Battle v. Memorial Hospital Gulfport

• Decision Date: 20 September 2000
• Docket Number: No. 99-60343,99-60343
• Citation: 228 F.3d 544
• Parties: (5th Cir. 2000) DANIEL L. BATTLE, JR., a minor, by and through his mother and guardian ZETA BATTLE; ZETA BATTLE, individually and DANIEL BATTLE, SR., Plaintiffs-Appellants, v. MEMORIAL HOSPITAL AT GULFPORT; DAVID L. REEVES, M.D.; DENNIS W. AUST, M.D., and EMERGENCY CARE SPECIALISTS OF MISSISSIPPI, LTD., Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 544

228 F.3d 544 (5th Cir. 2000)

DANIEL L. BATTLE, JR., a minor, by and through his mother and guardian ZETA BATTLE; ZETA BATTLE, individually and DANIEL BATTLE, SR., Plaintiffs-Appellants, v. MEMORIAL HOSPITAL AT GULFPORT; DAVID L. REEVES, M.D.; DENNIS W. AUST, M.D., and EMERGENCY CARE SPECIALISTS OF MISSISSIPPI, LTD., Defendants-Appellees.

No. 99-60343

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 20, 2000

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[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Mississippi

Before WIENER, BENAVIDES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Daniel Battle, Jr. ("Daniel"), a minor, his mother Zeta Battle ("Mrs. Battle"), and his father Daniel Battle, Sr. ("Mr. Battle") brought suit alleging that negligent medical treatment by David L. Reeves, M.D., Dennis W. Aust, M.D. and Emergency Care Specialists of Mississippi, Ltd. resulted in injuries to Daniel Battle, Jr. Plaintiffs further alleged that Memorial Hospital at Gulfport ("Memorial Hospital") was liable to Daniel under Mississippi tort law and that it violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (1994) ("EMTALA"). Defendants prevailed on all claims and Plaintiffs appeal. We affirm in part, vacate in part and remand for further proceedings.

I. FACTS

In December 1994, fifteen-month-old Daniel suffered from viral encephalitis, an inflammation of the brain, which resulted in extensive neurological injury. Daniel, now six years old, was characterized at trial as "about as damaged as a human being can be and still be alive."

Daniel, born on September 8, 1993, was healthy and normal until December 22, 1994, when he developed a fever and sores on his tongue. Mrs. Battle took Daniel to his pediatrician, Dr. Reeves, who diagnosed an ear infection and tonsillitis and prescribed a course of antibiotics. Daniel's condition did not improve. Shortly before midnight on December 24, 1994, Mrs. Battle called and left a message with Dr. Reeves's answering service because Daniel's jaws were snapping shut. Mrs. Battle then called 911 because Daniel's face began to twitch and his eyes rolled back. When Dr. Reeves called back, the paramedics had arrived and they informed him that Daniel had seizures, fever and that one hand and his face were twitching.

Daniel was taken to Memorial Hospital and seen in the emergency room by Dr. Graves and Dr. Sheffield. Dr. Sheffield performed a lumbar puncture, which Dr. Graves interpreted as normal. After x-rays and some blood work, Daniel was diagnosed with febrile seizures, pneumonia and an ear infection. He was discharged and went home with a new set of antibiotics.

In the afternoon of December 25, Mrs. Battle called Dr. Reeves again and told him that Daniel was continuing to have seizures. Dr. Reeves instructed her to take Daniel back to the Memorial Hospital emergency room where he was seen by Dr. Aust. On this second trip, Mrs. Battle put "self-pay" on the emergency room paper work. Dr. Aust diagnosed Daniel with "seizure disorder" and pneumonia and administered Dilantin for the seizures. As Mrs. Battle took Daniel home with a prescription for additional Dilantin, Dr. Aust instructed her to "not bring that child right back in here because Dilantin takes time to work."

When the Dilantin wore off, Daniel's seizures returned and continued on and off throughout the day on December 26. That afternoon, Mrs. Battle called Dr. Reeves again. Dr. Reeves instructed her to take Daniel to Memorial Hospital and have him admitted, which she did. Drs. Aust and Reeves ordered a CT scan, without contrast, which was read as negative. They also ordered an EEG, which was not read until seven days later. When read, it was grossly abnormal.

At 9:00 p.m. on December 26, Dr. Reeves saw Daniel for the first time since December 22. Daniel's condition continued to deteriorate. At 5:00 p.m. on December 27, Dr. Reeves's partner, Dr. Akin, saw Daniel. She diagnosed viral encephalitis, possibly the rare and dangerous herpes simplex encephalitis ("HSE"), and initiated treatment with Acyclovir, a drug that can halt the progression of HSE in some patients. She then arranged for a helicopter to transport Daniel to Tulane Medical Center where he could receive care from an infectious disease specialist. When Daniel arrived at Tulane around midnight of December 27, health care personnel immediately did a lumbar puncture which was grossly abnormal. They also performed a CT scan, with and without contrast, and an MRI. All the tests revealed abnormal results consistent with HSE.

A positive diagnosis of HSE requires a brain biopsy or a DNA test called PCR ("polymerase chain reaction"). Daniel's spinal fluid, obtained from the lumbar puncture on December 27, 1994, was tested at Tulane as well as being sent to the Whitley laboratory at the University of Alabama, which specializes in HSE research. Tulane's test was negative for HSE. On January 19, 1995, Dr. Fred Lakeman in the Whitley lab obtained a positive result on the PCR test, indicating that Daniel had HSE.

Despite the fact that the suspicion of HSE was unconfirmed until January 19, Daniel remained on Acyclovir throughout his treatment at Tulane. Daniel was discharged from Tulane on February 1, 1995, in a near vegetative state. He will require 24-hour-a-day care for the rest of his life.

II. PROCEDURAL HISTORY

Plaintiffs filed medical malpractice claims against Dr. Reeves, Dr. Aust, Dr. Aust's practice group, Emergency Care Specialists of Mississippi, Ltd. and Memorial Hospital on October 1, 1996, in Mississippi Circuit Court. After Plaintiffs amended their complaint to allege an EMTALA claim against Memorial Hospital, Defendants removed the case to federal court on May 1, 1997. After extensive discovery, the case was set for trial on September 14, 1998.

Prior to trial, the district court granted summary judgment for Memorial Hospital on Plaintiffs' state law claims, finding that the claims had not been filed within the controlling Mississippi one-year statute of limitations.

Approximately three weeks prior to trial, Plaintiffs informed Defendants that expert witness Lowell Young, M.D., would not be available for trial and noticed the videotape deposition of Dr. Young for September 3, 1998, in San Francisco, California. On September 2, 1998, Plaintiffs moved for a continuance based on the unavailability for trial of another expert, Dr. Richard Whitley. On September 3, 1998, Plaintiffs noticed the deposition of Whitley for September 9, 1998. The district court granted Plaintiffs' motion for continuance and reset the trial for January 25, 1999.

Due to a death in District Judge Bramlette's family several days before trial, the parties consented to trial before Chief Magistrate Judge John Roper. Before trial, Magistrate Judge Roper denied Plaintiffs' motion in limine to prohibit evidence of Mr. Battle's incarceration during Daniel's illness and prohibited Plaintiffs from introducing into evidence the deposition of Plaintiffs' expert Dr. Fred Lakeman. Dr. Young's video deposition was admitted, but Plaintiffs were not allowed to call him live. Plaintiffs challenge each of these rulings on appeal.

Trial commenced on January 25, 1999. At the close of Plaintiffs' case, the magistrate judge granted judgment for Memorial Hospital on the EMTALA claims and dismissed it from the case, finding that there was no evidence of disparate treatment or failure to stabilize Daniel's condition.¹ A unanimous jury verdict in favor of Defendants Reeves, Aust and Emergency Care Specialists of Mississippi was entered on February 8, 1999.

III. ANALYSIS

A. EVIDENTIARY RULINGS

Plaintiffs assign as error three evidentiary rulings and argue that the cumulative impact of these errors resulted in prejudice and requires reversal of the judgment for Defendants.

1. Mr. Battle's Incarceration

Mr. Battle was incarcerated from June 1993 to June 1996. Plaintiffs filed a motion in limine seeking to exclude evidence of the past criminal acts of Mr. Battle under Federal Rules of Evidence 401, 402, 403 and 609 as irrelevant, unduly prejudicial and outweighing any probative value. Defendants responded that Mr. Battle, who was seeking his own individual damages in the case, might be called as a witness on the issue of damages and should be subject to impeachment under Federal Rule of Evidence 609, which allows evidence that a witness has been convicted of a crime punishable by imprisonment for more than one year for the purpose of attacking that witness's credibility. The magistrate judge ruled that the danger of undue prejudice did not outweigh the probative value of evidence of the fact and duration of Mr. Battle's incarceration. However, Defendants were ordered not to name or refer to the specific felonies for which Mr. Battle was incarcerated. After the jury was selected, Plaintiffs indicated to the court that they were considering dropping Mr. Battle's individual claims and again requested the court to exclude all evidence of his felony conviction. The magistrate judge informed Plaintiffs that if Mr. Battle's individual claims were dismissed, all evidence of his connection to this case would be excluded, including any reference to the felony conviction. In the end, Plaintiffs decided not to drop Mr. Battle's individual claims.

Ultimately, Mr. Battle chose not to testify and nothing was mentioned concerning his criminal conviction or prison term. The only evidence admitted on this issue is a hand written note on a social services report on page 98 of approximately 1000 pages of Tulane medical records stating that Daniel's father was not a part of the family unit because he was in jail and had been denied leave to visit. No one referred to this note in front of the jury.

On appeal, Plaintiffs contend that the magistrate judge erred in refusing to exclude...