Hubbard v. Wansley

• Decision Date: 26 April 2007
• Docket Number: No. 2005-CA-01055-SCT.,2005-CA-01055-SCT.
• Citation: 954 So.2d 951
• Parties: Ruby Angela HUBBARD and Pinkie J. Hubbard, Individually and On Behalf of and In her Capacity as Guardian of her Daughter Ruby Angela Hubbard. v. Billy M. WANSLEY, M.D.
• Court: Mississippi Supreme Court

954 So.2d 951

Ruby Angela HUBBARD and Pinkie J. Hubbard, Individually and On Behalf of and In her Capacity as Guardian of her Daughter Ruby Angela Hubbard. v. Billy M. WANSLEY, M.D.

No. 2005-CA-01055-SCT.

Supreme Court of Mississippi.

April 26, 2007.

COPYRIGHT MATERIAL OMITTED

R. Allen Smith, Jr., Lance Paul Bradley, for appellants.

Mary Margaret Kuhlmann, George F. Bloss, III, Gulfport, for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. This medical malpractice case against Dr. Billy M. Wansley is before the Court on appeal from the grant of summary judgment in his favor in the Harrison County Circuit Court, Second Judicial District. Hubbard¹ argues that: (1) her expert, Dr. Lynn Stringer, is qualified to testify as to the breaches of the standard of care committed by Dr. Wansley; (2) Dr. Wansley should be held to the standard of a neurologist or neurosurgeon; (3) Dr. Wansley's conduct (that Hubbard alleges rises to the level of malpractice) falls under the "layman exception"; (4) the trial court erred when it entered final judgment of dismissal with prejudice in this case because Hubbard had timely designated an additional expert to testify in this matter pursuant to a prior court order; and (5) Hubbard's experts, Dr. Stringer and Dr. Alan Levinstone, created a genuine issue of material fact as to causation in this case. Finding no error, we affirm.

FACTS

¶ 2. On May 5, 1997, Ruby Angela Hubbard was admitted to Biloxi Regional Medical Center (BRMC), where she was treated for a light stroke and systemic lupus. On May 11, she was discharged by Dr. Billy Wansley. However, before leaving the hospital Hubbard complained of a severe headache and fell unconscious, striking her head during the fall. Dr. Wansley, who was not present at the hospital when Hubbard fell, was telephoned by a nurse. He instructed the nurse to monitor Hubbard's blood pressure and level of consciousness for two hours, and if there was no change, to discharge Hubbard and send her home. She was discharged and sent home at approximately 2:30 p.m. on May 11, 1997.

¶ 3. At 10:15 that same night, Hubbard's mother took her to the emergency room at BRMC where she was examined by an emergency room doctor, Dr. James Mitchell.² After a CT scan of Hubbard's head was taken, Dr. Mitchell diagnosed her with a subarachnoid hemorrhage.³ Dr. Mitchell consulted with Dr. Wansley by telephone to inform him of the findings and discuss treatment options, and Hubbard was admitted to the intensive care unit where her condition was monitored and she was treated. For the first time since treating her lupus, Dr. Wansley saw Hubbard at approximately 2:30 p.m. on May 12, 1997. He treated Hubbard in part by administering hydrochlorothiazide and a low volume salt water solution.

¶ 4. On May 13, 1997, Dr. Richard Gorman, Hubbard's consulting neurologist, ordered that she be sent to the University of South Alabama Medical Center in Mobile, Alabama.⁴ On May 20, 1997, Hubbard underwent surgery to repair the ruptured aneurysm which had resulted in her hemorrhage.

PROCEDURAL HISTORY

¶ 5. On April 27, 1999, Hubbard filed this action in the Harrison County Circuit Court.⁵ Three years later, the case was removed to the United States District Court for the Southern District of Mississippi. After the dismissal of BRMC as a defendant, the case was remanded to the Harrison County Circuit Court on October 29, 2003.

¶ 6. Prior to the remand, Dr. Wansley filed three motions for summary judgment. The first alleged that Dr. Lynn Stringer, Hubbard's expert, was not qualified to testify as to the standard of care in this case. The second alleged that Dr. Wansley's reliance on a medical chart regarding notification of a specialist was reasonable. The third alleged that Hubbard had failed to present evidence sufficient to establish a genuine issue of material fact as to causation in this case. These motions were carried forward from the federal district court to the circuit court on remand.

¶ 7. On July 20, 2004, the trial court orally granted Dr. Wansley's first and third motions for summary judgment.⁶ Subsequently, Hubbard successfully moved for extra time in which to designate an expert,⁷ and on September 3, 2004, designated Dr. Alan Levinstone as her expert.

¶ 8. The trial court issued a written Memorandum Opinion and Order on the summary judgment motions which it had granted orally in July, and entered final judgment with prejudice as to Dr. Wansley's first and third motions on January 27, 2005. After denial of Hubbard's motion to reconsider, she timely filed her notice of appeal.

STANDARD OF REVIEW

¶ 9. It is well-settled that this Court applies a de novo standard of review to the grant or denial of summary judgment by a trial court. Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004). Summary judgment is appropriate when the evidence is considered in the light most favorable to the nonmoving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997).

ANALYSIS

I. WAS DR. LYNN STRINGER QUALIFIED TO TESTIFY AS TO THE APPROPRIATE STANDARD OF CARE OWED BY DR. WANSLEY?⁸

¶ 10. Dr. Wansley's motion for summary judgment challenged Hubbard's use of Dr. Lynn Stringer as an expert witness on the basis that Dr. Stringer, a board certified neurosurgeon, was not qualified to offer an opinion as to the standard of care of a physician practicing internal medicine. The trial court agreed with Dr. Wansley's contention and employed it as one of the grounds for granting summary judgment.

¶ 11. Absent an abuse of discretion, a judge's determination as to the qualifications of an expert witness will remain undisturbed on appeal. Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1357 (Miss.1990) (citing Ill. Cent. R.R. Co. v. Benoit Gin Co., 248 So.2d 426 (Miss. 1971)). As in the present case, the disqualification of the expert in Palmer came at the summary judgment hearing. There, this Court determined this is inconsequential, stating:

The law empowers a trial judge to determine whether a proffered expert is qualified to testify and does not restrict exercise of this power to the trial stage only. That is, a judge has as much power to resolve doubts on qualifications of proffered experts during the summary judgment stage as he has during the trial stage. And of course, the standard which this Court must apply when reviewing a trial judge's decision to disqualify remains unchanged — notwithstanding that the decision was made during the summary judgment stage. That is, this Court will determine whether the trial judge abused his discretion.

Id.

¶ 12. A prima facie case for medical malpractice must be made by proving the following elements: (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant. Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss. 1987)). "When proving these elements in a medical malpractice suit, expert testimony must be used. Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries." Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986)).

¶ 13. Rule 702 of the Mississippi Rules of Evidence governs the admission of expert testimony. A witness may testify as an expert to "assist the trier of fact to understand the evidence or to determine a fact issue" if the witness is "qualified as an expert by knowledge, skill, experience, training, or education" and "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." M.R.E. 702. It is generally not required that an expert testifying in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying. "`It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility.'" West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995). Satisfactory familiarity with the specialty of the defendant doctor is, however, required in order for an expert to testify as to the standard of care owed to the plaintiff patient. Id. at 718-19.

¶ 14. Dr. Stringer stated in an affidavit that Dr. Wansley should have: (1) gone to the hospital to see Hubbard on the evening of May 11, 1997, when Hubbard went to the emergency room; (2) consulted with a neurologist about Hubbard's condition; (3) administered the medications Decadron and Nimodipine to Hubbard; and (4) not administered hydrochlorothiazide and a low fluid volume of saltwater. Dr. Stringer further stated that Dr. Wansley violated the standard of care owed to Hubbard and the failure to adhere to that standard contributed to Hubbard's diminished neurological condition.

¶ 15. Hubbard counters that Dr. Stringer is well-qualified to testify as an expert in this case and it was error to grant summary judgment on the basis that Hubbard did not have an expert qualified to testify as to the standard of care. Specifically, Hubbard contends that Dr. Stringer's training and experience, combined with his familiarity with three treatises on the treatment of subarachnoid hemorrhages and with treatises in the field of internal medicine, give Dr. Stringer the knowledge necessary to form an opinion as to the standard of care that Dr. Wansley owed Hubbard.

¶...