Clayton v. Thompson
| Decision Date | 28 August 1985 |
| Docket Number | No. 54711,54711 |
| Parties | R.S. CLAYTON, M.D. v. Michael B. THOMPSON. |
| Court | Mississippi Supreme Court |
Stanley F. Stater, III, Christopher & Stater, C.R. Montgomery, Montgomery & Smith-Vaniz, Canton, John H. White, Jr., McComb, for appellant.
V. Douglas Gunter, Jackson, for appellee.
En Banc.
The subject matter of this appeal is medical malpractice in which the plaintiff relies upon the theory of "loss of a chance" of "greater" recovery.
This medical malpractice suit was filed by Michael B. Thompson against R.S. Clayton, M.D., in the Circuit Court of Pike County. The jury awarded Thompson $75,000 damages. The circuit court granted a remittitur in the amount of $40,000 and, following acceptance of the remittitur, entered final judgment against Dr. Clayton in the amount of $35,000.
Clayton appeals assigning as error:
(1) The trial court erred when it qualified Dr. Hugh Robertson as an expert witness in the field of Diagnostic Radiology;
(2) The trial court erred in failing to grant the motion of appellant Clayton for a directed verdict;
(3) The trial court erred in overruling the motion of appellant Clayton for a new trial on the issue of liability;
(4) The jury verdict of $75,000 and the trial court's final judgment of $35,000 are excessive and evidence extreme bias and prejudice against appellant Clayton by the jury in the trial court;
(5) The trial court erred in failing to grant appellant Clayton's requested peremptory instruction; and in granting an instruction on behalf of the appellee regarding his theory of the case.
Thompson cross-appeals assigning as error:
(1) The trial court erred in granting a new trial as to damages unless the plaintiff accepted a remittitur of $40,000.
On July 8, 1979, appellee Michael Thompson of McComb injured his thumb while playing in a softball tournament.
The following day, Thompson went to see his family physician, Dr. John Boyd, who referred Thompson to the Southwestern Regional Medical Center for x-rays. The appellant, Dr. R.S. Clayton, chief radiologist at Southwest Medical Center, examined and interpretated x-rays of appellee Thompson's thumb and concluded in his written report that the x-rays revealed "no evidence of a fracture or dislocation."
Dr. Boyd, relying on his visual examination of Thompson's thumb and the findings of Dr. Clayton, diagnosed Thompson's injury as a "sprained thumb", prescribed medication for pain and recommended hot soaks.
Approximately four months later, on November 19, 1979, appellee Thompson returned to Dr. Boyd complaining of continued problems with his thumb. Dr. Boyd again referred Thompson to the Southwest Regional Medical Center for x-rays. At this time, Dr. Clayton found that the x-rays indicated a fracture of the metacarpal phalangeal joint (joint connecting thumb to hand). Based on this report, Dr. Boyd referred Thompson to Dr. Wm. H. Meyer, an orthopedic surgeon. On January 18, 1980, Dr. Meyer performed surgery upon Thompson to repair the torn ligament of the metacarpal phalangeal joint. Two stainless steel pins were drilled into the bone of the thumb and placed across the joint to hold it in place while the ligaments healed. Very little mobility was recovered in the joint As a result of the surgical fusion, Thompson can no longer bend the thumb joint. At trial, Dr. Meyer described Thompson's injury as permanent, with a resulting disability of 50 percent impairment to the thumb and 25 percent impairment to the hand. Dr. Meyer further testified that the chance of a more reasonable function of the thumb would have definitely been better if he had seen Thompson in July of 1979 rather than November of 1979.
where the ligament reconstruction was attempted and, over the next several months, Thompson continued to complain of pain. On March 23, 1981, Dr. Meyer performed a second operation in order to fuse the joint of Thompson's thumb.
Dr. Hugh Robertson, associate professor of radiology at Louisiana State University School of Medicine was qualified as an expert and testified on behalf of appellee Thompson at trial. Dr. Robertson testified that his examination of the July 9, 1979 x-rays revealed three separate fragments of bone around the metacarpal phalangeal joint of the thumb. According to Dr. Robertson, the presence of the three fractures would be critical to a treating physician, and the diagnosis of Dr. Clayton, by its failure to mention these fractures, deviated from the average standard care applicable to radiologist.
Dr. James M. Packer, a Jackson radiologist, was qualified as an expert and testified on behalf of the defendant that he found no fractures on the July x-rays of Thompson's thumb. Dr. John G. Caden, an orthopedic surgeon from Jackson, was qualified as an expert and testified for the defendant that no fractures or fragments of bone were visible in the July x-rays. Dr. Kenneth G. Carter, a Jackson radiologist, was qualified as an expert and testified for the defendant that he found nothing in the July x-rays that he would call a fracture. Carter, however, admitted that in a letter dated August 6, 1981, he stated that a review of the July x-rays revealed a tiny density overlying the first metacarpal head which "could represent a small cortical evulsion or might be nothing more than a film artifact." Dr. Carter explained that a cortical evulsion is a tiny splinter of bone which could be called a fracture.
Did the trial court err in qualifying Dr. Hugh Robertson as an expert in the field of diagnostic radiology?
Appellant objected at trial to the qualifications of Dr. Hugh Robertson as an expert in the field of diagnostic radiology based upon his absence of any familiarity with the standard of care applicable for a radiologist in McComb, Mississippi. The trial court overruled this objection and appellant assigns this ruling as error, relying on King v. Murphy, 424 So.2d 547 (Miss.1982).
In the recent case of Hall v. Hilbun, 466 So.2d 856 (Miss.1985) this Court stated that every doctor "has a duty to use his or her knowledge and therewith treat through maximum, reasonable, medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options." This Court held that a qualified medical expert witness may express an opinion regarding the meaning and import of the above duty of care given the peculiar circumstances of the case. The national standard of care announced by this Court in Hilbun contains a "resources-based caveat", that is, the duty of care is based upon the use of such medical facilities, services, equipment and options as are reasonably available. In the case sub judice, there was no suggestion that the x-ray facilities and equipment available to Dr. Clayton at Southwest Medical Center were in any way more limited than that available in other areas of the country.
Hall reaffirmed our general rule that a qualified expert witness may testify in cases where scientific or technical knowledge will be of assistance to the trier of the facts in determining a fact in issue. Hall It is apparent from this record that Dr. Robertson is in fact "qualified as an expert by knowledge, skill, experience, training or education." Hall, at p. 873; Hardy v. Brantley, 471 So.2d 358, 366 (Miss.1985). He was familiar with the x-ray equipment and facilities available to Dr. Clayton.
supra, at 873. Obviously, medical malpractice cases generally require expert witnesses to assist the trier of the facts to understand the evidence. Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765, 768 (Miss.1984)
In light of this Court's decision in Hall v. Hilbun, supra, which was expressly made retroactively applicable to "any case in which an appeal is pending and in which the issue has been preserved ...", qualification of Dr. Robertson as an expert in the field of diagnostic radiology was proper and appellant's first assignment of error is without merit. See Hardy v. Brantley at 366.
Did the trial court err in failing to grant appellant's motion for a directed verdict?
Appellant contends that the testimony of appellee's own orthopedic surgeon, Dr. William Meyer, so contradicted that of appellee's expert witness, Dr. Robertson, as to require a directed verdict for the appellant. At trial, Dr. Meyer testified that, while performing surgery on appellee's thumb, he did not observe any fractures in the area. The testimony of Dr. Meyer, an orthopedic surgeon, regarding his observations during surgery would not therefore negate the testimony of appellee's duly qualified expert in the field of diagnostic radiology.
In determining whether to grant a directed verdict, "the Court must look solely to the testimony in behalf of the party against whom the directed verdict is requested and consider that testimony as true along with all inferences which could be drawn therefrom favorable to such party, and if such evidence could support a verdict for him, the directed verdict or peremptory instruction should not be given." Gates v. Murphree, 286 So.2d 291, 292 (Miss.1973). Hall v. Hilbun, supra, at 883.
The trial court was of the opinion that Dr. Robertson's testimony created a jury issue on the question of defendant's liability. This Court has recognized that the trial judge's determination of whether or not a jury issue is tendered is entitled to great respect on appeal. City of Jackson v. Locklar, 431 So.2d 475, 479 (Miss.1983).
This assignment of error is without merit.
Did the trial court err in overruling defendant's motion for a new trial on the issue of liability?
Appellant offers no legal authority but simply submits that "by ordering a new trial on all issues...
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