Bullock v. Lott
| Decision Date | 13 September 2007 |
| Docket Number | No. 2005-CA-01613-SCT.,2005-CA-01613-SCT. |
| Citation | 964 So.2d 1119 |
| Parties | Ronald A. BULLOCK, M.D. v. W.L. LOTT and Laura Lott, Individually, and on Behalf of the Wrongful Death Beneficiaries, as Parents of Dustin Lott, a Deceased Minor. |
| Court | Mississippi Supreme Court |
J. Robert Ramsay, Amanda Clearman Waddell, Hattiesburg, attorneys for appellant.
Norman William Pauli, Jr., Ray T. Price, Hattiesburg, attorneys for appellees.
EN BANC.
¶ 1. W.L. Lott and Laura Lott, the parents of Dustin Lott, filed a wrongful death and medical malpractice action against Ronald A. Bullock, M.D., alleging that Dustin Lott died as a result of Dr. Bullock's negligent failure to provide adequate medical care. Specifically, the plaintiffs rely upon the theory of "loss of chance" of "greater" recovery. Finding that the trial court erred in permitting Dr. Gibson to testify regarding purported facts not supported by the evidence, we are constrained to reverse the Covington County Circuit Court's judgment in favor of the Lotts and to remand this case for a new trial consistent with this opinion.
¶ 2. On Friday, January 26, 2001, Dustin Lott (Dustin), who was sixteen years old, was taken to the office of Ronald A. Bullock, M.D., by his mother, Laura Lott. Dustin's chief complaint concerned four headaches associated with nausea and vomiting over the last month. Dr. Bullock examined Dustin and his notes indicate Dustin complained that at times these headaches were associated with flashing lights. Dustin had no history of head trauma; however, Dustin continued to have sinus congestion and yellow drainage for which Dr. Stephen Massey had recently treated him.1 Dr. Bullock's examination revealed that Dustin had moderate nasal congestion with yellow exudate. The remainder of the examination was normal. Dr. Bullock diagnosed Dustin with migraine headaches and sinusitis and prescribed Dustin a Z-pak and Prednisone 40 mg, a steroid. Additionally, Dr. Bullock gave Dustin some Midrin capsules for his migraines. Two days later on Sunday, January 28, 2001, Dustin died in his sleep at his home in Seminary, in Covington County.
¶ 3. Immediately following Dustin's death, on Monday, January 29, 2001, a post mortem examination was performed by Dr. Steven T. Hayne. Dr. Hayne's autopsy report stated that Dustin's immediate cause of death was an intraventricular abscess to the brain and concluded Dustin's underlying cause of death to be findings suggestive of sinusitis. Dr. Hayne did not testify at trial.
¶ 4. On December 30, 2002, W.L. Lott and Laura Lott, Dustin's parents, filed a wrongful death and medical malpractice action against Drs. Bullock and Massey in the Circuit Court of Covington County. The Lotts alleged that Dr. Bullock and Dr. Massey should have included possible brain abscess in their differential diagnoses of Dustin. The Lotts maintained that Dr. Bullock and Dr. Massey were both negligent by not ordering a CT scan, MRI and/or waters view,2 or sinus x-ray which would have revealed that Dustin had a brain abscess. Furthermore, the Lotts alleged that Dr. Bullock and Dr. Massey breached the standard of care by not conducting such tests in order to rule out this condition, and that this negligence caused Dustin's death.
¶ 5. On April 9, 2003, Dr. Bullock filed a motion for change of venue alleging that venue was proper in Forrest County, where the treatment of Dustin occurred, as opposed to Covington County, where Dustin died. On May 15, 2003, Dr. Massey likewise filed a motion for change of venue, asserting that venue was proper in either Forrest County or Lamar County, where either doctor practiced medicine, but not in Covington County, where Dustin died. On March 28, 2005, the Lotts responded to these motions, and on May 3, 2005, the trial court denied both motions for change of venue.3 On May 9, 2005, the trial court granted the Lotts' ore tenus motion to dismiss Dr. Massey, only, with prejudice.
¶ 6. On June 17, 2005, Dr. Bullock filed a Motion in Limine Regarding the Anticipated Testimony of Dr. Larry Gibson, who was the Lotts' sole trial medical expert. On June 22, 2005, Dr. Bullock filed an Amended Motion in Limine Regarding the Anticipated Trial Testimony of Dr. Larry Gibson, asserting that Dr. Gibson had amended his opinion and that Dr. Gibson should thus be prohibited from offering these supplemental opinions. The trial judge denied Dr. Bullock's motions in limine, and on June 27, 2005, the trial of this case commenced with Judge Robert G. Evans presiding.
¶ 7. Dr. Larry F. Gibson, a family practice physician, was tendered as an expert "in family practice and urgent care medicine" and accepted by the trial court as an expert "in the fields tendered" to offer opinion testimony on behalf of the plaintiffs. Dr. Gibson testified that the proper standard of care when a physician is confronted with the symptoms exhibited by Dustin was to order a CT scan, MRI, or culture and sensitivity test to determine whether the patient was suffering from a brain infection. Dr. Gibson testified that Dr. Bullock breached the standard of care by not ordering a CT scan, MRI, or culture and sensitivity test. Dr. Gibson further opined that (1) had Dr. Bullock ordered a CT scan, MRI, or culture and sensitivity test, (2) had the test results come back positive, and (3) had Dustin been admitted into the hospital to receive the proper care, Dustin would have had at least a fifty-percent chance of surviving.
¶ 8. Dr. Bullock called three medical experts to rebut Dr. Gibson's testimony—Dr. James Lauridson, Dr. Edwin Dennard, and Dr. John Lancon. Dr. Lauridson, a forensic pathologist, testified that Dustin's cause of death was not intraventricular brain abscess but spontaneous purulent ventriculitis, a rare condition with a very rapid onset. Dr. Dennard, a board-certified family medicine physician, testified that Dr. Bullock had fully met the standard of care. Dr. Dennard further stated that Dr. Bullock had made the correct diagnosis based on Dustin's medical records and complaints. Dr. Lancon, a board-certified pediatric neurosurgeon, testified that Dustin's neurological examination was normal and that there was no indication that further testing was needed. In fact, Dr. Lancon testified that even had Dustin been referred to him, he would not have obtained a CT scan or an MRI scan.
¶ 9. During trial, Dr. Bullock moved to strike the portion of counsel's cross-examination of Dr. Bullock using an article found on the internet from the University of Maryland Medical School, on the basis that such cross-examination was not permissible under Miss. R. Evid. 803(18). The trial court found that cross-examination with the article was acceptable as long as the article was not admitted into evidence. Additionally, during the cross-examination of Dr. Dennard, the Lotts' counsel questioned Dr. Dennard from a learned treatise taken from the internet entitled Primary Care Medicine by Nobles, published by Mosby. Again, Dr. Bullock objected on the basis of Rule 803(18), but the Lotts' counsel was permitted to cross-examine Dr. Dennard using Primary Care Medicine.
¶ 10. At the conclusion of the presentation of the evidence, on July 1, 2005, the jury returned a unanimous verdict for the Lotts in the amount of $400,000. On July 8, 2005, the trial court entered a judgment consistent with the jury verdict, and the Lotts filed a Motion for Additur and, in the Alternative, a Motion for a New Trial on the Issue of Damages Only. On July 15, 2005, Dr. Bullock filed his Response and Objection to the Motion for Additur and, in the Alternative, a Motion for a New Trial on the Issue of Damages Only. In addition, Dr. Bullock filed a Motion for Judgement Notwithstanding the Verdict or Alternatively for a New Trial.
¶ 11. The trial court heard these motions on July 29, 2005, and on August 3, 2005, it entered an order granting an additur in the amount of $250,000, stating that the verdict was against the overwhelming weight of the evidence, pursuant to Miss. Code Ann. § 11-1-55 (Rev.2002). Consistent with the statute, the trial court also alternatively ordered a new trial on the issue of damages only (if the additur was not accepted). On August 8, 2005, the Lotts filed their Notice of Acceptance of Additur. On August 10, 2005, the trial court entered an order denying Dr. Bullock's Motion for a Judgment Notwithstanding the Verdict and New Trial. On August 12, 2005, Dr. Bullock filed his notice of appeal with this Court assigning the following errors:
(1) The trial court erred in denying Dr. Bullock's motion to change venue;
(2) The trial court erred in allowing the plaintiffs' expert, Dr. Gibson, to testify over the defendant's Daubert objections;
(3) The trial court erred in allowing Dr. Bullock and a defense medical expert, Dr. Dennard, to be cross-examined on articles which were not properly authenticated under Miss. R. Evid. 803(18);
(4) Plaintiffs' counsel made improper and unfairly prejudicial statements during closing arguments;
(5) The trial court erred in denying Dr. Bullock's motion for directed verdict and motion for judgment notwithstanding the verdict;
(6) The trial court erred in granting the plaintiffs' motion for additur.4
¶ 12. When reviewing the trial court's denial of a motion to change venue, we apply an abuse of discretion standard of review. Crenshaw v. Roman, 942 So.2d 806, 809 (Miss.2006); Am. Home Prods. Corp. v. Sumlin, 942 So.2d 766, 768 (Miss. 2006). Thus, on appeal we will not overrule a trial court's ruling "unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case." Crenshaw, 942 So.2d at 806 (quoting Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss. 2003)).
¶ 13. Dr. Bullock resides and practices medicine in Forrest County, and ...
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