Bridges v. Kitchings

• Decision Date: 11 June 2002
• Docket Number: No. 2001-CA-00718-COA.,2001-CA-00718-COA.
• Citation: 820 So.2d 42
• Parties: Joan W. BRIDGES, Appellant, v. John T. KITCHINGS, M.D. and William S. Cook, M.D., Appellees.
• Court: Mississippi Court of Appeals

820 So.2d 42

Joan W. BRIDGES, Appellant, v. John T. KITCHINGS, M.D. and William S. Cook, M.D., Appellees.

No. 2001-CA-00718-COA.

Court of Appeals of Mississippi.

June 11, 2002.

John Robbins, II, Brandon, attorneys for appellant.

James A. Becker, Jr., Mildred M. Morris, Jackson, attorneys for appellees.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

THOMAS, J., for the court.

¶ 1. On March 26, 1999, Joan W. Bridges filed a complaint against Dr. William S. Cook and Dr. John T. Kitchings, claiming that they did not have her informed consent to remove her left ovary. On March 1, 2001, the jury returned a verdict in favor of Dr. Cook and Dr. Kitchings. Aggrieved, Bridges asserts the following issues:

I. THE LOWER COURT ERRED BY ALLOWING THE DEFENDANTS TO CROSS EXAMINE BRIDGES USING MEDICAL RECORDS FROM HER PRIOR PHYSICIANS.

II. THE LOWER COURT ERRED IN FAILING TO APPLY THE REASONABLY PRUDENT PATIENT STANDARD, THE OBJECTIVE STANDARD.

III. THE LOWER COURT ERRED WHEN IT WOULD NOT LET BRIDGES' CALCULATED MEDICAL DAMAGES INTO EVIDENCE.

IV. THE LOWER COURT ERRED WHEN IT ALLOWED THE DEFENSE TO DISCUSS BRIDGES' HEALTH INSURANCE.

V. THE LOWER COURT ERRED WHEN IT LIMITED THE PHOTOGRAPHS BRIDGES WISHED TO ENTER INTO EVIDENCE.

VI. THE LOWER COURT ERRED WHEN IT ALLOWED THE DEFENSE TO INTRODUCE EVIDENCE REGARDING OVARIAN CANCER.

VII. THE LOWER COURT ERRED WHEN IT WOULD NOT PERMIT BRIDGES TO DISCUSS THE ISSUE OF MONEY DAMAGES IN THE SECOND HALF OF HER CLOSING ARGUMENT.

VIII. THE VERDICT OF THE LOWER COURT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

IX. BRIDGES DID NOT RECEIVE A FAIR TRIAL.

Finding no error, we affirm.

FACTS

¶ 2. Bridges had been a patient at Jackson Healthcare for Women, P.A. since the 1970s. Dr. Bass, a doctor working at the clinic, performed a partial hysterectomy in 1978, wherein her right ovary was removed, but her left ovary was left intact. ¶ 3. Bridges began seeing Dr. Kitchings for annual checkups in 1994. In 1995, she complained of urinary incontinence. She was treated with perineal exercises and was instructed to limit stimulants to the bladder in order to improve the incontinence. The results were not favorable. When Bridges returned for her annual checkup on December 10, 1996, a pelvic examination showed a loss of the urethrovesical angle. Dr. Kitchings called in his partner, Dr. Cook, during the examination in order to get a second opinion. Dr. Cook agreed that there was a loss of the urethrovesical angle.

¶ 4. Dr. Kitchings and Bridges discussed her incontinence and continuing pelvic pain and a urodynamic work up and cystometric studies were scheduled. These studies confirmed the diagnosis. After receiving the results of these studies, Bridges was scheduled for a consultation with Dr. Kitchings on January 27, 1997.

¶ 5. During this consultation, Bridges decided to undergo a bladder suspension surgery. Kitchings testified that during this consultation, he discussed the surgery and the risks of the surgery with Bridges. Also during this consultation, Bridges indicated that her grandmother had suffered from ovarian cancer. Bridges inquired if she could have her left ovary removed during the bladder suspension surgery in order to prevent the possibility of ovarian cancer. Dr. Kitchings testified that he discussed the additional risks of the ovarian removal procedure with Bridges at that time. Bridges decided to proceed with both the bladder suspension surgery as well as the ovary removal at the conclusion of this consultation.

¶ 6. On March 28, 1997, Bridges was admitted to the Woman's Pavilion at River Oaks Hospital. Dr. Kitchings and Dr. Cook performed the bladder suspension surgery and removed her left ovary. Bridges was fifty-seven years old at the time of the surgery. During the removal of the ovary, the ureter on the left side was accidentally severed. This was a known complication of this type of surgery.

¶ 7. Bridges had also scheduled an abdominoplasty, or a "tummy tuck," to be performed by Dr. Songcharoen to take place immediately after the operation in question was complete, yet while she was still under anesthesia. The proposed "tummy tuck" surgery was cancelled due to the complications with the severed ureter.

¶ 8. On March 26, 1999, Bridges filed a complaint against Dr. William S. Cook, Dr. John T. Kitchings and Jackson Healthcare for Women, P.A., claiming that Cook and Kitchings did not have her informed consent to remove her left ovary. Bridges dismissed her claim against Jackson Healthcare for Women before the trial began.

¶ 9. The jury returned a verdict in favor of Dr. Cook and Dr. Kitchings and the trial court denied Bridges' motion for a new trial, or in the alternative, for a JNOV.

ANALYSIS

I. DID THE LOWER COURT ERR BY ALLOWING THE DEFENDANTS TO CROSS EXAMINE BRIDGES USING MEDICAL RECORDS FROM HER PRIOR PHYSICIANS?

¶ 10. Bridges argues that counsel for Dr. Cook and Dr. Kitchings was allowed to refer to unsworn and un-sponsored medical records on several occasions. These records were generated by physicians who treated Bridges prior to the operation in question. These physicians were not called to testify at trial and they were not deposed by either party to the suit. Bridges cites several cases in claiming that such references to these records were a violation of her due process rights of the Fourteenth Amendment of the United States Constitution. Georgia Pacific Corp. v. McLaurin, 370 So.2d 1359, 1361-62 (Miss.1979); see also Jones v. Hatchett, 504 So.2d 198, 202-03 (Miss.1987)

.

¶ 11. Bridges specifically complains of reference made involving a statement Bridges made to one of her prior physicians "that she used the weed eater on two acres" after her ureter was severed. Bridges also specifically complains of references made involving two facelift operations and a breast augmentation operation that she had performed years prior to the operation in question. Finally, Bridges also specifically complains of references to the "tummy tuck" operation that was scheduled to take place on the same day of the operation in question. As we have stated above, the "tummy tuck" operation was not performed due to the complications involving the severed ureter.

¶ 12. We should first note that Bridges never asserted the physician/patient privilege in regard to the use of any of the statements for which she now complains. We should also note that there were no medical records introduced into evidence other than the consent forms for the operation in question which were signed by Bridges herself.

¶ 13. We will address the three groups of references Bridges complains of separately. First, Bridges complains of references involving a statement Bridges made to one of her prior physicians "that she used the weed eater on two acres" after her ureter was severed. To put this reference into context, during Bridges' direct testimony, she claimed that her life of being active and working in the yard was ended by the operation in question. During cross-examination, Bridges denied that her knee and back were part of the reason that she was no longer active. Bridges was then asked if she recalled a conversation with Dr. Vise in February of 1999, wherein she explained to him that she was unable to stand erect because of pain in her knee and back and that lifting, riding and working in the yard were aggravating factors. When Bridges answered that she did not recall making those statements, she was asked to review a document to refresh her memory. After reviewing this document, she admitted making those statements to Dr. Vise and that she occasionally worked in the yard. Bridges was then asked if she hurt her arm in June of 1999, while working on two acres of her yard with the weed eater. Bridges admitted that she did tell Dr. Vise that she had worked on two acres of her yard with the weed eater, but that she had exaggerated in making that statement. Counsel for Bridges made no objection to the statements involving the weed eater.

¶ 14. Failure to make a contemporaneous objection waives the right of raising the issue on appeal. Ballenger v. State, 667 So.2d 1242, 1259 (Miss.1995). The statements made by counsel for Dr. Cook and Dr. Kitchings were used to refresh Bridges' memory, which is consistent with Mississippi case law. Herrington v. Spell, 692 So.2d 93, 102 (Miss.1997). Further, statements involving the weed eater fall under the MRE 803(4) hearsay exception, where statements made for the purpose of medical diagnosis and made under circumstances indicating trustworthiness are allowed. Griffith v. State, 584 So.2d 383, 386 (Miss.1991). These statements fall under this exception.

¶ 15. Next, we have the references made involving two facelift operations and a breast augmentation operation that Bridges received prior to the operation in question. Bridges argues that these references were irrelevant and more prejudicial than probative. Bridges also asserts that "[t]he evidence from these medical records and regarding these plastic surgeries was hearsay and should not have been admitted, and its admission violated the Plaintiff's due process rights."

¶ 16. Bridges points out only two objections to the references involving the facelifts and breast augmentation that were overruled. Both occurred during Bridges' cross-examination when counsel for Dr. Kitchings and Dr. Cook asked Bridges about consenting to voluntary and unnecessary surgeries performed prior to the operation in question. The court held that the information was relevant and statements made by Bridges as to her state of mind at the time that she elected for these surgeries and consented to them were not hearsay. We agree that this information was relevant. We also agree that the MRE 803(1) hearsay exception, where "a statement of the declarant's then existing state of mind" applied to statements made by Bridges.

¶ 17. As for the "tummy tuck" references made, this operation was scheduled to take place at the same...