DeLaughter v. Lawrence County Hosp.

• Decision Date: 22 April 1992
• Docket Number: No. 07-CA-59416,07-CA-59416
• Citation: 601 So.2d 818
• Parties: Robbie DeLAUGHTER v. LAWRENCE COUNTY HOSPITAL and Roger Collins, M.D.
• Court: Mississippi Supreme Court

Page 818

601 So.2d 818

Robbie DeLAUGHTER v. LAWRENCE COUNTY HOSPITAL and Roger Collins, M.D.

No. 07-CA-59416.

Supreme Court of Mississippi.

April 22, 1992.

As Corrected on Denial of Rehearing July 1, 1992.

John H. Cocke, Merkel & Cocke, Clarksdale, for appellant.

J. Robert Ramsay, Nancy E. Steen, Bryant Clark Dukes Blakslee Ramsay & Hammond, Hattiesburg, Stephen P. Kruger, Albert B. White, Upshaw Williams Biggers Page & Kruger, Jackson, for appellee.

EN BANC.

DAN M. LEE, Presiding Justice, for the Court:

I.

On the morning of Saturday, February 2, 1985, seventy (70) year old Tera Lambert was taken by ambulance from her home to the Lawrence County Hospital (hereinafter "the Hospital"), seen by the emergency room physician, Dr. Roger Collins, and admitted to the Intensive Care Unit. Ms. Lambert's regular physician, Dr. Brantley Pace, examined her Sunday afternoon; she was stable. At approximately 10:00 p.m. Sunday evening, the ICU nurse, who had just come on shift, observed that Ms. Lambert's blood pressure was elevated, she was confused, her speech was non-intelligible, and she was having an abnormal heart rhythm. The nurse notified Dr. Collins who, without assessing the patient, told the nurse to continue Ms. Lambert's present treatment.

At approximately 8:00 a.m. on Monday morning, Ms. Lambert had a grand mal seizure. As a result of the seizure, Ms Robbie DeLaughter, one of Ms. Lambert's eight (8) children, filed suit on behalf of all the children against Lawrence County Hospital, Dr. Collins and Dr. Pace in January, 1987, alleging wrongful death resulting from failure to diagnose and negligence in destruction of hospital records. Following discovery, Dr. Pace was dismissed from the suit. After five (5) days of trial, the jury returned a 9-3 verdict in favor of the Hospital and Dr. Collins. DeLaughter filed a Motion for a New Trial, which the trial court overruled. Aggrieved, DeLaughter timely perfected appeal to this Court raising three assignments of error. Finding merit to two assignments of error, we reverse and remand for a new trial on the merits as to Lawrence County Hospital.

Lambert became comatose. She was transferred to St. Dominic Hospital in Jackson, Mississippi, upon the orders of Dr. Pace. A CT scan was performed which indicated that Ms. Lambert had a subarachnoid aneurysm, which had hemorrhaged. Ten days later the aneurysm ruptured and Ms. Lambert died.

II.

DeLaughter divides her first assignment of error--that the jury verdict was the result of bias and prejudice--into three (3) sub-assignments: the jury verdict was (1) against the overwhelming weight of the evidence; (2) the result of pressure exerted upon the jury in the form of community rumors which tainted the jury venire and hospital personnel in attendance at trial; and (3) the result of jury tampering. We have carefully reviewed the record in this case with each of these sub-assignments in mind.

Although DeLaughter argues on appeal that the verdict is against the overwhelming weight of the evidence, we note that she failed to raise this sub-assignment as a ground for a new trial in the lower court. Our law is well established that generally this Court refuses to review a claim that a verdict is contrary to the overwhelming weight of the evidence when the assignment is raised for the first time on appeal. See Howard v. State, 507 So.2d 58 (Miss.1987); Ponder v. State, 335 So.2d 885 (Miss.1976); Cooper v. Lawson, 264 So.2d 890 (Miss.1972); Mercier v. Davis, 234 So.2d 902 (Miss.1970). Following this rule, we find that DeLaughter is procedurally barred from raising this sub-assignment of error on appeal.

Likewise, we decline to review DeLaughter's second sub-assignment. We find the record void as to the composition of the audience during the five (5) days of trial. We, further, find that DeLaughter voiced no objection as to the composition of the jury venire or the composition of the jury selected to hear her case. In accordance with our case law, this sub-assignment of error is not properly before us as DeLaughter failed to preserve the issue for appeal. See Moore v. Moore, 558 So.2d 834 (Miss.1990); White v. State, 532 So.2d 1207 (Miss.1988); Britt v. State, 520 So.2d 1377 (Miss.1988); Methodist Hospitals of Memphis v. Guardianship of Marsh, 518 So.2d 1227 (Miss.1988); Jenkins v. State, 483 So.2d 1330 (Miss.1986).

We do review the third and most serious sub-assignment of error--the question of jury tampering. This Court holds to "the long honored principle that '[w]hatever tends to threaten public confidence in the fairness of jury trials, tends to threaten one of our sacred legal institutions.' Lee v. State, 226 Miss. 276, 286, 83 So.2d 818, 821 (1955)." Great American Surplus Lines Ins. v. Dawson, 468 So.2d 87, 90 (Miss.1985); see also Selleck v. S.F. Cockrell Trucking, Inc., 517 So.2d 558, 560 (Miss.1987). In civil cases, this Court leaves the grant or denial of a mistrial or new trial founded upon juror misconduct to the sound discretion of the trial court. Atwood v. Lever, 274 So.2d 146, 147 (Miss.1973). "A mistrial or a new trial should not be granted on this ground in a civil case, unless the circumstances indicate some prejudice, wrongful intent, or unfairness." Id.; see also Middleton v. Evers, 515 So.2d 940 (Miss.1987); Great American Surplus Lines Ins. v. Dawson, 468 So.2d 87 (Miss.1985).

The only evidence in the case sub judice of what we could classify as attempted improper contact with a juror is a telephone call by a person or persons unknown received by the husband of a juror on the third day of trial. The juror reported the incident to the trial court and indicated that the attempted contact would have no effect on her service. The trial court allowed the juror to remain on the jury. The trial court also became aware of rumors concerning jury tampering of another juror, but after a thorough investigation, the trial court concluded that the rumors were unfounded. After careful consideration, we find that neither of these instances, nor their circumstances, "indicate some prejudice, wrongful intent, or unfairness" which would require reversal and new trial based on jury tampering.

In sum, we conclude that the trial court did not err in denying DeLaughter's Motion for a New Trial as to this assignment of error.

III.

DeLaughter next argues that the trial court erred by refusing three (3) jury instructions concerning the failure of the Hospital to maintain accurate and detailed medical records as required to be kept by every hospital on its patients. Miss.Code Ann. Sec. 41-9-63 (1972), and Sec. 41-9-69 (Supp.1990). The patient's hospital record, an integral component in any malpractice action against the hospital, contains information impossible to adequately reconstruct from memory. In this case, however, a reconstructed medical record was presented.

The evidence in this case shows that the Hospital refused to release Ms. Lambert's medical records to her family without proper authorization. On March 5, 1985, after the death of Ms. Lambert, the Director of Nurses at Lawrence County Hospital instructed the records custodian to lock up Ms. Lambert's record so that the family could not get them. When the records custodian attempted to comply with the instructions, she discovered that Ms. Lambert's hospital records were missing.

The records had last been seen in the Hospital two or three days prior to March 5, 1985, sitting in Dr. Pace's box awaiting dictation of Ms. Lambert's discharge summary. Upon discovery that the chart was missing, the Hospital set about reconstructing the file by gathering copies of items from the various medical departments within the Hospital. When reconstructed, the chart was incomplete, lacking the medical history or physical assessment taken by Dr. Collins on Ms. Lambert's admission to the Hospital on February 2, and the "nurses' progress notes" compiled during Ms. Lambert's hospitalization from February 2 through the morning of February 4 when Ms. Lambert was transferred to St. Dominic Hospital. One of the "nurses' progress notes" contained the ICU nurse's observations of Ms. Lambert from 10:00 p.m. on February 3 until 1:30 a.m. on February 4.

This issue concerns what the jury was entitled to hear and what instruction should have been given regarding the reconstructed medical records. The jury was entitled to be told the original hospital record would not be produced in court, as that was a relevant fact. The hospital had the duty to give an adequate explanation for the absence of the original hospital record. Therefore, the jury was entitled to be told why the original hospital record was missing, also a relevant fact.

As with any other evidence, the explanation for the original record's absence may be fully satisfying either that it was lost through no fault of the hospital, that the hospital deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue. For example, where the evidence is positive that the hospital had been destroyed by fire, such circumstance would adequately account for the loss of the original medical record without fault attributable to the hospital, and there would be no reason for the jury to be instructed on a presumption or inference arising from the loss.

On the other hand, where the evidence is positive that the hospital deliberately destroyed the original medical record Thus, where the evidence regarding the missing original medical records is such that the jury is entitled to an instruction, the instruction should require the jury to first determine whether reasonable explanation for the loss of the missing original medical record has been presented by the hospital. Should the jury determine from the explanation provided that the loss of the original medical record was not in any way attributable to the deliberate or negligent actions of the hospital, the jury could not infer that the missing original...