Drummond v. Buckley, 90-CA-1279
| Citation | 627 So.2d 264 |
| Decision Date | 02 September 1993 |
| Docket Number | No. 90-CA-1279,90-CA-1279 |
| Parties | M.L. DRUMMOND and Sue Drummond v. Richard E. BUCKLEY, M.D. |
| Court | United States State Supreme Court of Mississippi |
Charles M. Merkel, John H. Cocke, Merkel & Cocke, Clarksdale, for appellants.
Paul J. Delcambre Jr., Aultman Tyner McNeese & Ruffin, Gulfport, for appellee.
Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.
BANKS, Justice, for the court:
This is a malpractice case in which the question of negligence vel non turns upon whether the patient or the physician is to be believed concerning a conversation between the two. There is also a close question as to whether, regardless of which version is believed, any harm was caused by the physician's alleged inaction. Because we find that issues of material fact are left in dispute, we reverse the grant of summary judgment.
I
On March 4, 1985, appellant, M.L. Drummond, had surgery performed on his lower back to correct a herniated disc problem. The surgery was performed at Memorial Hospital in Gulfport by Dr. Harry Danielson. Dr. Danielson left on a trip to California immediately following this surgery. In Dr. Danielson's absence, Dr. Richard Buckley attended to Drummond until his release from the hospital on March 10, 1985.
Drummond called Dr. Buckley on the morning of March 13, 1985, complaining of pain and swelling in the area of the wound, drainage from the wound, and a fever the night before. He informed Buckley that he had an appointment to see the hospital administrator at Memorial Hospital that day, and was told to meet Dr. Buckley in the emergency room of Memorial Hospital when he came to see the hospital administrator. Drummond was seen in the Memorial Hospital Emergency Room by Dr. Buckley at approximately 11:40 that morning. Dr. Buckley found Drummond's surgical wound to be red, tender, and swollen and concluded that the wound was infected. Buckley says he told Drummond that he should enter the hospital so that the infection could be properly treated. According to Dr. Buckley, proper care would have included taking a culture of the drainage from the wound so that the precise nature of the infection and the appropriate antibiotic could be determined. Taking a culture would have required that the wound be opened. Therefore, claims Dr. Buckley, a culture could not have been performed unless the patient entered the hospital. Dr. Buckley said Drummond responded as follows:
[H]e (Mr. Drummond) told me that he had an appointment to see the administrator, that he did not have time to come into the hospital at this time, that he would see about it when he got his business with the administrator taken care of. He commented that he might come back that afternoon after he had seen the administrator and he told me that he surely would see Dr. Danielson the next day.
Drummond testified he does not remember all of the details of that conversation with Dr. Buckley, because he was scared at the time. He said, though, that had he been told to enter the hospital, he probably would have done it, because he was in a lot of pain at the time. His testimony was as follows:
Q. Well, do you remember him asking or talking to you or asking you if you wanted to be admitted, telling you that he wanted to admit you to the hospital?
A. No, sir.
Q. Are you saying he didn't tell you that or are you saying you don't remember?
A. I am saying that he didn't, I don't believe. If he did, I don't recall it, sir, because at that point I was scared.
Q. If he had told you to be admitted?
A. I think I would have been admitted.
Q. You think you would have?
A. Yes, because I was in a lot of pain, sir.
The Memorial Hospital Emergency Room records from that day contain an entry from Dr. Buckley regarding his visit with Drummond. The records indicate that Drummond had had recent back surgery and came to the emergency room complaining of drainage of the surgical wound, swelling in the area of the surgery, and increased pain. The only recorded recommendations of Dr. Buckley are that the patient should engage in Phisohex soaks, take the antibiotic Ampicillin, and see Dr. Danielson the next day. 1 Dr. Buckley explains the lack of an entry regarding recommended hospitalization as follows:
My normal practice is to write down what is done, which is what the patient allowed me to do. Had I written in there, recommended admission and he refuses, it would certainly have tainted his medical record and that is not my normal practice to write AMA 2 or things of that nature on the chart.... As for when he went to see another physician in the emergency room again and they saw he had an AMA, it would certainly have an adverse effect on his medical care.
Dr. Buckley testified that after Drummond left to see the hospital administrator, he communicated to Dr. Danielson that he had just seen Drummond in the emergency room and that Drummond needed to be hospitalized to take care of an infection that he had developed. Buckley said he spoke to Dr. Danielson later that afternoon, and was told that Dr. Danielson had already made that same recommendation to Drummond's wife, Mrs. Sue Drummond, earlier that day.
Dr. Danielson testified that after he returned to town on the 13th, he was informed that Drummond had arrived at the emergency room earlier that day with a wound infection. He says he then called the Drummond household. He said Mrs. Drummond answered the phone and informed him that Drummond was in the bed. He says he then told her that her husband needed to come to the emergency room immediately. Dr. Danielson had the following to say about the remainder of the conversation:
[S]he said, well, she didn't think she could get him to come to the hospital. So, I said it's imperative, it's important, it's essential and mandatory that I see him now because I was concerned about this wound. So she said, well, I don't think he'll come in to go to the hospital. I said, would you go tell him what I just said then, please? Tell him it is urgent. It is really important that I see him now. So I waited and she came back to the phone and she said, he won't go. He'll see you tomorrow. He has an appointment. He'll see you tomorrow and I informed her that if anything happened, if his temp got higher or anything like that to be sure and call me and if I were not available immediately to go to the hospital and they would get ahold of me or somebody on call....
Mrs. Drummond denies ever having this conversation with Dr. Danielson. She said she did not speak at all with Dr. Danielson on March 13, 1985.
During the early morning hours of March 14, 1985, Drummond's condition worsened. Mrs. Drummond noted that her husband's breathing had become really shallow and that he was in a great deal of pain. She called Dr. Danielson's office early that morning. She was told that Dr. Danielson was in surgery at Gulf Coast Community Hospital, but he would be told to meet the Drummonds at the Memorial Hospital emergency room as soon as his surgery ended. Soon thereafter, Drummond was rushed by ambulance to the Memorial Hospital emergency room.
Drummond was readmitted to the hospital on the morning of March 14, 1985. Over the next several months, he received extensive
inpatient and outpatient treatment for his infection. A significant portion of his inpatient time was spent in the intensive care unit. Drummond contended that he incurred very large medical bills for the treatment necessitated by his infection.
II
In March 1987, Mr. and Mrs. M.L. Drummond filed suit in the Harrison County Circuit Court against Memorial Hospital at Gulfport, Drs. Buckley and Danielson. They alleged various acts of negligence committed by the defendants before, during, and after the surgery Drummond underwent on March 4, 1985, at Memorial Hospital.
Shortly before trial in this matter, the one expert witness identified by the Drummonds was disqualified by the circuit court. Investigation by defendants into the background of the proffered expert witness had shown that the witness's experience and credentials were highly suspect, and the witness refused to cooperate with discovery to clear up the numerous questions that had been raised regarding his credentials. A hearing was held in the Harrison County Circuit Court on March 26, 1990, to consider motions for summary judgment by each of the defendants and a motion for a continuance by the plaintiffs so, that they could retain another expert witness. The circuit court denied the plaintiffs' motion for continuance on the stated rationale that:
In the normal setting, the objection to the expert's qualifications in this case would come about during voir dire examination at trial. But for the request to disqualify preliminary to trial, plaintiffs' counsel would have been in a situation at trial of not being able to go forward once Dr. Gardner (Plaintiffs' proffered expert witness) was disqualified. Given this situation, it seems unfair to this Court to grant a continuance to Plaintiffs so that the case can be restructured simply because the Defense asserted its right prior to trial.
The circuit court granted summary judgment to each of the defendants on the ground that plaintiffs had no way of proving those portions of their malpractice case requiring expert testimony. Plaintiffs appealed to this Court. They do not contest the circuit court's disqualification of their expert witness or its refusal to grant a continuance. They raise only the issue for review of whether, despite their lack of an expert witness for trial, the circuit court erred in entering summary judgment in favor of Dr. Buckley on Drummond's claim that Dr. Buckley was negligent in neither hospitalizing Drummond nor culturing the wound of Drummond on March 13, 1985, when Drummond presented himself to the emergency room for treatment of his wound infection.
III
As a general matter of Mississippi law, summary judgments should only be issued where the moving party successfully...
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