Collins v. Joshi, 07-CA-59599

• Citation: 611 So.2d 898
• Decision Date: 17 December 1992
• Docket Number: No. 07-CA-59599,07-CA-59599
• Parties: Linda COLLINS v. Dr. C.V. JOSHI and Neshoba County General Hospital.
• Court: United States State Supreme Court of Mississippi

Page 898

611 So.2d 898

Linda COLLINS v. Dr. C.V. JOSHI and Neshoba County General Hospital.

No. 07-CA-59599.

Supreme Court of Mississippi.

Dec. 17, 1992.

Laurel G. Weir, Thomas L. Booker, Jr., Weir & Booker, Philadelphia, MS, for appellant.

Mark P. Caraway, George Q. Evans, Wise Carter Child & Caraway, Jackson, MS, for appellees.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

This medical malpractice action was filed by Linda Collins, a resident of Neshoba County, Mississippi, against Dr. C.V. Joshi and Neshoba County General Hospital claiming that both of the named defendants breached their duty to administer the minimum standard of medical care in the treatment of Collins on November 19, 1987, when she was discharged from the named hospital and given a tranquilizer shot which was detrimental to both Collins and the baby she was carrying. Collins appeals from a directed verdict granted by the lower court. Finding that Honorable Edward Williamson of the Neshoba County Circuit Court should have recused himself from this case, we reverse and remand this cause for further proceedings.

I.

On November 16, 1987, Linda Collins, a twenty-three-year-old female residing in Philadelphia, Mississippi, was admitted to Neshoba County General Hospital (Neshoba General) by its employee, Dr. Chandrashekhar V. Joshi, complaining of marked coughing, a high degree of fever, bronchovesicular breathing, and pain in her chest. Dr. Joshi diagnosed Collins as suffering from acute bronchitis. It was also discovered that Collins was 10-12 weeks pregnant. While in the hospital, Collins started having morning sickness. To treat the nausea, Dr. Joshi prescribed Amitrol and Compazine. She was given Compazine while in the hospital and given a prescription to take home when she was discharged. She was instructed to use the Compazine sparingly and only if the Amitrol didn't work. She was also given an antibiotic to treat the bronchitis. Collins was discharged on November 19.

Later in the day on November 19, Collins was rehospitalized at Neshoba General complaining of a "tingling" at the corner of her mouth, some slurred speech, a drawing of her face, and numbness of her tongue. Dr. Joshi administered Valium, Vistaril and Xanax. Collins responded well. Dr. Joshi's medical history indicates that Dr. Joshi believed Collins' symptoms of November 19 were more or less related to anxiety and nicotine withdrawal.

Prior to Collins' treatment by Dr. Joshi at Neshoba General, she had been hospitalized in July, 1987, by Dr. Augustus Soriano, her family doctor, for an ovarian cyst and endometriosis. Dr. Soriano admitted Collins to Winston County Hospital for a D & C. Collins was not pregnant at that time.

Following her treatment at Neshoba General and for the remainder of her pregnancy, Collins was treated by Dr. Soriano. Dr. Soriano admitted Collins to the Winston County Hospital on February 3, 1988, for treatment of an acute urinary tract infection. She was discharged on February 8. She was admitted again on March 14 to the Winston County Hospital due to some small leaking of amniotic fluid, high blood sugar, and abdominal cramping. Collins was diagnosed as having a threatened abortion. She was discharged on March 18, 1988. On March 30, Collins was admitted to Winston County Hospital again by Dr. Soriano due to another acute urinary tract infection. She was discharged on April 2. On April 23, Dr. Soriano admitted Collins to the hospital again for an acute urinary tract infection. She stayed in Winston County Hospital for four days. Collins entered the hospital again on May 22 in the early stages of labor. Collins returned home on May 23. On May 26, 1988, Collins gave birth to a healthy baby girl at the Winston County Hospital.

After filing a medical malpractice lawsuit against Dr. Joshi and Neshoba General, Collins moved for the assigned judge to recuse himself based on his relationship with the hospital. At a hearing held on June 23, 1988, Judge Williamson considered the recusal motion. He consolidated consideration on the motion with other pending recusal motions in other pending malpractice cases. Collins based her motion on Judge Williamson's legal representation from about 1981 until December, 1985, of the Neshoba General trustees. Dr. Joshi had been hired by Neshoba General during the time of Judge Williamson's representation. Collins also reminded the court that Judge Williamson had sued Dr. Augustus Soriano, her expert witness, on behalf of Neshoba General on one occasion and had won the suit. Judge Williamson explained that he had sat in on the interviews of Dr. Joshi but that he did not draft the contract for employment of Dr. Joshi. Judge Williamson also explained that his recusal in a prior similar case had caused a great inconvenience. Judge Williamson then overruled the recusal motion.

The trial in this matter began on July 20, 1988. Collins' witnesses consisted of herself and Dr. Soriano. Dr. Soriano, who was never tendered as an expert witness, testified that the prescribing of Compazine, Xanax, and Vistaril by Dr. Joshi were negligent acts because all three drugs are contraindicated in the first trimester of pregnancy because they can result in possible damage to the fetus. Dr. Soriano admitted that he has not found any damage to Collins' child and said he was aware of several studies showing that Compazine does not appear to cause any teratogenesis, development of malformed or monstrous babies.

Dr. Soriano acknowledged the subspecialty of maternal-fetal medicine within obstetrics and that maternal-fetal experts recognize the first 71 days of a pregnancy as the critical period. Dr. Soriano admitted that Collins was 85 days into her pregnancy when she was first treated by Dr. Joshi. He also admitted that the Physicians Desk Reference on drugs indicated that almost every drug in its listing had to be used with caution during a pregnancy. He conceded that he treated Collins on November 5, 1987, for a cold when Collins was within the critical 71-day period. Dr. Soriano gave Collins Keflex and Dilor-G as well as Tylenol No. 3 with codeine. He admitted that administration of codeine is contraindicated during pregnancy. He also gave her an antibiotic, Lincocin. He conceded that Lincocin is condemned in the PDR for use during the 71-day period of a pregnancy and is condemned for use with an upper respiratory infection such as the one Collins had.

Dr. James Nello Martin, Jr., an associate professor of obstetrics at the University of Mississippi Medical Center and board-certified physician in maternal-fetal medicine, testified for the defense as an expert. He reviewed the records of Collins' treatment at Neshoba General and found no fault with her treatment. He also said that Collins was beyond the critical 71-day period when she was seen by Dr. Joshi. According to Dr. Martin, a baby born normal virtually excludes any structural problem caused by drugs.

When Collins rested her case, the motion for a directed verdict made by defense counsel was granted.

II.

The legal standards pertaining to judicial conduct come primarily from three sources. The Mississippi Constitution mandates:

No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties....

Miss.Const. art. 6 Sec. 165 (1890). The statutes of this state also regulate judicial conduct and provide an additional instance which requires a judge to disqualify him or herself from presiding over a case, when the judge may have been "of counsel." Miss.Code Ann. Sec. 9-1-11 (1972) provides The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.

In addition to the constitutional and statutory provisions regulating judicial conduct, the Code of Judicial Conduct, Canon 3 C(1), requires disqualification of a judge under the following conditions:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding:

When the conduct of a judge is being examined under the dictates of a canon of the Code of Judicial Conduct, "the Canon enjoys the status of law such that we enforce it rigorously, notwithstanding the lack of a litigant's specific demand." Collins v. Dixie Transport, Inc., 543 So.2d 160, 164 (Miss.1989); Jenkins v. Forrest County General Hospital, 542 So.2d 1180, 1181 (1989); Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). The standard by which this Court determines if a judge should have disqualified him or herself, is an objective standard under Canon 3. "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986); Jenkins, 570 So.2d at 1192; Collins, 543 So.2d at 166. The presumption is "that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a judge is not disqualified under the constitutional or statutory provisions, "the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion." Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner, 573 So.2d at 677; Ruffin v....