Barrow v. May

• Decision Date: 21 February 2013
• Docket Number: No. 2010–CA–01504–COA.,2010–CA–01504–COA.
• Citation: 107 So.3d 1029
• Parties: Mary BARROW, individually and for the benefit of The Wrongful Death Heirs of Latisha Barrow and The Estate of Latisha Barrow, by and through Mary Barrow, Administratrix, Appellants v. Reul MAY, Jr., D.D.S., Appellee.
• Court: Mississippi Court of Appeals

107 So.3d 1029

Mary BARROW, individually and for the benefit of The Wrongful Death Heirs of Latisha Barrow and The Estate of Latisha Barrow, by and through Mary Barrow, Administratrix, Appellants

v.Reul MAY, Jr., D.D.S., Appellee.

No. 2010–CA–01504–COA.

Court of Appeals of Mississippi.

July 17, 2012.

Rehearing Denied Dec. 4, 2012.

Certiorari Denied Feb. 21, 2013.

William W. Fulgham, attorney for appellants.

John A. Banahan, Pascagoula, Jessica B. McNeel, attorneys for appellee.

EN BANC.

ROBERTS, J., for the Court:

¶ 1. This appeal stems from the Hinds County Circuit Court's grant of a directed verdict in a medical malpractice, wrongful death suit against Dr. Reul May Jr., an oral surgeon, brought by Mary Barrow (Barrow), the mother and legal representative for Latisha Barrow (Latisha), on behalf of herself, the heirs of Latisha, and Latisha's estate. Immediately prior to granting Dr. May's motion for a directed verdict, the circuit court granted Dr. May's Daubert motion because the expert witness's testimony on causation was speculative.¹ Barrow filed a motion for a new trial on August 20, 2010, and the circuit court denied her motion on September 22, 2010.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2003, Latisha, at the age of nineteen, was diagnosed with severe congestive heart failure (CHF), an enlarged heart, and an abnormal enlargement of the liver. She was treated with medication and by cardiologists in Greenville and at the University of Mississippi Medical Center (UMMC), but her condition continued deteriorating. By 2006, Latisha was told she had end-stage CHF. Latisha suffered from the disease of idiopathic dilated cardiomyopathy, which results in an enlarged heart that does not pump properly. Idiopathic means spontaneous or arising from an unknown cause. As a result, the pumping of the heart gets weaker, the blood circulation slows, and the heart becomes too weak to circulate blood properly. In January of 2006, Dr. Charles Moore, a cardiologist at UMMC, urged Latisha to have an internal-cardiac defibrilator (ICD) implanted due to her high risk of sudden death. The ICD would provide an electric jolt to her heart if a potential deadly arrhythmia occurred. Latisha declined having the ICD implanted, citing cosmetic concerns. Her cardiologist in Greenville testified that Latisha's mortality rate as of June 7, 2006, was fifty percent at six months and fifty percent at another six months. Needless to say, it was undisputed that in July 2006, Latisha was at a very high risk of sudden death due to arrhythmia related to her CHF.

¶ 3. On March 17, 2006, UMMC physicians evaluated Latisha about the efficacy of a heart transplant. Prior to being eligible for a heart transplant, Latisha would be required to have the ICD implanted and have her third molars, commonly known as “wisdom teeth,” removed. Latisha's home-town dentist recommended Dr. May as an oral surgeon. Dr. May practices in an office setting and does not have surgical privileges at a hospital. During the consultation visit approximately twenty-two days prior to the procedure, Dr. May took a panorex x-ray of Latisha's teeth and took her health history, including that she had CHF. Dr. May also noted that he would not go forward until he consulted with Dr. Moore, Latisha's cardiologist at UMMC. Dr. Moore sent Dr. May a written consultation letter on June 28, 2006, giving permission to proceed with the surgery. The letter noted that Dr. May should premedicate Latisha with antibiotics before the procedure, minimize the use of epinephrine in the local anesthetic, and use low-dose systemic sedation as needed. Additionally, Dr. Moore noted that the extraction of the wisdom teeth posed a “mild risk for hemodynamic instability (abnormal or unstable blood pressure),” but “given the possible need for transplantation, the potential outweighs the risk.” Dr. Moore's letter did not provide any information about whether the procedure should be done in a hospital or any post-surgical monitoring and care that should occur.

¶ 4. Latisha's dental surgery was scheduled for July 14, 2006. Earlier that day, Latisha was seen by Dr. John Payne, a cardiac electrophysiologist at UMMC, concerning the implantation of the ICD. Dr. Payne's notes indicated that Latisha had typical symptoms of volume overload because she had too little pump function. He also noted that her blood pressure was abnormally low but that Latisha had a history of clinically based low blood pressure. In addition to her appointment with Dr. Payne, Latisha visited with a heart-transplant recipient named Liz Carpenter to discuss all aspects of the transplantation process. Latisha had previously expressed concern over the heart-transplant process because she “was scared to have someone else's heart” and because the medication following the transplant would cause weight gain.

¶ 5. Dr. May testified that, either at the consultation meeting or prior to the surgery that day, he had discussed the risks and complications of the surgery with Latisha. Latisha signed a document stating she was giving her informed consent to the dental procedure. Upon arrival at Dr. May's office, Latisha appeared to be “a little weak,” but Dr. May determined he could still proceed with surgery. Latisha was given oxygen and was injected with local anesthesia. After being injected with the local anesthesia, Latisha told Dr. May's staff she was feeling a little sick; his staff washed Latisha's face with cold water, put her back on oxygen, and noted that Latisha responded well to that. The forty-five-minute procedure was completed, and Dr. May testified that he monitored her pulse and blood pressure on an LED screen on a machine. Dr. May's staff disputed that the machine was used during the procedure. Additionally, there is no written record of Latisha's blood pressure. After packing the extraction sites with gauze, Dr. May's staff watched Latisha for ten to fifteen minutes prior to releasing her. Latisha informed them that she was feeling “very weak,” and she was given ammonia. The notation in Latisha's medical record indicated that the ammonia helped and that Latisha was placed into Barrow's car at approximately 3:00 p.m. to be driven home. Barrow was provided with Dr. May's contact information and was instructed to call if there were any questions.

¶ 6. En route to their home in Sunflower County, Barrow called Dr. May's office and spoke to Angie Fortenberry, Dr. May's practice manager. Barrow told Fortenberry that Latisha was very weak and mumbling; Barrow further inquired as to when Latisha's medication was going to wear off. Fortenberry told Barrow to continue monitoring Latisha because the medication wears off differently for different people but that mumbling was not unusual since Latisha's gums had been deadened and her mouth was full of gauze. Fortenberry instructed Barrow to call back if she had any other questions or concerns. Barrow did not contact Dr. May's office again.

¶ 7. Latisha arrived home and was taken to bed to rest. At some point that night, Latisha sat up and leaned over pillows trying to catch her breath. Her father called an ambulance, and at about 9:00 p.m., Latisha was taken to the emergency room in Indianola, Mississippi. She was in full code, and the hospital was unable to revive her. Latisha was pronounced dead at approximately 10:04 p.m. The autopsy report listed Latisha's cause of death as a massive cardiomegaly. The autopsy report further showed that both Latisha's lungs were filled with serosanguinous fluid and that her liver was enlarged.

¶ 8. Barrow filed suit against UMMC, Dr. Moore, and Dr. May on December 3, 2007. Claims against UMMC and Dr. Moore are not at issue in this appeal since both UMMC and Dr. Moore entered into a settlement with Barrow a few days before trial. In addition to other witnesses, Barrow designated Dr. Orrett Ogle as an expert witness in oral surgery and Dr. Robert Stark as an expert witness in cardiology and on the issue of causation. Dr. Stark was Barrow's sole expert witness on causation because Dr. Ogle declined to offer any testimony as to causation. After Barrow designated Dr. Stark as an expert witness, Dr. May filed a motion to partially strike Dr. Stark's affidavit and report because Dr. Stark lacked knowledge and training in the fields of dentistry and oral surgery. The circuit court granted Dr. May's motion. Several days before trial, Dr. May filed a Daubert motion to exclude Dr. Stark's testimony on the issue of causation. Trial commenced on Monday, July 19, 2010. After the jury pool was qualified, the circuit court held a Daubert hearing, and the Daubert motion was taken under advisement. On July 20, 2010, the circuit judge advised both parties that he was inclined to grant the Daubert motion, but he wanted the trial to proceed since Dr. Stark was en route to Jackson, Mississippi, and he could consider Dr. Stark's live testimony. The circuit judge further advised the parties that the Daubert ruling would be withheld until after Dr. Stark provided his testimony. The following day, Dr. Stark testified that Latisha died due to an acceleration of her CHF to acute heart failure due to the stress of the oral surgery. Citing to a portion of Dr. Arthur Guyton's Textbook of Medical Physiology entitled “Acute Pulmonary Edema in Late Stage Heart Failure—A Lethal Vicious Circle,” Dr. Stark testified that the stress caused a surge of adrenergic activity sending Latisha into a “lethal vicious circle” resulting in her death. Dr. Stark testified that the lethal vicious circle is “usually set off by some temporary overload of the heart, such as might result from a bout of heavy exercise, some emotional experience, or even a severe cold.” Dr. Stark stated that the fear of the dental surgery or the surgery itself produced a surge of adrenaline in Latisha that set off the “lethal vicious circle.” The record reflects that Barrow's and Dr. May's attorneys, as well as the circuit...