E-Filed Document Jan 21 2016 16:47:42 2014-CA-00231-SCT Pages: 15 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO. 2014-CA-00231 TAMARA GLENN, INDIVIDUALLY AD ADMINISTRATRIX FOR THE ESTATE OF MATTIE HAZEL ALDRIDGE, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR MATTIE HAZEL ALDRIDGE APPELLANTS VS. JAMES T. PEOPLES, M.D. APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI MOTION FOR REHEARING OF APPELLANT TAMARA GLENN William Wes Fulgham (MB#99159) Morgan & Morgan, P.A. 188 East Capitol Street, Suite 777 Jackson, Mississippi 39201 (601) 949-3388 (601) 949-3399 - facsimile Counsel for Appellants -1-
TABLE OF CONTENTS TABLE OF CONTENT TABLE OF AUTHORITIES... 3 I. STATEMENT OF THE CASE AND INTRODUCTION... 4 II. SUMMARY OF ARGUMENT... 4 III. ARGUMENT: THIS COURT OVERLOOKED OR MISAPPREHENDED POINTS OF FACT AND LAW IN AFFIRMING THE TRIAL COURT S GRANT OF SUMMARY JUDGMENT IN FAVOR OF DR. PEOPLES 5 IV. CONCLUSION... 13 CERTIFICATE OF SERVICE... 15-2-
TABLE OF AUTHORITIES CASES Banks v. Sherwin Williams Co., 134 So.3d 706 (Miss. 2014) 5 Canton Broiler Farms, Inc. v. Warren, 214 So.2d 671 (Miss. 1968)...9 Causey v. Sanders, 998 So.2d 393 (Miss. 2008) 10 Duckworth v. Warren, 10 So.3d 433 (Miss. 2009) 5 Entrican v. Ming, 962 So.2d 28 (Miss. 2007)...11 Glenn v. Peoples, No. 2014-CA-00231-SCT (Miss. Dec.10, 2015) 8 Howell v. Equipment, Inc., 170 So.3d 592 (Miss.App. 2014)...12 Lift-All Co. v. Warner, 943 So.2d 12 (Miss. 2006)..12 Meridian Hatcheries Inc. v. Troutman, 93 So.2d 472 (Miss. 1957). 9 O Cain v. Harvey Freeman & Sons Inc., of Miss., 603 So.2d 824 (Miss. 1991) 12 Southland Management Co. v. Brown, 730 So.2d 43 (Miss. 1998)..10 RULES M.R.A.P. 40 OTHER Restatement (Second) of Torts 440 (1965) -3-
MOTION FOR REHEARING COMES NOW Tamara Glenn, individually, as Administratrix for the Estate of Mattie Hazel Aldridge, and on behalf of the Wrongful Death Beneficiaries for Mattie Hazel Aldridge, hereinafter referred to as Glenn, by and through her attorneys, and files this her motion for rehearing, pursuant to M.R.A.P. 40 (a), and in support thereof would show unto the Court the following, to wit: I. STATEMENT OF THE CASE AND INTRODUCTION Mattie Hazel Aldridge ( Aldridge ) died on September 24, 2010, as a result of a hemorrhagic stroke or brain bleed. Two months before her death, despite that her medical history indicated Aldridge should never again be given blood thinners, Dr. James T. Peoples ( Peoples ) released Aldridge from St. Dominic s hospital with a discharge order to remain on Coumadin, a blood thinner, indefinitely. Peoples was the physician who, for years, had exercised primary responsibility for Aldridge s vascular care. Consequently, Glenn filed the underlying lawsuit seeking to hold Peoples liable for Aldridge s death. Despite the existence of genuine issues of fact regarding breach and proximate cause, the trial court granted Peoples motion for summary judgment and this Court affirmed. Glenn respectfully submits that this Court s opinion overlooks and misapprehends particular points of law and fact. M.R.A.P. 40 (a). II. SUMMARY OF ARGUMENT Pursuant to M.R.C.P. 40(a), a motion for rehearing shall state with particularity the points of law or fact which this Court has overlooked or misapprehended. Glenn submits that this Court, in affirming the trial court s grant of summary judgment, (1) -4-
overlooked or misapprehended the standard of review which requires viewing the evidence and all inferences reasonably drawn therefrom in the light most favorable to Glenn; (2) overlooked the fact that Dr. Peoples exercised primary responsibility for Aldridge s vascular care; (3) overlooked the fact that Dr. Peoples discharged Aldridge from St. Dominic with orders to remain on Coumadin indefinitely; (4) overlooked that Dr. Peoples discharge order does not mention continued blood monitoring on Aldridge after discontinuation of the Lovenox; (5) overlooked the reasonable inference that Dr. Jones acted in deference to Dr. Peoples discharge order regarding Aldridge s medication for treating vascular disease and blood monitoring; (6) overlooked the fact that there is no evidence that Dr. Jones continuing prescription of Coumadin was based on his independent medical judgment; (7) overlooked sworn, medical expert testimony to the effect that Peoples prescription of Coumadin proximately caused Aldridge s brain bleed; and (8) overlooked or misapprehended the law concerning intervening force and superseding cause. III. THIS COURT OVERLOOKED OR MISAPPREHENDED POINTS OF FACT AND LAW IN AFFIRMING THE TRIAL COURT S GRANT OF SUMMARY JUDGMENT IN FAVOR OF DR. PEOPLES. First, this Court overlooked the standard of review of a grant of summary judgment, which requires that this Court view the record evidence in the light most favorable to the non-movant, including inferences reasonably drawn from this evidence. Duckworth v. Warren, 10 So.3d 433, 436 ( 9) (Miss. 2009); Banks v. Sherwin Williams Co., 134 So.3d 706, 710 ( 10) (Miss. 2014). While this Court recites that the evidence must be viewed in the light most favorable to the non-movant in its majority -5-
opinion 1, it then completely overlooks the standard in its discussion and analysis of proximate causation. And no mention is made, anywhere in this Court s majority opinion, of the reasonable inferences that may be drawn when the evidence in the record is viewed most favorably to Glenn. Peoples became Aldridge s doctor in 2007, rather than in 2010 as stated in this Court s majority opinion 2. (C.P. 496) He treated her in February 2009 as a post-stroke and hospitalization follow up visit; in July 2009 for a complete exam; in November 2009 for a follow up and again in December 2009; and in April 2010 at St. Dominic s for DVT. (C. P. 498, 499, 500) Upon release from this April 2010 hospital stay, as noted in the majority opinion, Aldridge resided at Trinity Mission Health and Rehabilitation, where Dr. Samuel Jones ( Jones ) was the medical director. The majority opinion does not, however, mention that Peoples discharge order directed that Aldridge remain on Lovenox only until her INR was 2, but that she remain on Coumadin indefinitely. Also, while the majority opinion states that Peoples discharge order recommended daily INR testing, this order actually says nothing about continued blood monitoring after attaining a therapeutic INR level and discontinuation of the Lovenox. (C.P. 183, 502, 508) The import of Peoples history as the physician primarily responsible for Aldridge s vascular care and the details of his discharge order were not lost on Jones, whose medical notes reflect his understanding that Peoples had placed Aldridge on long-term Coumadin. (C.P. 410) Dr. Davey ( Davey ), Glenn s medical expert, testified that Jones, believing 1 Glenn v. Peoples, 2014-CA-00231-SCT, ( 10)(Miss. Dec. 10, 2015). 2 Glenn, 2014-CA-00231-SCT, ( 2). -6-
Peoples had appropriately prescribed Coumadin for Aldridge s DVT, merely continued and monitored the Coumadin that Peoples had prescribed. (C.P. 411) Viewed from the lens most favorable to Glenn, given Peoples long-time primary responsibility for Aldridge s vascular issues prior to her becoming a resident at Trinity, and given Peoples discharge note immediately preceding Aldridge s arrival at Trinity, it can be reasonably inferred 3 that Jones, who is not a specialist, simply acted in deference to Peoples discharge order regarding long-term continuation of Coumadin for treating Aldridge s vascular disease. Despite the majority s conclusion that Aldridge s stroke cannot be attributed to Peoples prescription of Coumadin because there is no evidence indicating Jones prescribed Coumadin based on anything other than his own independent judgment 4, this is actually contrary to the evidence and the appropriate standard of review. There is absolutely no evidence in the record tending to show that Jones prescribed Coumadin for Aldridge based on his independent medical judgment 5 ; therefore, this is not an inference that can be reasonably drawn from the evidence and certainly not when viewed in the light most favorable to Glenn. Because it overlooked the appropriate standard of review, the majority of this Court also overlooked the fact that Peoples exercised primary responsibility for Aldridge s vascular care, overlooked the fact that Peoples discharged Aldridge from St. Dominic with orders to remain on Coumadin indefinitely, overlooked the fact that there is 3 In accord with Davey s testimony. 4 Glenn, 2014-CA-00231-SCT, ( 22-23). 5 Instead, Dr. Davey testified that Dr. Jones understood Peoples had put Aldridge on long-term Coumadin and that Dr. Jones merely continued and monitored Dr. Peoples prescription. (C.P. 410-11) -7-
zero evidence that Jones continued Aldridge s Coumadin based on his own medical judgment, and overlooked the reasonable inference that Jones instead acted in deference to Peoples discharge order regarding continuation of Coumadin. It follows that, assuming the ingestion of Coumadin caused Aldridge s stroke 6, there exists a genuine issue of material fact as to whether Peoples prescription of Coumadin proximately caused Aldridge s injuries. The majority also overlooked the applicable standard of review in its analysis of the negligent monitoring claim. Citing only select portions of Davey s deposition testimony, the majority found that the cause of Aldridge s stroke was Jones negligent monitoring of her Coumadin intake and INR levels. Glenn, 2014-CA-00231-SCT, ( 27, 29). This finding is possible only by overlooking the appropriate standard of review, by overlooking facts in the record, and by overlooking sworn, medical expert testimony that supports Glenn s position. The majority opinion overlooks the fact that Peoples discharge order recommended daily INR testing only until Aldridge attained therapeutic INR levels and discontinued Lovenox; this order actually says nothing about continued blood monitoring after discontinuation of the Lovenox. (C.P. 183, 502, 508) Viewed in the light most favorable to Glenn, it can be reasonably inferred that Jones simply deferred to and followed Peoples discharge order concerning blood monitoring, especially given Peoples history as the physician primarily responsible for Aldridge s vascular care. The majority s finding on this point also requires overlooking the following sworn, medical expert testimony: Aldridge s stroke was causally related to her 6 Contrary to the majority opinion s position, such an assumption is not necessary because there is sworn, medical expert testimony on this point, which will be addressed herein. -8-
ingestion of Coumadin for two months (C.P. 404); Aldridge died as a result of Dr. Peoples prescribing her Coumadin (C.P. 416); to a reasonable degree of medical certainty, Aldridge s brain bleed would still have occurred even if her Coumadin had been properly monitored (C.P. 413-14); Coumadin therapy contributed to Aldridge s hemorrhagic stroke. (C.P. 520) Even Peoples couldn t deny that anticoagulation played a role in Aldridge s stroke. (C.P. 507-08) When these overlooked facts are considered in the light most favorable to Glenn, rather than overlooked, it is clear there is a genuine issue of material fact concerning whether People s prescription of Coumadin proximately caused Aldridge s death. Moreover, implicit in the majority s finding that Jones negligent monitoring of Aldridge s Coumadin intake and INR levels caused her stroke is a finding that Jones (alleged) negligence is a superseding cause which relieves Peoples from liability a conclusion which can only be reached by overlooking the law concerning intervening force and superseding cause. Jones allegedly negligent monitoring must not have been foreseeable in order for it to relieve Peoples of liability for his antecedent negligence. Canton Broiler Farms, Inc. v. Warren, 214 So.2d 671, 676-77 (Miss. 1968). If foreseeable, Jones negligence, if any, may be a concurrent proximate cause along with Peoples negligence, but it would not supersede to cut off Peoples liability. Meridian Hatcheries Inc. v. Troutman, 93 So.2d 472, 476 (Miss. 1957). Jones monitoring of Aldridge s blood levels was in accord with Peoples discharge order, therefore categorically foreseeable. -9-
This Court has adopted six factors to consider when determining whether an intervening act becomes a superseding cause. These factors, overlooked by this Court s majority, are: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor s negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person s act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Southland Management Co. v. Brown, 730 So.2d 43, 46 (Miss. 1998) (citing Restatement (Second) of Torts 440 (1965)). If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the subsequent actor s negligence is foreseeable and does not break the chain of events between the negligence of the first actor and the injury. Causey v. Sanders, 998 So.2d 393, 405 ( 38)(Miss. 2008) (quoting Southland Management, 730 So.2d at 46) (other citations therein -10-
omitted). A defendant may be held liable for failure to anticipate an easily predicted intervening cause and to guard against it. Causey, 998 So.2d at 405 ( 38) (citations therein omitted); Entrican v. Ming, 962 So.2d 28, 35-36 ( 24) (Miss. 2007) (citations therein omitted). The facts in the record before this Court and inferences reasonably drawn therefrom, viewed in the light most favorable to Glenn and applied to these factors, reveal that: a) Aldridge s stroke is the precise type of harm that would be caused by prescribing Coumadin to someone like Aldridge, who was medically unsuited for this drug. Jones allegedly negligent blood monitoring did not bring about any different kind of harm; b) even with hindsight, neither Jones monitoring pursuant to Peoples discharge order nor Aldridge s brain bleed appear extraordinary. Rather, Jones monitoring was a normal consequence of Peoples discharge order and Aldridge s brain bleed was a normal consequence in view of Peoples order to continue Coumadin therapy indefinitely; c) Jones allegedly negligent monitoring of Aldridge s blood would not have occurred independently of Peoples discharge order, but was a normal result of Peoples prescription of long-term Coumadin without a concomitant order to continue blood monitoring after discontinuation of Lovenox; d) Jones allegedly negligent monitoring was due to his own foreseeable deference to Peoples discharge order; e) Jones allegedly negligent monitoring may subject him to liability to Aldridge, but his actions cannot be found intentional or malicious; and f) Jones degree of culpability is clearly less than that of Peoples, since it was Peoples prescription of long-term Coumadin that resulted in the need for monitoring her blood -11-
beyond discontinuation of Lovenox, Aldridge s hemorrhagic stroke, and death. In sum, pursuant to the Restatement factors, Jones intervening action does not constitute a superseding cause. Southland Management, 730 So.2d at 46 (citing Restatement (Second) of Torts 440 (1965)). But the majority opinion overlooks this law entirely. Also overlooked by the majority is that the question of superseding intervening cause is so inextricably tied to causation, it is difficult to imagine a circumstance where such issue would not be one for the trier of fact. Howell v. Equipment, Inc., 170 So.3d 592, 600 ( 20) (Miss.App. 2014)(quoting O Cain v. Harvey Freeman & Sons Inc., of Miss., 603 So.2d 824, 830 (Miss. 1991)). See also Lift-All Co. v. Warner, 943 So.2d 12, 17 n.3 ( 17) (Miss. 2006) ( We have long held that a superseding cause issue is a question of fact for the jury. ) (citations therein omitted). In ordinary human experience, under the particular circumstances Peoples discharge of Aldridge with orders to continue Coumadin indefinitely, but to monitor blood levels only until Lovenox is discontinued - it would be reasonably anticipated that the next doctor to care for Aldridge would defer to those orders. Consequently, Jones alleged negligence was foreseeable and does not break the chain of events between Peoples negligent prescription of Coumadin and Aldridge s injury. Causey, 998 So.2d at 405 ( 38) (quoting Southland Management, 730 So.2d at 46) (other citations therein omitted). Peoples could and should have easily anticipated that Jones would act in accord with Peoples discharge order. Restated, -12-
Jones alleged negligence was an easily predicted intervening cause. Causey, 996 So.2d at 405 ( 38) (citation therein omitted); Entrican, 962 So.2d at 35-36 ( 24) (citations therein omitted). When the applicable law is considered rather than overlooked, and applied to the facts and reasonable inferences most favorable to Glenn, it is apparent that the issue of superseding intervening cause, including foreseeability, involves genuine issues of material fact properly determined by a jury. Howell, 170 So.3d at 600 ( 20) (quoting O Cain, 603 So.2d at 830). See also Warner, 943 So.2d at 17 n.3 ( 17) (citations therein omitted). IV. CONCLUSION This Court s majority opinion overlooks or misapprehends the standard of review which requires viewing the evidence and all inferences reasonably drawn therefrom in the light most favorable to Glenn. The majority opinion overlooks facts in the record favorable to Glenn s case and fails to draw reasonable inferences favorable to Glenn. Also overlooked is sworn, medical expert testimony to the effect that Peoples prescription of Coumadin proximately caused Aldridge s injury. Finally, the majority overlooks or misapprehends the applicable law concerning intervening force and superseding cause, which also present genuine issues of material fact. The net result of the overlooked and misapprehended facts and law specified herein is that this Court affirmed the trial court s grant of summary judgment in favor of Dr. Peoples when there exist genuine issues of material fact concerning proximate cause. For this and all of the foregoing reasons, this Court should grant Glenn s motion for rehearing, reverse the trial court s order of summary judgment, and remand the -13-
matter to the Circuit Court of the First Judicial District of Hinds County. Respectfully submitted, this the 21 st day of January, 2016. TAMARA GLENN, INDIVIDUALLY, AS ADMINISTRATRIX FOR THE ESTATE OF MATTIE HAZEL ALDRIDGE, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR MATTIE HAZEL ALDRIDGE BY: /s/ William Wes Fulgham William Wes Fulgham (MB#99159) MORGAN & MORGAN, PLLC 188 E. CAPITOL STREET, SUITE 777 JACKSON, MS 39201 (601) 949-3388 (601) 949-3399 facsimile -14-
CERTIFICATE OF SERVICE I, William W. Fulgham, do hereby certify that I have this day forwarded, via U.S. mail, postage prepaid, a true and correct copy of the foregoing to: Honorable, William A. Gowan, Jr. Judge Hinds County Circuit Court Post Office Box 22711 Jackson, Mississippi 39225-2711 Dennis J. Childress, Esq. Kimberly N. Howland, Esq. Wise Carter Child & Caraway, P.A. 600 Heritage Building 401 East Capitol Street Jackson, Mississippi 39201 THIS, the 21 st day of January, 2016. /s/ William Wes Fulgham William Wes Fulgham (MB#99159) -15-