IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Feb :59: CA Pages: 18 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TAMARA GLENN, INDIVIDUALLY AND ADMINISTRATRIX FOR THE ESTATE OF MATTIE HAZEL ALDRIDGE, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR MATTIE HAZEL ALDRIDGE APPELLANT VS. Cause No CA JAMES T. PEOPLES, M.D.; CORPORATIONS A-G; JANE DOES A-G; AND JOHN DOES A-G APPELLEE APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI BRIEF OF TAMARA GLENN, APPELLANT ORAL ARGUMENT NOT REQUESTED William Wes Fulgham, MB# MORGAN & MORGAN, P.A. 188 E. Capitol Street, Suite 777 Jackson, MS (601) (601) facsimile COUNSEL FOR APPELLANT, TAMARA GLENN -1-

2 CERTIFICATE OF INTERESTED PERSONS In order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal, the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case: a. Tamara Glenn, Appellant; b. William W. Fulgham, Morgan & Morgan, P.A., Counsel for Appellant; c. James T. Peoples, M.D., Appellee; d. D. Jason Childress, and Kimberly Howland, Wise Carter Child & Caraway, Counsel for Appellee; e. Honorable William Gowan, trial Judge. THIS, the 9 th day of February, /s/ William Wes Fulgham WILLIAM WES FULGHAM -2-

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...2 TABLE OF CONTENTS...3 TABLE OF AUTHORITIES...4 STATEMENT REGARDING ORAL ARGUMENT...5 STATEMENT OF THE ISSUE...6 I. INTRODUCTION...7 II. STATEMENT OF THE CASE...8 III. UNDISPUTED FACTS IV. SUMMARY OF THE ARGUMENT V. LEGAL ARGUMENT VI. CONCLUSION CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES CASES Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56 (Miss. 1996)..12 Bullock v. Patterson, 71 So.3d 1258, 1263 (Miss. 2011)..16 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997)..12 Coleman v. Rice, 706 So.2d 696, 698 (Miss.1997).. 13 Delta Reg l Med. Ctr., v. Venton, 964 So.2d 500, 504 (Miss.2007) 12 Donald v. Amoco Production Co., 735 So.2d 161, 174 (Miss. 1999) 17 Erby v. N. Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995) 13 Glover v. Jackson State University, 968 So.2d 1267 (Miss. 2007) McDonald v. Memorial Hosp. at Gulfport, 8 So.3d 175, 180 (Miss.2009) 12 Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005) 12 Southland Mgmt. Co. v. Brown, 730 So.2d 43 (Miss. 1998).16 Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 650 (Miss.2009)..12 Vicksburg Healthcare, LLC v. Dees, 152 So.3d 1171 (Miss. 2014)..11 Wilner v. White, 929 So.2d 315 (Miss. 2006).12 RULES M.R.C.P

5 STATEMENT REGARDING ORAL ARGUMENT Appellant submits that oral argument is not necessary to a resolution of the issue on appeal. The issue presented involves application of unambiguous law to undisputed facts; the parties positions are clear and the record uncomplicated. The facts and legal arguments can be adequately presented in the briefs and appellate record and the decisional process of this Court would not be significantly aided by oral argument. M.R.A.P. 34 (a)(3). -5-

6 STATEMENT OF THE ISSUE The Lower Court Committed Error by Granting Summary Judgment to the Defendant based on the Defendant s Affirmative Defense of Intervening, Superceding Cause. -6-

7 I. INTRODUCTION On Defendnat s Motion for Summary Judgment, a hearing was conducted which centered on the Defendant s Affirmative Defense regarding intervening, superceding causation. The hearing made clear that the Plaintiff had met her burden, through expert testimony, of setting forth the standard of care, a breach of the standard of care, and causation of death due to that breach. Contrary to Rule 56, and settled case law on causation, the trial court entered summary judgment in favor of the Defendant. -7-

8 II. STATEMENT OF THE CASE This appeal originated with Tamara Glenn s complaint, which alleges that James T. Peoples, M.D., is liable for the wrongful death of Mattie Aldridge. The Defendant ( Dr. Peoples ) answered in a timely fashion, asserting all defenses available and denying the allegations of the complaint. After extensive discovery, including depositions of the Plaintiff s expert, the Plaintiff, Dr. Peoples, and Dr. Peoples expert, Dr. Peoples filed a motion for summary judgment and set it for hearing. The trial court took the matter under advisement and entered a Final Judgment, from which Glenn has timely appealed. -8-

9 III. UNDISPUTED FACTS The pertinent facts in the case before this Court are most clearly presented in the form of a timeline. This timeline is taken directly from the Expert Report of Plaintiff s expert, Dr. Christopher Davey, which is of record (R ) and the factual account of which was undisputed: 10/11/08- St. Dominic s Jackson Memorial Hospital admission with a chief complaint of weakness. She had "residual right sided weakness" (from an old nonhemorrhagic stroke). She had coffee ground emesis (this is altered blood typically from a stomach bleed) in route to the hospital. She was on Plavix, (a blood thinner which makes bleeding more likely and more severe). Assessment- 1) UGIB (upper gastro-intestinal bleed) 2) Acute right sided weakness 3) Hypertensive emergency 4) She appears to be hemodynamically unstable from a GI bleed. - Per Joseph Bosarge, MD. 10/12/08- Consult James Parker, MD (presumably a neurologist), "because of the GI bleeding, she of course cannot be on blood thinners". 10/15/08- IVC filter placed for a deep venous thrombus in the leg (an inferior vena cava filter is frequently used to prevent a leg deep venous blood clot from breaking loose and becoming a pulmonary embolus in cases where anticoagulation is contra-indicated, as here). 10/20/08- Discharge Summary states "she apparently had a stroke in 2006 with residual right sided weakness. -Sam Dalvi, MD. 1/4/09-1/07/09- St. Dominic s admission: - Delirium, Dehydration - CT negative for acute CVA 4/24/10- St. Dominic's admission: -Acute right leg DVT- The leg is swollen, nontender in the ER. Dr. Peoples states; -9-

10 "She had a DVT back in 2008, and she actually had an IVC filter placed at that time...because she had a GI bleed". She does have a history of GI bleed and anemia, (now) has evidence of anemia with hemoglobin of 9.7 (normal about 14). (The anemia was within a reasonable degree of medical probability, secondary to GI bleeding, secondary to aspirin. NOTE: Dr. Peoples states in his assessment/plan anemia with history of gastrointestinal bleed as well as anterior abdominal pain, suggestive of internal bleeding). Dr. Peoples plan- "will start her on Lovenox and Coumadin. With her history of prior GI bleeding and anemia (this) makes treatment more difficult-will need to monitor her for bleeding". The Discharge Summary for the 4/24-4/30/10 admission was dictated 6/16/10, 6 weeks after her discharge. Nine days later she is readmitted to St. Dominic's Hospital again. Ms. Aldridge was on a very high dose of coumadin for an elderly lady, -7.5mg daily. 6/25/10- History & Physical dictated by Dr.Peoples states: - Admit with headache, right hemorrhagic stroke (brain bleed) and left sided weakness (a major acute stroke). (She is toxic from the coumadin with an INR of 3.7. She is over-anticoagulated, and her blood is very thin making a bleeding event likely). 7/8/10- PEG tube placed again, as she was unable to eat properly, secondary to stroke. Consult Orhan Ilercil, MD (neurosurgeon) on 6/25/10. He states; - "Intracranial hemorrhage secondary to combination of hypertension and anticoagulation" 7/30/10- St. Dominic's admission to Dr. Peoples for DVT, pain control. - "we elevated her lower extremity. I put her on Lorcet for pain. She had marked improvement with her symptoms". A "history of hemorrhagic CVA which precludes her from being on coumadin". (So does history of GI bleed-see attachment) Jeffrey Leduff, MD 8/9/10-8/1 3/10- Admitted for acute shortness of breath. 9/6/10-9/10/10- Admission to St. Dominic's for shortness of breath. Dr. Peoples diagnoses: "Asthma exacerbation". - Follow up was to be in 2 weeks, but by then she is dead. -10-

11 9/24/10- Ms. Aldridge dies. The death certificate signed by Stephanie Meachum from the Medical Examiner s office, states cause of death as Cardio-pulmonary arrest, secondary to Hemorrhagic stroke. IV.SUMMARY OF THE ARGUMENT Based on the Expert Report and deposition testimony of Glenn s expert, Dr. Davey, the Plaintiff had presented evidence to carry her burden of showing, through expert testimony, that: (1) the defendant doctor had a duty to conform to a specific standard of care; (2) the he breached that standard of care; and (3) that his breach caused or contributed to the death of Mattie Aldridge. The hearing on Peoples Motion for Summary Judgment made clear that, while the Plaintiff had met this burden, the Defendant based his prayer for dismisaal on the weight of his Affirmative Defense of intervening, superceding causation. Nealry the entirety of Peoples argument rested on his claim that the actions of the nursing home doctor who attempted, unsuccessfully, to carry out his order for the contra-indicated blood thinner constituted an efficient, intervening cause. Ultimately, the trial court accepted this theory and, contrary to Rule 56 and prevailing case law, granted summary judgment. V.LEGAL ARGUMENT A. SUMMARY JUDGMENT STANDARDS On appeal, the de novo standard is applied to the grant or denial of a motion for summary judgment. Vicksburg Healthcare, LLC v. Dees, 152 So.3d 1171 (Miss. 2014). In considering this issue, we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and -11-

12 affidavits. Wilner v. White, 929 So.2d 315, 318 (Miss. 2006)(citing Aetna Cas. & Sur. Co.v.Berry, 669 So.2d 56, 70 (Miss. 1996)). The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact. Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005). Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position. Wilner, 929 So.2d at 319. In reviewing a motion for summary judgment, the court views the facts and the inferences to be drawn from those facts in the light most favorable to the nonmovant. See Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997). B. ARGUMENT AND AUTHORITIES In order to establish a prima facie case of medical negligence, a plaintiff must prove that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to the required standard; (3) the defendant s breach of duty was a proximate cause of the plaintiff s injury, and (4) the plaintiff was injured as a result. Vaughn v. Miss.BaptistMed.Ctr., 20 So.3d 645, 650 (Miss.2009) (citing McDonald v. Memorial Hosp. at Gulfport, 8 So.3d 175, 180 (Miss.2009) (quoting Delta Reg l Med. Ctr., v. Venton, 964 So.2d 500, 504 (Miss.2007). The general rule in Mississippi is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand negligence as a matter of common sense and practical experience. Id. (citingcoleman v. Rice, 706 So.2d 696, 698 (Miss.1997) (quoting Erby v. N. Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995). -12-

13 The evidence presented by the plaintiff must be given the benefit of all favorable inferences that may reasonably be drawn therefrom. Partin v. N. Miss. Med. Ctr., 929 So.2d 924, 929. At the summary judgment level, the court does not set out to finally determine negligence nor the extent of damages ; rather the court upon a motion for summary judgment, merely determines if there are any disputed material issues of fact when the plaintiff s evidence is given the benefit of all reasonable inferences in its favor. Id. Issues of fact regarding the applicable standard of care were obviously present in that Plaintiff s expert, Dr. Davey, attested to one standard and Dr. Peoples attested to the opposite standard. See Wilner, 929 So.2d at 319. Dr. Davey set forth that the standard of care in treating a recurrent deep vein thrombosis (DVT) was to prescribe blood thinners unless the same was contra-indicated. Contraindications include age, high blood pressure, and in particular, a prior history of bleeding. (R ). In support of his opinions on this standard of care, Dr. Davey cited to several articles and other medical literature. (R ). In the case of a patient, such as Plaintiff s decedent, who had had an IVT filter placed in her veins to prevent an empbolus from traveling from the legs to the lungs, the risk of pulmonary embolus is essentially not possible. (R. 390). Dr. Peoples, citing to the medical literature, attested that the recurrent DVT equals life-long anticoagulation. (R. 502). When pressed on the medical literature, he could not provide a citation, but stated simply that is the standard of care for recurrent DVT. Id. -13-

14 The hearing transcript makes clear that, rather than view the evidence with respect to the standard of care in the light most favorable to the non-movant, the trial court did the opposite. The Court expressed early on a personal familiarity with being placed on blood thinners. (Tr. 8). The trial court would later expound and disclose that blood thinners had been prescribed personally due to a DVT that resulted in pulmonary embolus. (TR. 41). Removing any doubt that the trial court adopted the standard of care of the movant was the statement Deep vein thrombosis what is every doctor that ever treats that what do they do? They put them on a blood thinner. (Tr. 24). The failure to view the evidence in the light most favorable to the non-movant, and allow for the standard of care attested by the Plaintiff s expert constituted reversible error. It should be noted that no legitimate dispute exists as to the next two necessary elements, breach and causation. It is undisputed that Dr. Peoples prescribed Coumadin for Ms. Aldridge, which was a breach in Dr. Davey s opinion. (R. 416, stating [i]f she hadn t been on the Coumadin, then she wouldn t have needed any monitoring, so mainly I think this is on Dr. Peoples front door.. ). As to causation, Dr. Davey relied on the finding in the Death Certificate that the death was Cardio-pulmonary arrest, secondary to Hemorrhagic stroke. See Dr. Davey s Expert Report (R. 373). This opinion was further supported by the finding of her treating neurosurgeon that the stroke that preceded her death was secondary to a combination of hypertension and anticoagulation. (R. 528). Even Dr. Peoples could not disagree with the finding of the treating neurosurgeon that anticoagulation played a role in Ms. Aldridge s stroke, stating It s not that I completely disagree. (R. 508). Further, with respect to the time between the -14-

15 stroke and her subsequent death, Dr. Peoples acknowledged that the passage of time between the stroke and the death could not alone be the basis for dismissing the stroke as a causative or contributing factor in her death. (R. 507). The trial court further erred in accepting as proven Dr. Peoples Affirmative Defense of intervening, superceding cause. In the hearing, the trial court almost immediately went to this issue during undersigned counsel for the Plaintiff s argument. (Tr. 23). Certainly Dr. Peoples would be permitted to put on his case on this defense at trial. The failure, however, of Dr. Peoples affirmative defense being a dispositive issue springs not only from the improper shifting of the burden to the Plaintiff to disprove his defense, but also springs directly from the law on intervening, superceding causation. In order to prevail on the affirmative defense of intervening, superceding cause, a defendant must show that the cause was unforeseeable. In the case of Glover v. Jackson State University, 968 So.2d 1267 (Miss. 2007), the Mississippi Supreme Court offered clarification on the law of proximate causation, succinctly summarizing the relevant tenets as follows: For a particular damage to be recoverable in a negligence action, the plaintiff must show that the damage was proximately caused by the negligence. In order for an act of negligence to proximately cause the damage, the fact finder must find that the negligence was both the cause in fact and legal cause of the damage. Dobbs, The Law of Torts, 180 at 443 (2000). A defendant's negligence is the cause in fact of a plaintiff's damage where the fact finder concludes that, but for the defendant's negligence, [11] the injury would not have occurred. Stated differently, the cause in fact of an injury is "that cause which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which -15-

16 the injury would not have occurred." Gulledge v. Shaw, 880 So.2d 288, 293 (Miss. 2004). A defendant's negligence which is found to be the cause in fact of a plaintiff's damage will also be the legal cause of that damage, provided the damage is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act. Dobbs, The Law of Torts, 180 at 443. Glover v. Jackson State University, 968 So.2d at 1277; see also Bullock v. Patterson, 71 So.3d 1258, 1263 (Miss. 2011). The Glover Court also addressed the issue of intervening, superceding causation, and held cogently that [o]ur precedent clearly establishes that, where the intervening cause of injury was foreseeable, it cannot supercede the liability of the defendant. Id. at SeealsoSouthlandMgmt.Co.v.Brown,730So.2d43(Miss. 1998)(adopting by Appendix the opinion of the Mississippi Court of Appeals, which set forth a six-factor analysis from the Restatement of Torts relative to superceding causation). In the instant matter, drawing all reasonable inferences and viewing the evidence in the light most favorable to the Plaintiffs, a reasonable juror could conclude that Dr. Davey s opinions are correct, not only on the prima facie elements, but on the intervening, superceding causation question as well. As argued at the hearing on this matter, a reasonable juror could accept Dr. Davey s opinions that the fault in this matter lies with Dr. Peoples, and that a brain bleed is a reasonably foreseeable consequence of prescribing Coumadin in a lady with the risk factors of the Decedent. Particularly given that causation is generally a matter for the jury, Donald v. -16-

17 Amoco Production Co., 735 So.2d 161, 174 (Miss. 1999), the trial court committed error in ruling for the Defendant on this issue. Rather than construe these facts and reasonable inferences in favor of the non-movant, however, the trial court did the opposite and ruled in favor of Dr. Peoples on his Affirmative Defense. As with the improper analysis on standard of care, the trial court committed reversible error. VI. CONCLUSION For all of the aforementioned reasons, this Court should reverse the trial court s Final Judgment granting summary judgment and issuance of a Final Judgment, and remand the matter to the Hinds County Circuit Court. Respectfully submitted, this the 9 th day of February, TAMARA GLENN, APPELLANT BY: /s/ William Wes Fulgham WILLIAM WES FULGHAM OF COUNSEL: WILLIAM W. FULGHAM - MSB # MORGAN & MORGAN, P.A. 188 E. Capitol Street, Suite 777 Jackson, MS Telephone: Facsimile:

18 CERTIFICATE OF SERVICE I, William W. Fulgham, do hereby certify that I have this day forwarded, via THE Court s MEC filing system, a true and correct copy of the foregoing to: D. Jason Childress, Esq. Kimberly Howland, Esq. Wise Carter Child & Caraway Counsel for the Appellee Honorable William A. Gowan Circuit Court Judge THIS, the 9 th day of February, /s/ William Wes Fulgham WILLIAM WES FULGHAM -18-