Biloxi Regional Medical Center v. David, 07-CA-58532

• Decision Date: 13 December 1989
• Docket Number: No. 07-CA-58532,07-CA-58532
• Citation: 555 So.2d 53
• Parties: BILOXI REGIONAL MEDICAL CENTER v. Jimmie Lois DAVID.
• Court: Mississippi Supreme Court

Page 53

555 So.2d 53

BILOXI REGIONAL MEDICAL CENTER v. Jimmie Lois DAVID.

No. 07-CA-58532.

Supreme Court of Mississippi.

Dec. 13, 1989.

Fred Mannino, Page Mannino & Peresich, Biloxi, for appellant.

Robert H. Tyler, Denton & Tyler, Biloxi, for appellee.

Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

On April 2, 1982, Mrs. David, a seventy year old retiree, was visiting her husband who was a patient at the Biloxi Regional Medical Center (hereafter referred to as the center). Mr. David had been in the center for approximately five to six weeks. During that time Mrs. David had visited her husband three times a day. Normally when she came to the center she parked in the north parking lot which was a fenced in lot used by employees. To enter the building from this lot Mrs. David had to walk through an opening in the fence, across a footpath on a grass covered area, then enter the building via a service entrance near the loading area.

On April 2, Mrs. David was leaving the center after visiting with her husband during the lunch hour. She had parked in her usual place in the north parking lot. As she entered the gate leading to the parking lot she tripped or "stubbed" her toe on something in the ground. Although she stumbled she did not fall. She did not notice what she had tripped upon until the next day when she noticed a piece of concrete partially buried which was exposed several inches above the pavement. The piece of concrete was part of the paved parking lot.

Mrs. David did not begin to experience any pain until later that day when her leg began to swell. She suffers from chronic diabetes mellitus and thrombophlebitis as well as a number of other ailments. As a result of these ailments she has poor circulation in her legs and it takes awhile before she begins to feel pain. She did not see a doctor until Dr. Wansley, the doctor treating her husband, noticed the swelling and advised her to have a x-ray taken. The X-ray showed no "new" fracture but found evidence of a healing fracture. An ace bandage was the prescribed treatment and Mrs. David was not hospitalized.

The pain and swelling continued until Mrs. David was admitted to the hospital. The diagnosis for the swelling was that it was caused by the thrombophlebitis and Mrs. David was discharged. On May 14, 1982, Mrs. David was admitted to the Oschner Hospital in New Orleans for treatment of inflammation and swelling in her legs. X-rays taken on May 18th discovered that Mrs. David had a "blow out" comminuted of the tarsal navicular bone and a compression fracture of the midfoot. When she was discharged on June 16, 1982, she was wearing a cast. From this injury a suit was filed against the Biloxi Regional Medical Center.

The main dispute at the trial was with the testimony of Dr. Wansley. On several occasions during his testimony Dr. Wansley was asked his opinion concerning the causal connection between the treatment rendered at Oschner and Mrs. David's accident. The center objected to these questions on the grounds that Dr. Wansley did not treat Mrs. David at Oschner and that he had not reviewed her medical records. These objections were overruled. Mrs. David's bills from Oschner concerning her treatment were admitted over the center's objection that the bills themselves were insufficient to prove a causal connection between incident and injury.

Following closing arguments the jury retired for its deliberations and returned a verdict in favor of Mrs. David in the amount of $70,000.00. A motion for a new trial was denied and the verdict entered as a judgment.

I. DID THE COURT ERR IN ALLOWING DR. WANSLEY TO RENDER AN OPINION AS AN EXPERT TO ESTABLISH A CAUSAL CONNECTION BETWEEN MRS. DAVID'S ACCIDENT AT BILOXI REGIONAL MEDICAL CENTER AND HER TREATMENT AT OSCHNER HOSPITAL?

In its first assignment of error the center claims that it was error to allow Dr. Wansley to give testimony in the form of an opinion as to the causal connection between Mrs. David's injury and her treatment at the Oschner Hospital as well as her bills from Oschner. Dr. Wansley answered two questions relating to the causal connection between the injury and the treatment at Oschner Hospital: (1) Was Mrs. David's stay at Oschner Hospital the result of her injury sustained at the center; and (2) were the bills incurred by Mrs. David at Oschner Hospital the result of her injury sustained at the center?

With regard to the first question, Dr. Wansley was asked why an X-ray taken at Oschner on May 18, showed a fracture that did not show up on the X-ray taken at the center on May 9, 1982. Although Wansley had not seen the Oschner x-ray nor read the radiologists report he was allowed to render an opinion over objection. His opinion was that possible inflammation obscured the fracture or that since the fracture was a compound fracture it might not have been seen until calcification outlined the fracture. He stated that the Oschner x-ray was probably showing the injury Mrs. David received at the center. During direct examination Dr. Wansley was asked whether the treatment at Oschner was a result of Mrs. David's injury at the center. Again over objection he was allowed to testify that Mrs. David's treatment at Oschner was related to the accident which Mrs. David testified occurred at the center. The center relies on Mississippi Rules of Evidence 702, 703 and 705, for its objection, which state:

RULE 702. TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION

The expert may testify in terms of opinion or inferences and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

The center is not questioning the validity of Rule 703 or 705 but the validity of the underlying facts used by Dr. Wansley in forming his opinion.

In examining the underlying facts Dr. Wansley used it should be remembered that Dr. Wansley treated Mrs. David after her injury at the Biloxi Regional Medical Center and also referred Mrs. David to Oschner Hospital when she failed to respond to treatment. He heard her state that she "stubbed" her toe in the center's parking lot and he hospitalized her because of pain and swelling of her foot. Since Dr. Wansley was not at the scene of the accident, he must rely on Mrs. David's account for his history. Knowing how Mrs. David injured her foot and that she went to Oschner's for treatment of that injury, Dr. Wansley had sufficient underlying facts for the purpose of Rules 703 and 705, Mississippi Rules of Evidence.

The second question arises with regard to Dr. Wansley answering the question of whether the bills incurred by Mrs. David at Oschner Hospital were the result of her injury at the clinic. It should be noted that Dr. Wansley's testimony was not necessary to prove that the Oschner Hospital bills were incurred because of Mrs. David's injury to her foot.

Section 41-9-119, Miss.Code Ann. (1972) as Amended, states:

Proof that medical, hospital, or doctor bills were paid or were incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.

Mrs. David's testimony that she was injured in the parking lot and the introduction of the bills which have been paid are prima facie evidence that the bills themselves were necessary and reasonable. Clements v. Young, 481 So.2d 263, 269 (Miss.1985), and Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). Thus, the casual connection between Mrs. David's injury and her treatment at Oschner's has been met regardless of Dr. Wansley's testimony.

The center claims that Mrs. David's testimony and that of the doctors are insufficient to show the causal connection between the injury and its negligence. This was not their objection at the trial. The only basis for objection to the entry of the bills offered to the trial judge was that they were not necessary and reasonable treatment for the injury she sustained. There was no reversible error in allowing Dr. Wansley to testify.

II. DID THE COURT ERR IN GRANTING INSTRUCTION P-8?

In its second assignment of error the center argues that it was error for the...