow a verdict in plaintiff s favor in this medical malpractice case to stand would be to place the healthcare provider in the position of being an insurer of the results of its treatment. Id. The Court of Appeals affirmed, holding the patient bears the responsibility to provide proper medical history to the medical provider. Id. at 749, citing Foster ex rel. Foster v. Bass, 575 So. 2d 967, 980 (Miss. 1990) (quoting Michael J. v. County of Los Angeles, Dept. of Adoptions, 201 Cal. App. 3d 859 (1988) ( There must be a good faith full disclosure of material facts concerning existing or past conditions of the child s health.... Public policy cannot extend to condone concealment or intentional misrepresentation. )). It is undisputed that Isaac Hodges falsely told UMMC staff that he had experienced a bowel movement and passed gas on January 15, 2013, before his discharge. Dr. Brickman attempted to justify these misrepresentations by speculating that Isaac Hodges was simply trying to ensure he would be discharged. [Tr ]. In fact, that 26

28 explanation further emphasizes the Magee precedent is directly on point. There, the patient was seeking clearance to play football and misrepresented his medical history to facilitate that clearance. If Isaac Hodges motivation in misrepresenting his condition to multiple medical professionals at UMMC was to mislead his providers into discharging him, he achieved that goal as did the plaintiff in Magee. He failed to perform his responsibility to provide proper medical history to the medical provider, which is a bar to recovery. Magee, 96 So. 3d at 749. Accordingly, even if this Court were to determine Dr. Brickman was a qualified expert and his testimony was sufficient under Mississippi law, the trial court should be affirmed on the basis that Plaintiff cannot recover where UMMC relied on the misrepresentations of the patient, Isaac Hodges. CONCLUSION The trial court identified three independent bases for dismissal of this medical malpractice action, any one of which would have been sufficient on its own. Mississippi law requires a prima facie case of medical malpractice to be proven using medical expert testimony which established an objective, applicable standard of care. Plaintiff s expert failed to establish such a standard, and in any event was not even qualified to do so. In the alternative, the trial court was correct to dismiss the case based on the undisputed evidence that Isaac Hodges lied to his treating physicians and nurses, resulting in their making the healthcare decisions over which Plaintiff now sues. The trial court s dismissal should therefore be affirmed on any one, or all three, of these bases. 27

29 CERTIFICATE OF SERVICE I do hereby certify that I filed the foregoing in this Court via the Mississippi Electronic Courts system, which sent a true and correct copy to all counsel of record. Mail to: I do hereby further certify that I served a true and correct copy of the foregoing via U.S. Honorable Jeff Weill, Sr. P. O. Box Jackson, MS SO CERTIFIED, this the 29th day of March, /s/ W. Abram Orlansky W. Abram Orlansky 28