E-Filed Document Oct 18 2016 20:03:54 2014-CA-00732-COA Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-00732 THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER APPELLANT VS. LEONTYNE LITTLETON, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF CLEOPATRA LITTLETON, DECEASED, AND HER WRONGFUL DEATH BENEFICIARIES APPELLEES APPELLEE S MOTION FOR REHEARING Crystal Wise Martin Miss. Bar No. 10860 Suzanne Keys Miss. Bar No. 5032 PRECIOUS MARTIN & ASSOCIATES 821 N. Congress Street P.O. Box 373 Jackson, Miss. 39205 T: 601.944.1447 Attorneys for Appellant
TABLE OF CONTENTS Table of Contents... ii Table of Authorities... iii Standard of Review... 1 Argument... 2 Conclusion... 10 Certificate of Service... 10 ii
TABLE OF AUTHORITIES Griffin v. N. Mississippi Med. Ctr, 66 So. 3d 670 (Miss. App.2011) 8 Ill. Cent. R.R. v. McDaniel, 951 So 2d 523 (Miss. 2006) 1. 5 Mariner v. Estate of Edwards, 964 So. 2d 1138 (Miss. 2007)..7 McClain v. State, 625 So.2d 774 (Miss. 1993) 6 Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss.2003) 6 Patterson v. Dr. Tibbs, 60 So.3d 742 (Miss. 2011) 7 Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, 1107-08 (Miss. 2007) 1, 5 MISSISSIPPI RULES OF APPELLATE PROCEDURE MRAP 40... 1 iii
Appellees. Leontyne Littleton, on behalf of the Estate of Cleopatra Littleton and her wrongful death beneficiaries, by and through her undersigned counsel and pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, moves this Court to grant a rehearing regarding its decision handed down on October 4, 2016, entitled The University of Mississippi Medical Center v. Leontyne Littleton, Individually and on behalf of the Estate of Cleopatra Littleton, deceased, and her wrongful death beneficiaries, No. 2014-CA-00732-COA wherein the Court reversed the Trial Court s judgment in favor of the Appellee. Rehearing is proper because the factual and legal conclusions of the Court are in error, the case must be reheard. STANDARD OF REVIEW A motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. Miss. R. App. Proc. 40(a). Rather, [t]he motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain[.] Id. A party seeking rehearing under Rule 40 shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Id. Since the Trial Court sat without a jury on this Torts Claims Act matter, his decision is to be granted the same deference as a chancery court judge which is the abuse of discretion standard. Ill. Cent. R.R. v. McDaniel, 951 So 2d 523, 526 (Miss. 2006) Thus, a trial judge s findings of fact will not be disturbed on appeal unless they are shown to be manifestly wrong or clearly erroneous. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, 1107-08 (Miss. 2007). As the fact-finder, the trial judge is solely responsible for resolving the weight and credibility of the evidence. E.g., McClain v. State, 625 So.2d 774, 778 (Miss. 1993). It is his responsibility, and his alone, to resolve any conflict or inconsistency in the evidence. Id. 1
ARGUMENT I. The Court s statement of the facts is in error as the Court disregarded evidence that created a dispute of facts that the trial court, and the trial court alone, was to determine. As stated above, as the fact-finder, the trial judge is solely responsible for resolving the weight and credibility of the evidence. Id. It is his responsibility and his alone, to resolve any conflict or inconsistency in the evidence. Id. From the review of the statement of facts and procedural history, this Court placed itself in the position of the trier of fact and disturbed the findings of fact without a showing that the Trial Court was manifestly wrong or clearly erroneous. There were several instances in the record in which the trial court was presented with disputed facts and the trial court made a determination regarding that dispute. All parties agree that upon her admission to UMMC on February 21, 2009 and throughout her treatment at UMMC, all her doctors, except Dr. Wofford, felt Ms. Littleton had bacterial meningitis. Even Dr. Wofford, himself, who saw her only once the day before she died, only thought it possible that she may have viral meningitis (P-2, p. 545). He continued to treat her with antibiotics as he would a patient with bacterial meningitis. The Expiration Summary (P-2, p. 551) said she likely had bacterial meningitis. The initial autopsy determined that she had bacterial meningitis partially treated (Ex. P-4). Thus, initially, the case was reviewed by all parties as a failure to properly treat bacterial meningitis. Accordingly, since treatment for bacterial meningitis requires the proper administration of antibiotics, Plaintiff s nursing expert, Patricia Ross s testimony concerning the infiltration of the IV is essential to establishing the nurses negligence. Infiltration means that the medication is not flowing into the blood stream but being absorbed by muscle tissue and further means that it is impossible to determine what dosage the patient is really being given. In footnote 4, the Court cites Nurse Ross s testimony that infiltrations do often 2
happen as if this exonerates the nursing staff from their negligence in improperly placing and monitoring the IV. Two years later, after litigation was filed, UMMC issued a revised autopsy report changing the cause of death to meningitis, probably of viral etiology. (Ex. P-9). However, when read in its entirety, it says CDC studies failed to show either bacterial or enteroviral etiology ; also that a predominantly lymphocytic meningeal meningitis is typical of viral meningitis but may be part of a bacterial meningitis that is only partially treated with antibiotics. In other words, the full revised autopsy report, when read in its entirety, does not find that Ms. Littleton died of viral meningitis. The Trial Court obviously took this report for what it is -- in essence, a Defendant in a lawsuit changing a critical piece of evidence. Either way (whether Ms. Littleton had bacterial meningitis that was negligently treated or whether Ms. Littleton had viral meningitis which required supportive care and monitoring), Dr. Wiggins testified that she should have been placed in ICU where the care and treatment would have been constantly monitored. He said she should have been placed in ICU on admission, having been diagnosed with the more serious and deadly bacterial meningitis, and certainly she should have been transferred there at 1:30 p.m. on Monday, February 23 rd, when Dr. Shoemaker-Moyle now notes her continuing head ache and neck stiffness; blurred vision; tingling in left hand and arm. Ex. P-2, p. 548. Despite these worsening neurological symptoms, which even Dr. Wofford testified were in fact changes in her condition that indicated a probable swelling in her brain, she was not transferred to the ICU. Instead Dr. Shoemaker-Moyle merely orders a CT scan that was never done. It is clear from the record that Ms. Littleton s heart stopped, she coded and died all without anyone at UMMC knowing this had happened. When she was found by her brother and a code called at 5:10, her body was already cold (Ex. 2 p. 549). She was supposed to be on 3
continuous pulse oximetry, but as even the Court noted, it was not working. An hour earlier, Ms. Littleton s temperature had risen to 102, her pulse is at 86 and her blood pressure dropped to 91/58. (Ex.P-2, 595). Nurse Fells explanation was that she had just given Ms. Littleton some morphine which she felt would account for her drop in blood pressure. This Court apparently accepted this explanation, erroneously replacing its assessment of the evidence for that of the Trial Court s. Indeed, the Trial Court could have discounted this explanation since Ms. Littleton s medical records show that she had been given morphine repeatedly over her hospital stay, and at no time did her blood pressure so precipitously drop, nor did her blood pressure drop to a point so significantly below her baseline. While the doctors responsible for her care, tried to similarly explain away these significant changes, Plaintiff s expert nurse and doctor testified that a doctor should have been notified. Even Dr. Wofford testified agreed - a doctor should have been notified about these changes. It was the last opportunity that UMC had to put Ms. Littleton into the ICU where she could have been monitored more closely. There was sufficient evidence in the record for the Trial Court to discount the opinions of UMMC s experts. Dr. Cassell and Dr. Wofford, were Ms. Littleton s treating physicians. A third doctor, namely Dr. Jo Deal, an infectious disease doctor, testified that in her opinion Ms. Littleton had viral meningitis. However, it is clear that from the medical records that none of Ms. Littleton s treating physicians diagnosed her meningitis as viral instead of bacterial. If Dr. Deal is to be believed, then all of Ms. Littleton s doctors diagnosed her incorrectly. On crossexamination, it was shown that Dr. Deal s criteria for determining whether lab results supported viral or bacterial meningitis differed from the Practice Guidelines for the Management of Bacterial Meningitis found in a 2004 article in Clinical Infectious Diseases which Dr. Deal admitted was authoritative. Under these criteria, and ultimately Dr. Deal admitted, that it was inconclusive whether Ms. Littleton had viral or bacterial meningitis. Moreover, Dr. Deal could 4
not have formulated her opinion based on the revised autopsy, because it had not even been done prior to Dr. Deal rendering her opinions. UMMC s expert Dr. Stoddard s testimony was contradicted even by UMMC s other physician experts. Dr. Stoddard testified that despite being diagnosed with meningitis, Ms. Littleton did not need to be placed in the intensive care unit; yet there would be instances of meningitis patients being placed in the ICU, but only if they were unstable or confused. Dr. Cassell had testified that instability would include an unstable blood pressure or blood pressure that was too low. Dr. Stoddard claimed that Ms. Littleton did not have these symptoms, when in fact the medical records reflect that on Monday, her condition worsened with new neurological symptoms presenting themselves and a significantly low blood pressure at 4 p.m. Dr. Stoddard did admit, however, that she ultimately suffered from cerebral edema for which he said there was no treatment. Yet, Dr. Wofford, another defense expert and treating physician, disagreed and said that relief of the swelling of the brain could be accomplished through a repeat lumbar puncture, clearly affecting Dr. Stoddard s credibility. Dr. Stoddard then testified that Ms. Littleton s change in vital signs at 4 p.m. on February 23 rd, in his opinion, showed that Ms. Littleton was finally resting. In fact, Ms. Littleton was not resting, but dying. Again, any dispute of fact in the record was for the trial of fact to determine. Since the Trial Court sat without a jury on this Torts Claims Act matter, his decision is to be granted the same deference as a chancery court judge which is the abuse of discretion standard. Ill. Cent. R.R. v. McDaniel, 951 So 2d 523, 526 (Miss. 2006). Thus, a trial judge s findings of fact will not be disturbed on appeal unless they are shown to be manifestly wrong or clearly erroneous. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, 1107-08 (Miss. 2007). As the fact-finder, the trial judge is solely responsible for resolving the weight and credibility of the 5
evidence. E.g., McClain v. State, 625 So.2d 774, 778 (Miss. 1993). It is his responsibility, and his alone, to resolve any conflict or inconsistency in the evidence. Id. II. The Court erroneously found the testimony of Plaintiff s expert, Dr. David Wiggins, on causation to be speculative and insufficient. Dr. Wiggins s experience with patients who have been diagnosed with meningitis, his knowledge of the standards of care for such patients, whether in the emergency room or as a hospitalist, his experience as a medical examiner and the medical director for the emergency room, his extensive experience and training determining the cause of death of patients qualified him to render opinions regarding Ms. Littleton s cause of death. Therefore, Dr. Wiggins was qualified to testify as an expert regarding causation because of his knowledge, skill, experience, training and education. A trial court's admission or exclusion of expert testimony is reviewed for abuse of discretion. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss.2003). The trial court's decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion. Id. There has been no such finding concerning the Trial Court s admission of Dr. Wiggins testimony. There was ample evidence to support the trial court s finding that UMMC s breach of the standard of care caused Ms. Littleton s death. Based on the evidence it was clear that Cleopatra Littleton did not have to die, no matter what type of meningitis she had. Dr. Wiggins succinctly stated that the initial goal in treating patients like Ms. Littleton is to have continuous monitoring because things can change rapidly in meningitis. (R.188). But here there was intermittent monitoring, deterioration in vital signs and neurologic status notes which Dr. Wiggins said were danger signs that warranted admission to the ICU. (R.188). The testimony of Dr. Wiggins and all the witnesses were for the trial court to weigh, and there was ample evidence to supports its decision that Dr. Wiggins had sufficiently testified as to causation. 6
In its opinion, this Court ruled that because Dr. Wiggins could not identify the specific complications of the meningitis that caused Ms. Littleton s heart to stop, his opinion that the ICU could have saved her life is mere speculation. It is clear from the record, that Ms. Littleton suffered specific complications of her condition -- she died because her body signals of distress (temp and low blood pressure) were not addressed at 4 p.m. nor was there any device monitoring her heart, which obviously stopped, causing her death. Dr. Wiggins did not have to specifically articulate the treatment that Ms. Littleton would have received had she been transferred to the ICU. In Mariner v. Estate of Edwards, 964 So. 2d 1138 (Miss. 2007). the expert doctor opined that the nursing home had failed to meet the nutritional needs of plaintiff; failed to do TPN feeding; and failed to transfer to a specialty hospital. Even though impeached on the first breaches of the standard of care (i.e. the expert admitted that most hospital patients were malnourished and that no one started TPN feeding until 2002 after plaintiff had died), the Court said taken as a whole there was sufficient testimony to establish a prima facie case of medical malpractice. Obviously the court was traveling on the third breach failure to transfer to a specialty hospital even though the expert did not testify as to what would have happened at the specialty hospital. In Patterson v. Dr. Tibbs, 60 So.3d 742 (Miss. 2011), the Court said that the expert testimony was sufficient when the doctor testified that a child should have been treated more aggressively when it got into distress and given medication to bring the child s blood pressure up. Though Dr. Wiggins did not specify a medical treatment, it was the failure of medical monitoring that he identified as the cause of her death. Moreover, the treatment she should have received on the floor in the last four hours of her life, as identified by her own treating doctors, would surely have been given in the ICU. This includes: 7
Dr. Shoemaker Moyle in his 1:00 exam was concerned about the new neurological symptoms and thought it may be something going on in her brain. He ordered a CT but between then and 5 p.m., it was not. Surely that CT would have been done in a timely fashion had she been in the ICU. Dr. Wofford said that if the CT showed some swelling of the brain, they could have done another Lumbar Puncture to relieve the pressure. Dr. Studdard and Dr. Cassell confirmed that there would be more frequent checks of her in the ICU every heartbeat, they said, would have been monitored. Thus the record does reflect what would have been done had she been in ICU and more closely monitored, even if Wiggins himself did not testify to it specifically. If nothing else, there would have been immediate intervention addressing the rise in her temp and the drop in her blood pressure at 4 p.m. and a code called immediately when her heart stopped. III. The Court erroneously found the testimony of Plaintiff s expert, Dr. David Wiggins, did not meet the loss of chance of recovery standard for causation. The Court s opinion relies on Griffin v. N. Mississippi Med. Ctr, 66 So. 3d 670 (Miss. App.2011), as precedent for the kind of physician/expert-witness testimony needed to establish causation. Based on Griffin, in order to establish the element of proximate cause, the plaintiff must prove that had proper care been administered, it is probable, or more likely than not, that a substantially better outcome would have resulted. The Court believes that the Plaintiff failed to prove that it was more probable than not that Cleopatra would have survived if the Defendants had not breached the standard of care. However, this is untrue. During the trial Dr. Wiggins specifically testified as follows: Q. Dr. Wiggins, do you have an opinion to a reasonable degree of medical probability as to the UMC's treating physician's negligence when she went to the UMC whether that proximately caused or contributed to Ms. Littleton's death? 8
A. Yes. I believe that the lack of adequate monitoring basically led to the patient's death almost directly because what could have been corrected wasn't even recognized until it was too late. MR. COLEMAN: Your Honor, I hate to keep interrupting, but again he's talking about what could have happen and he's speculating. He has told us that he doesn't know the exact mechanism of her death, and then he's now speculating that had, even though he doesn't know what it was, had she been in ICU they could have addressed what he doesn't even know it was. That's -- it's total speculation, Your Honor, as to what could have happened at the ICU whatever, we don't know and neither does he. THE COURT: All right. It's overruled. He can answer. THE WITNESS: I would -- just to elaborate on that, I would say that, you know, we have the capability to keep a person's lungs breathing, their circulation going, and their heart beating, in spite of whatever is wrong with them. Tr. P. 191-192 Tr. P. 195 Q. Dr. Wiggins, a little earlier you said that Ms. Littleton had an excellent chance of survival, and I want to make sure the record is clear. In Mississippi we have to use certain terms. Doctor, do you have an opinion as to whether Ms. Littleton more likely than not would have survived had these doctors and nurses not breached their standard of care? A. Yes. Q. What is that opinion? A. I'm almost certain that she would have survived. The Court erroneously states that treatment in ICU does not guarantee survival; it was mere speculation that ICU care would have changed Cleopatra s outcome, much less increased her probability of survival beyond fifty percent. However, Dr. Wiggins did not opine that the ICU treatment guaranteed survival but she would almost certain[ly] had survived with proper monitoring because all issues or complications could have been addressed sooner. Therefore, the Plaintiff did provide evidence that met the lost-chance-of-recovery standard. Had the proper care been administered( i.e. had she been admitted or at least transferred to ICU; continuous monitoring of her heart, a more timely CT scan, follow up lumbar puncture from the swelling of 9
her brain that had caused neurological deficits, and prompt intervention when she coded), Ms. Littleton s condition would not have deteriorated and led to death. CONCLUSION For the reasons set forth above, rehearing must be GRANTED, and the opinion must be withdrawn. The Appellee, Leontyne Littleton, respectfully requests that this Court withdraw its original opinion and affirm the lower court decision. RESPECTFULLY SUBMITTED, this the 18 th day of October, 2016. LEONTYNE LITTLETON, APPELLEE _/s/ Crystal Martin Crystal Wise Martin Crystal Wise Martin Miss. Bar No. 10860 Suzanne Keys Miss. Bar No. 5032 PRECIOUS MARTIN & ASSOCIATES 821 N. Congress Street P.O. Box 373 Jackson, Miss. 39205 T: 601.944.1447 ATTORNEYS FOR APPELLEE LEONTYNE LITTLETON CERTIFICATE OF SERVICE I hereby certify that I have this day served via ECF filing a true and correct copy of the above and foregoing to the following: Michael Coleman Attorney for UMC This the 18 th day of October, 2016. /s/ Crystal Martin Crystal Wise Martin 10