Dickey v. Baptist Memorial Hospital-North Mississippi, HOSPITAL-NORTH

• Citation: 146 F.3d 262
• Decision Date: 13 July 1998
• Docket Number: HOSPITAL-NORTH,No. 96-60681,96-60681
• Parties: Reggie DICKEY, and wife; Lois Dickey, Plaintiffs-Appellants, v. BAPTIST MEMORIALMS; United States of America, Veterans Administration, Defendants, Baptist Memorial Hospital-North MS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 262

146 F.3d 262

Reggie DICKEY, and wife; Lois Dickey, Plaintiffs-Appellants, v. BAPTIST MEMORIAL HOSPITAL-NORTH MS; United States of America, Veterans Administration, Defendants Baptist Memorial Hospital-North MS, Defendant-Appellee.

No. 96-60681.

United States Court of Appeals Fifth Circuit.

July 13, 1998.

John H. Cocke, Charles M. Merkel, Merkel & Cocke, Clarksdale, MS, Thomas R. Trout, New Albany, MS, for Plaintiffs-Appellants.

John Hand Dunbar, Dunbar Williams, PLLC, Robert Bradley Best, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BARKSDALE, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

The appellant, Lois Dickey, appeals the district court's order granting Baptist Memorial Hospital-North Mississippi summary judgment on her state-law negligence claim. For the reasons set forth below, we reverse and remand.

I.

On July 28, 1992, Reggie Dickey went to the emergency room at Baptist Memorial Hospital-North Mississippi ("BMH") in Oxford, Mississippi, complaining of chest pains. Dr. Lamb, an ER physician employed by BMH, ordered that chest x-rays be taken for an apparent heart problem. Dr. Jordan, a radiologist employed by BMH, interpreted the x-rays as revealing a "questionable mass" in Mr. Dickey's right lung, and a BMH radiology report recommended that a chest CT scan be performed.

Before any additional tests could be performed, however, Mr. Dickey and his family requested that he be transferred to the Veterans' Administration Hospital (the "VA Hospital") in Memphis, Tennessee, for follow-up care. Pursuant to BMH policy, Dr. Lamb then called the VA Hospital and spoke with Dr. Washington, the "officer of the day" at the VA Hospital, to explain Mr. Dickey's condition and to obtain consent to have him transferred.

After obtaining approval for the transfer, BMH transferred Mr. Dickey to the VA Hospital. The ER record from BMH, which was prepared by Dr. Lamb and which accompanied Mr. Dickey to the VA Hospital, noted, inter alia, the following: "chest x-ray, pathology right chest, ? [questionable] mass on right-radiological report," under the "physician history and physical" category. The radiological report to which the ER record refers was available at the time of Mr. Dickey's transfer but was not forwarded to the VA Hospital. The parties dispute whether the x-rays taken at BMH revealing the questionable mass on the right lung were forwarded to the VA Hospital. After the transfer, the VA Hospital undertook all medical care for Mr. Dickey, and BMH had no further involvement.

When Mr. Dickey arrived at the VA Hospital, Dr. Dempsey, the VA Hospital's radiologist, performed another set of chest x-rays to locate the source of Mr. Dickey's chest pain. These x-rays, which used a different film technique than that used by BMH, apparently did not reveal the questionable mass in Mr. Dickey's right lung. Fifteen months later, Mr. Dickey was diagnosed with lung cancer. On February 6, 1996, Mr. Dickey died as a result of the lung cancer.

II.

On November 6, 1995, Mr. and Mrs. Dickey filed suit against BMH and the United States (the VA Hospital) for negligence arising out of Mr. Dickey's medical care. On March 7, 1996, after her husband's death, Mrs. Dickey filed an amended complaint as the administratrix of the estate and on behalf of herself and all other wrongful death beneficiaries. On April 29, 1996, Mrs. Dickey filed a second amended complaint, in which she claimed that BMH employees negligently failed to send the x-ray report and/or the x-rays to the VA Hospital when Mr. Dickey was transferred. Mrs. Dickey also claimed that BMH's failure to send the x-rays and radiology report constituted a violation of Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd(c)(2)(C), which requires that all x-rays and medical records be sent with a patient when he is transferred. Finally, Mrs. Dickey claimed that the VA Hospital employees were negligent in losing the x-rays in the event that they were sent to them, in failing to diagnose Mr. Dickey's tumor on the x-rays that were taken at the VA Hospital, and in not reviewing the medical records that were actually received from BMH.

On June 27, 1996, the district court granted BMH's motion for partial summary judgment and dismissed the claim brought pursuant to EMTALA as time barred. On September 10, 1996, the district court granted BMH's motion for summary judgment with respect to Mrs. Dickey's state-law negligence claim. On October 8, 1996, Mrs. Dickey filed an interlocutory appeal with respect to the dismissal of BMH from the action. On November 4, 1996, the district court entered a judgment dismissing the action against the VA Hospital by reason of settlement. On January 27, 1997, this court dismissed Mrs. Dickey's appeal for want of prosecution. By order dated March 19, 1997, however, this court reinstated Mrs. Dickey's appeal against BMH.

On appeal, Mrs. Dickey argues only that the district court erred in granting BMH summary judgment on Mrs. Dickey's state-law negligence claim. Mrs. Dickey has not appealed the district court's order dismissing her EMTALA claim against BMH.

III.

This court reviews the grant of summary judgment de novo, applying the same standards as the district court. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995). Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. See id. at 323, 106 S.Ct. at 2553. 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 non-movant. See Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997).

IV.

To establish any claim for negligence under Mississippi law, the plaintiff must prove the following elements: 1) the existence of a duty on the part of the defendant to conform to a specific standard of conduct; 2) a breach of that duty; 3) that the breach of duty was the proximate cause of the plaintiff's injury; and 4) that damages to the plaintiff have resulted. Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993); Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992).

A.

To date, no Mississippi court has specifically addressed the duty of care owed by a transferring hospital to a patient with respect to the transfer of the patient's records. In general, however, physicians in Mississippi have a duty to exercise " 'reasonable and ordinary care' in their treatment of patients." Drummond, 627 So.2d at 268. What constitutes "reasonable and ordinary care" in any particular case is often a fact specific question and must ordinarily be established through expert medical testimony. See id.; Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996) (holding that medical negligence must be established by "medical testimony that the defendant[s] failed to use ordinary skill and care"). Although this usually means that the plaintiff must rely on her own expert testimony, Mississippi law also recognizes that a medical-malpractice plaintiff "may utilize the defendant himself as a source of proof of the standard of care...." Meena v. Wilburn, 603 So.2d 866, 870 n. 9 (Miss.1992) (quotation omitted). A plaintiff may use the defendant's own testimony when "the physician [as defendant testifies] to the standard in such a clear way that the plaintiff has little trouble demonstrating a deviation from that standard." Id. (citation omitted).

In this case, the district court concluded, as does the dissent, that a transferring hospital only has a duty "to communicate all of [the patient's] pertinent medical conditions to the transferee hospital." Slip op. at 268 (emphasis in the original). This conclusion was based, in part, on the deposition testimony of Dr. Lamb, the ER physician who treated Mr. Dickey at BMH, who testified that a physician has a duty to "relay all significant information to the receiving doctor." According to the district court, this duty was satisfied when BMH transferred the ER report, which "clearly put the VA hospital on notice of the questionable mass in Mr. Dickey's right lung." Id. In reaching this conclusion, however, the district court failed to take into account the specific steps identified by Dr. Lamb and other BMH hospital personnel in their depositions as necessary to satisfy this duty of care.

In addition to testifying that a physician has a duty to "relay all significant information to the receiving doctor," Dr. Lamb testified that it was BMH's "standard of practice" to forward either the x-rays or copies of the x-rays to the hospital to which a patient is transferred. He further testified that, although it was not customary to forward the radiology report because of the time lag in its preparation, such a report should be forwarded if available.

Moreover, Nurse Willard, the BMH nurse who accompanied Mr. Dickey during his transfer from BMH to the VA Hospital, testified that her "standard of care" as a nurse required her to take the x-rays and the x-ray report, if it was ready, with her to the VA Hospital. Finally, Loralei McGee, BMH's Director of Health Information, agreed in her deposition that if the x-rays were not forwarded, "someone down here at Baptist would have made a mistake."

Given this uncontradicted testimony, we conclude that, at a minimum, a genuine issue of material fact exists...