Burnham v. Tabb

• Decision Date: 20 May 1987
• Docket Number: No. 56643,56643
• Citation: 508 So.2d 1072
• Parties: William T. BURNHAM, Sr., William T. Burnham, Jr., and Rita Burnham Farmer v. Dr. W. Granville TABB, Sr.
• Court: Mississippi Supreme Court

Page 1072

508 So.2d 1072

William T. BURNHAM, Sr., William T. Burnham, Jr., and Rita Burnham Farmer v. Dr. W. Granville TABB, Sr.

No. 56643.

Supreme Court of Mississippi.

May 20, 1987.

Michael S. Allred, David A. Barfield, Satterfield & Allred, Jackson, for appellants.

Mildred M. Morris, Jimmie B. Reynolds, Jr., Whitman B. Johnson, III, Steen, Reynolds, Dalehite & Currie, Jackson, for appellee.

Before HAWKINS, PRATHER and GRIFFIN, JJ.

PRATHER, Justice for the Court:

This medical malpractice case was filed in the Circuit Court of the First Judicial District of Hinds County. The appellants, William T. Burnham, Sr., William T. Burnham, Jr. and Rita Burnham Farmer, heirs of Lynnie G. Burnham, deceased, sued the appellee, Dr. W. Granville Tabb, Sr., and Madison General Hospital, Dr. A.P. Durfey, and Dista Products Co., a Division of Eli Lilly and Co. Madison County Hospital was granted a summary judgment on the grounds of sovereign immunity. Before trial the plaintiffs voluntarily non-suited Dista Products and Dr. A.P. Durfey. At trial the parties entered into a stipulation that stated that by prescribing Nalfon to Mrs. Burnham, Dr. Tabb failed to exercise reasonable care, according to the applicable standards of care and skill ordinarily exercised by other doctors under the same or similar circumstances. The court then instructed the jury that the only remaining point to decide was the question of liability, if any, in this case, or the following issues:

(1) Whether or not Mrs. Burnham had an adverse reaction to the drug Nalfon prescribed by Dr. Tabb, and

(2) If she did, whether or not the effects of the drug contributed to or caused her death.

The jury returned a verdict in favor of Dr. Tabb. On appeal, the Burnhams contend:

The trial court erred in refusing to grant a peremptory instruction, a j.n.o.v., or a motion for a new trial.

This Court affirms the verdict in the lower court.

I.

Lynnie G. Burnham, a sixty-five year old white female, suffered from chronic allergies, hayfever and asthma.

In 1968, while at Mercy Hospital in Vicksburg for removal of the polyps in her nasal cavity, Mrs. Burnham was given a dose of aspirin for a headache and had an acute allergic reaction. Mr. Burnham testified that her reaction time to the aspirin was within five minutes, and that Mrs. Burnham began, within ten minutes, gasping for breath and turning blue. She was rushed to the emergency room for resuscitation and soon, fully recovered.

When undergoing a second polyp removal surgery at St. Dominic's Hospital, Burnham was again given either aspirin or penicillin and had an adverse reaction, but fully recovered in response to treatment.

Again in 1976, Mrs. Burnham had a reaction to aspirin in tablets of Percodan. Mrs. Burnham experienced swelling in her lips and eyelids and experienced a choking sensation. Again she immediately responded to treatment. Since the mid 1960's, Mrs. Burnham had a history of asthma attacks and such attacks occurred approximately every three weeks. Whenever Mrs. Burnham was treated medically, she would inform the responsible personnel that she was allergic to aspirin and penicillin and asked them to mark her chart so she would be treated accordingly.

In 1983, Lynnie Burnham was seen by Dr. Granville Tabb, ophthalmologist, for vision problems. He scheduled an extra capsular cataract surgery performed on March 11, 1983. Prior to surgery, Tabb noted Burnham's allergy to aspirin, penicillin and thermal blankets. The surgery was successful.

Mrs. Burnham saw Dr. Tabb for her first post-operative visit on March 17, 1983. No complications were noted. On March 24 Mrs. Burnham again saw Dr. Tabb. During this visit Dr. Tabb prescribed the drug Nalfon in a 600 milligram dose to Mrs. Burnham. Dr. Tabb claims that the Nalfon was prescribed to combat cystoid macula edema (swelling in the eye), while the Burnhams claim it was prescribed to treat arthritic pain in Burnham's knee joints.

After leaving Dr. Tabb's office, Mrs. Burnham and her husband traveled back to Canton, Mississippi and had the prescription for Nalfon filled. Mrs. Burnham then traveled to her home, had lunch and took one of the Nalfon tablets. Shortly after ingesting the Nalfon, Mrs. Burnham began having difficult breathing and was taken to the Madison General Hospital. At the hospital, no mention was made of the fact that Mrs. Burnham had taken Nalfon. The nurse in attendance first administered oxygen by mask to Mrs. Burnham. The nurse then called Dr. Durfey who instructed her to administer a shot of Susphirine. Shortly thereafter Mrs. Burnham went into respiratory arrest. CPR was administered and a tube was put down into her lungs. After Mrs. Burnham began to recover the tube was removed. But she again arrested, and the tube was again inserted to force air into Mrs. Burnham's lungs. She was transferred to St. Dominic's Hospital and put under the care of Dr. David O. Westbrook a specialist in critical care medicine. There it was discovered that the oxygen tube inserted by Madison General was only supplying air to the right lung. Mrs. Burnham stayed in a coma for approximately one week and remained hospitalized for four weeks prior to her death on April 29, 1983. According to the death certificate, her cause of death was acute bacterial septicemia (blood disease), acute respiratory failure and renal (kidney) failure.

II.

As in all claims for negligence, in order to establish a prima facie case for medical malpractice, the following elements must be proven:

(1) The existence of a duty on the part of 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 such standard required of the defendant;

(3) The breach of such duty by the defendant was a proximate cause of the plaintiff's injury;

(4) Injury resulting to the plaintiff's person. W. Keeton, Prosser & Keeton on Torts, Sec. 41 (5th. ed. 1984).

In this case, the defendant, Dr. Tabb, stipulated that by prescribing Nalfon to Mrs. Burnham, he failed to exercise reasonable care according to the applicable standards of care and skill ordinarily exercised by other doctors under the same or similar circumstances. Therefore, Dr. Tabb acknowledged the existence of the duty owed to Mrs. Burnham and a consequent breach of that duty. Yet Dr. Tabb denies that ingestion of the Nalfon caused an allergic reaction and denies that the Nalfon was in any way causally related to Mrs. Burnham's death. Thus the issue of causation is the crucial question in this appeal.

Proximate cause is an essential element in an action of negligence that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. W. Keeton, Prosser & Keeton on Torts, Sec. 41 (5th ed. 1984).

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough....

Id. See also Tombigbee Electric Power v. Gandy, 216 Miss. 444, 62 So.2d 567 (1953) (even where negligence is shown, that fact alone affords no basis for the recovery of damages unless it further appears from direct evidence or reasonable inference that such negligence proximately contributed to the damage).

Appellants challenged the verdict for Dr. Tabb and contend that the trial court erred in denying a peremptory instruction, the motion for a judgment notwithstanding the verdict and the motion for a new trial.

Jury instruction P-1 read as follows:

The court instructs you to find in favor of the plaintiff, William T. Burnham, Sr., William T. Burnham, Jr. and Rita Burnham Farmer, against the defendant, Dr. Granville Tabb, Jr., and that you are to determine damages pursuant to other instructions of the court.

The rule upon granting such an instruction, a peremptory one, is as follows:

Where such a request has been made, the trial court must consider all of the evidence--not just the evidence which supports the non-movant's case--in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion as required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of a partial judgment might reach different conclusions, the motion should be denied....

Mississippi Farm Bureau Mutual Insurance Co. v. Todd, 492 So.2d 919, 927 (Miss.1986); Weems v. American Security Insurance Co., 450 So.2d 431, 435 (Miss.1984).

Before a motion for a j.n.o.v. has been made the trial court considers the evidence in the same fashion as when a motion is made for a peremptory instruction. If the facts and inferences point overwhelmingly in favor of the movant, granting the motion is required. On the other hand, if there is substantial evidence of such quality and weight that reasonable and fair-minded men might reach different conclusions, the motion should be denied and the jury's verdict allowed to stand. Jesco Inc. v. Whitehead, 451 So.2d 706 (Miss.1984) (Robertson's concurring opinion). See also McIntosh v. Deas, 501 So.2d 367 (Miss.1987); Bell v. City of Bay St. Louis, 467 So.2d 657 (Miss.1985); Stubblefield v. Jesco Inc., 464 So.2d 47 (Miss.1984).

When a...