Dailey v. Methodist Medical Center, No. 2000-CA-00259-COA.

• Decision Date: 24 July 2001
• Docket Number: No. 2000-CA-00259-COA.
• Citation: 790 So.2d 903
• Parties: Susan Joyce DAILEY, Appellant v. METHODIST MEDICAL CENTER, Dr. Martin Newcomb, Sarah Green, Renida Dee and Darlene Burt, Appellees.
• Court: Mississippi Court of Appeals

790 So.2d 903

Susan Joyce DAILEY, Appellant v. METHODIST MEDICAL CENTER, Dr. Martin Newcomb, Sarah Green, Renida Dee and Darlene Burt, Appellees.

No. 2000-CA-00259-COA.

Court of Appeals of Mississippi.

July 24, 2001.

Edward P. Lobrano Jr., Attorney for Appellant.

Jim Bullock, Dallas, TX, James T. McColgan III, Memphis, TN, Michael Verdier Cory Jr., Lanny R. Pace, Jackson, Attorneys for Appellees.

Before McMILLIN, C.J., PAYNE, and LEE, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. This is a case bringing several claims against the defendants, stemming from incidents which occurred while Ron Dailey was a patient at Methodist Medical Center. The defendants ultimately made motions for summary judgment, which were granted. Susan Dailey now appeals from the summary judgments. Finding that this case is not appropriate for summary judgment, we reverse and remand for trial on the merits. We affirm on the cross-appeal.

¶ 2. To better understand the procedural aspects of this case, a time-line of pertinent filings and deadlines follows:

DATE FILED OR *DEADLINE DOCUMENT OR EVENT 12/19/97 - Complaint Filed by Dailey 02/13/98 - Service of Interrogatories to Dailey, Request for Production of Documents filed by Newcomb 05/11/98 - Service of Plaintiff's Answer to Methodist's Interrogatories (Which includes content of expected expert testimony) 03/09/99 - Scheduling Order Filed 04/30/99 - *Deadline for Designation of Plaintiffs Experts 05/03/99 - Designation of Experts Filed by Plaintiff (Signed on 4/30/99). 05/24/99 - Designation of Experts by Green and Newcomb 05/25/99 - Motion for Summary Judgment by Newcomb 05/31/99 - *Deadline for Designation of Defendants' Experts (Plus 30 days for Green) 07/15/99 - *Deadline for Completion of Discovery (Plus 30 days for Green) 07/19/99 - Designation of Experts and Disclosure of Expected Testimony by Methodist, Dee and Burk 08/15/99 - *Deadline for Service of All Motions other than Evidentiary and In Limine 08/25/99 - Motion for Summary Judgment by Methodist Defendants - Itemization of Facts - Memo in Support of Motion 08/30/99 - Motion for Summary Judgment by Green 10/07/99 - Response by Plaintiff to Methodist Defendants' Itemization of Facts - Response to Methodist Defendants' Motion for Summary Judgment - Documents Submitted in Opposition to motion 10/15/99 - Reply to Response by Methodist Defendants - Plaintiff's Documents and Supplemental Documents in Response to Newcomb's and Methodist's Motions for Summary Judgment (Including Blackston's Affidavit and Hume's Supplemental Affidavit) 01/18/00 - Order granting Methodist's, Dee's and Burk's Motions for Summary Judgment 01/19/00 - Opinion and Order granting Newcomb's Motion for Summary Judgment and Dismissal - Order granting Green's Motion for Summary Judgment and Dismissal - Dismissal as to Methodist, Dee and Burk 02/15/00 - Notice of Appeal

STANDARD OF REVIEW

¶ 3. An appeal from summary judgment is reviewed de novo. Cossitt v. Alfa Ins. Corp. 726 So.2d 132, 136 (¶ 19) (Miss.1998). Therefore, the question is whether the appellant is entitled to relief as a matter of law. An overview of the law concerning a trial court's grant of summary judgment follows:

The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought. We do not try issues. Rather, we only determine whether there are issues to be tried. Furthermore, it is well-settled that motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of denying the motion. The focal point of our de novo review is on material facts. In defining a "material" fact in the context of summary judgments, the Mississippi Supreme Court has stated that "[t]he presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense." Roebuck v. McDade, 760 So.2d 12 (¶ 9) (Miss.Ct. App.1999) (citations omitted).

Evans v. Jackson Coca-Cola Bottling Co., 771 So.2d 1006, 1008 (Miss.Ct.App.2000). "All that is required of a nonmoving party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under ... Miss. R. Civ. P. 56(c)." Spartan Foods Systems, Inc. v. American Nat'l Ins. Co., 582 So.2d 399, 402 (Miss.1991) (citations omitted).

TIME LINE OF EVENTS

¶ 4. The following time line contains the events alleged, as gleaned from the complaint, defendant's answers to the complaint, depositions of defendants, deposition of Dr. Arthur Hume, exhibits attached to pleadings, disclosures of expected expert testimony, affidavits, answers to interrogatories and other documents before this Court:

December 27, 1995:

— Ron was admitted to Methodist Medical Center to build up fluid levels and reduce blood sugar count.

— A sodium chloride drip was installed with orders for an initial setting of 200 ml/hour for the first five hours, then to be reduced to 150 ml/hour until the next day.

December 28, 1995:

— The drip was supposed to be reduced to 50 ml/hour, but was not reduced.

— During the night, Ron had chills and a fever. Susan went to a nurse but was advised that the hospital had no blankets. Susan was told to get two sheets out of the linen closet. Susan finally had to get linens from a vacant bed.

— Despite Ron's elevated fever, a nurse did not come to check on him. Susan attempted to call the nurses station several times, but no one answered. Susan went to the nurse's station and learned that no one was on duty on the floor.

December 29, 1995:

— a.m.—Ron had a radiation treatment

— 1:15 p.m.—Susan went home to get needed items. Before leaving, she talked to the nurses about leaving a note for Ron. She left his door open so one could see down the hall.

— Ron attempted to get to the bathroom, but fell and severely injured his kneecaps. He could not get up. His IV was partially pulled out and leaking. He could not rouse any assistance and no one came to check on him.

— About 1-½ hours later, Ron's sister came to visit and found Ron on the floor.

— Nothing was done for the pain in his knee caps and he was not otherwise treated for the fall.

— Ron was never able to walk again and was completely bedridden thereafter.

December 31, 1995:

— At approximately 2:00 a.m., defendant nurse, Sarah Green, erroneously installed Pitocin (Oxytocin—a labor inducing drug which stimulates contractions) into Ron's IV.

— The Pitocin was administered at 150 ml/hour, far in excess of properly administered dosage of Pitocin, even though the ordered rate for the correct medication (sodium chloride) was only 50 ml/hour. Standard precautionary literature for Pitocin advises that it can result in water retention and induce water intoxication, which allegedly occurred in Ron.

— The dosage of Pitocin allegedly exacerbated the effects of a sepsis condition with which Ron was infected while in the hospital.

— Between 3:00 and 4:00 a.m., Ron was gasping for breath and becoming increasingly swollen. Susan was frightened for him.

— At approximately 7:30 to 8:00 a.m., Susan went to the nurse's station and advised the desk clerk that she felt Ron was dying.

— At 8:05 a.m., defendant nurse, Renida Dee, made an entry on Ron's notes that she lowered the drip rate to 50 ml/hour. She made no notation that Pitocin was being administered rather than sodium chloride.

— This was a false entry by Dee, regardless, because when the error was finally discovered, it was still being administered at 150 ml/hour.

— Around 8:45 a.m., Dr. Thigpen's "opinion," which is actually the defendant's disclosure of expected testimony, stated that on the 31st, "Ron was somewhat short of breath in the morning and complained of discomfort and was given IV Lasix. He complained of abdominal fullness and distention." In other words, Ron was given Lasix to combat the swelling now alleged to have been caused by the Pitocin, yet even when the Lasix was added to his IV, the nurse still did not notice that Ron was being given the wrong drug. The disclosure states that "it was noted at that point on the 31st that he had been erroneously placed on Pitocin ...", making it sound as if it was discovered at the time the Lasix was given, but it was not.

— Approximately 11:00 a.m., Dr. Newcomb came into the room, but did not discover the erroneous medication being administered at a higher rate than was prescribed for the sodium chloride. He had prescribed morphine earlier and now prescribed Dilaudid.

— At 11:45 a.m., Ron's face was red although the rest of his body was white. His breathing was labored and he was having difficulty breathing at all. His ankles were swollen to almost the size of basketballs.

The disclosure of expected testimony of Dr. Thigpen claims that when the Pitocin was discovered, Ron was initially fairly comfortable, but became increasingly uncomfortable with tachypnea and hypotension on the evening of the 31st.

— At 12:50 p.m., Ron's stepdaughter, Michelle Bowman, discovered that the name "Tracy Henderson," and a room number different than Ron's, was on the IV bag. The label clearly reflects "lactated ringers" and "Pitocin," and "1,000 cc." There was 87 cc's remaining in the bag.

— Susan and Michelle went to the nurse's station and advised the desk clerk that Ron

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