Eckman v. Moore

• Decision Date: 25 March 2004
• Docket Number: No. 2002-CA-00669-SCT.,2002-CA-00669-SCT.
• Parties: Walter W. ECKMAN, M.D. and Aurora Spine Centers-Mississippi, Inc. v. Linda Michelle MOORE, Individually, and for and on Behalf of the Wrongful Death Beneficiaries of Jason Taylor Moore, Deceased on Motion for Rehearing.
• Court: Mississippi Supreme Court

876 So.2d 975

Walter W. ECKMAN, M.D. and Aurora Spine Centers-Mississippi, Inc. v. Linda Michelle MOORE, Individually, and for and on Behalf of the Wrongful Death Beneficiaries of Jason Taylor Moore, Deceased on Motion for Rehearing.

No. 2002-CA-00669-SCT.

Supreme Court of Mississippi.

March 25, 2004.

Robert K. Upchurch, Tupelo, David W. Upchurch, Josiah Dennis Coleman, attorneys for appellants.

Bobby L. Dallas, Brad Sessums, Walter C. Morrison, IV, Jackson, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.¹

STATEMENT OF THE CASE

¶ 2. This is a wrongful death case involving the medical treatment provided to Jason Taylor Moore (Taylor) by Dr. Walter W. Eckman (Dr. Eckman), the Aurora Spine Centers-Mississippi, Inc. (Aurora), and North Mississippi Medical Center (NMMC).

¶ 3. On the evening of February 20, 1999, Taylor fell in a movie theater, sustaining a head injury in the fall. He then went to NMMC for treatment by the on-call physician, Dr. Eckman. On March 20, 2000, Linda Michelle Moore (Michelle), Taylor's wife, filed suit against Dr. Eckman, Aurora and NMMC both individually and as the conservator of the estate of Taylor in the Circuit Court of Lee County. The complaint alleged personal injury to Taylor and Michelle in connection to the treatment provided to Taylor. On May 19, 2000, Taylor died; thus on August 24, 2000, an amended complaint was filed on behalf of Michelle and the wrongful death beneficiaries of Taylor for alleged negligence resulting in the death of Taylor.

¶ 4. On February 12-26, 2002, a trial was conducted, and the jury returned a verdict in favor of Michelle and the wrongful death beneficiaries of Taylor for $5 million. The jury determined that Dr. Eckman and Aurora were 60% liable and NMMC was 40% liable. On March 4, 2002, a final judgment was entered by the trial court. Dr. Eckman and Aurora filed a motion for judgment notwithstanding the verdict, or, in the alternative, a motion for new trial. The trial court denied the motion without a hearing. Dr. Eckman and Aurora timely filed their appeal to this Court. Finding reversible error, we reverse the judgment of the Circuit Court of Lee County and remand this case for a new trial.

FACTS

¶ 5. On February 20, 1999, while at the movies, Taylor went to the bathroom and apparently slipped or fell and struck his head. He wandered out of the theater and drove away in his car. Michelle, Taylor's wife, could not find him and called him on his cell phone. Taylor seemed confused, but she eventually directed Taylor to the emergency room. Dr. Peters, an emergency room doctor, ordered a computer tomography, a.k.a. CT or cat scan, to be performed on Taylor. The CT scan showed some bleeding in the frontal lobe. Neurological checks and vital signs were ordered every two hours.

¶ 6. At approximately 2:00 p.m. on February 21, 1999, Taylor began to complain of nausea and headaches even though his pain medication had been increased. Dr. Carl Hauser, Michelle's expert witness, testified that both these complaints along with increased blood pressure were significant. Taylor had been diagnosed with hypertension a few years before and took medication for the condition. At 6:00 p.m. his blood pressure was 150/98, and at 170/110 two hours later. The nurses informed Dr. Eckman about the increased blood pressure, and Dr. Eckman directed the nurses to give Taylor his blood pressure medicine.

¶ 7. Taylor was given Monopril, his usual blood pressure medicine, just before 7:00 p.m. Instead of lowering his blood pressure, the medical records indicated that his blood pressure increased. By 8 p.m. Taylor's blood pressure was 170/110, and two hours later it was 172/124. The records indicated that around 10:30 p.m. the nurses notified Dr. Eckman that Taylor had what he described as the worst headache that he had ever had and of Taylor's increased blood pressure. Dr. Eckman ordered that Talwin and Codeine be given alternately.

¶ 8. Dr. Eckman stated that he requested that the emergency room physician admit Taylor to the hospital about 2:00 a.m. and to make a written request for the neurological checks on him. Dr. Eckman then saw Taylor about 7:00 or 8:00 a.m that same morning. During the visit Dr. Eckman collected Taylor's medical history, performed a general physical exam, and a detailed neurological exam. Other than suffering from a headache, Taylor appeared to be in normal condition. The next time that Dr. Eckman saw Taylor was after his cardiac arrest. Prior to the arrest, Dr. Eckman had a few telephone conversations with the hospital staff about Taylor's condition. Dr. Eckman stated that prior to the arrest, he had not heard from the nursing staff since about 10:00 to 10:30 p.m. the previous night.

¶ 9. On cross-examination Dr. Hauser stated that from Taylor's initial admission at 11:00 p.m. Saturday night to 10:00 p.m. Sunday, there was no decline in his Glasgow Coma Score or his neurological status. A normal neurological check includes waking a patient from sleep and checking their level of consciousness, pupils, speech, orientation to person, place and time, and strength. Dr. Hauser opined that the nursing staff performed appropriate neurological assessments from Taylor's presentation to the emergency room at 10:30 p.m. on February 20 through approximately 10:30 p.m. on February 21. Dr. Hauser stated that there were no documented neurological checks performed by the nursing staff between 10:00 p.m. and 6:00 a.m. (February 21-22) that sufficiently complied with the standard of care for nurses. Dr. Hauser stated that had the neurological checks been adequately performed by the nursing staff then Taylor's changes would have been discovered, the doctor could have been called and provided surgical care, the arrest and brain damage would have been avoided, and his death would have been prevented as well. The hematoma accumulated over a 30-hour period.

¶ 10. When Dr. Eckman was contacted by the staff, he gave no orders for surgery but, ordered a CT scan. Around noon, an angiogram was ordered, and it indicated that the blood supply to the brain was intact. An operation was subsequently performed on February 23, 1999.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY DENYING THE SUPERSEDING CAUSE JURY INSTRUCTION (D1-12) REQUESTED BY DR. ECKMAN.

¶ 11. It is well-established law that a defendant is entitled to have the jury instructed on his theory of the case. Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 23 (Miss.2002) (citing Higgins v. State, 725 So.2d 220, 223 (Miss.1998)). However, a court may refuse a jury instruction which "incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence." Id. This Court will not reverse the verdict of the jury if that jury was fully and fairly instructed by the other instructions. Id.

¶ 12. Dr. Eckman's proposed jury instruction on superseding cause, DI-12, read as follows:

A superseding cause is an independent and unforseen act by a third person which follows the Defendant's negligence, if any you should find, and which is the substantial factor in causing the injuries alleged by the Plaintiff. A superseding cause becomes the proximate cause for the Plaintiff's alleged injuries and the Defendant's negligence is a remote cause for which he is not liable. Thus, if you find from a preponderance of the evidence in this cause that Dr. Eckman was negligent in his care and treatment of Taylor Moore on February 21, 1999, but that an independent and unforseen act by a third person, namely the alleged failure of nursing personnel at the North Mississippi Medical Center to meet the standard of care with respect to the nursing care provided to Moore on February 21 and 22, 1999, followed Dr. Eckman's negligence, if any, and was a substantial factor in causing Mr. Moore's neurological injuries and subsequent death, then Dr. Eckman is not liable for the injuries proximately resulting from the superseding cause, and your verdict shall be for the Defendants, Dr. Eckman and Aurora Spine Centers-Mississippi, Inc.

Counsel for Michelle objected to this instruction stating that superseding cause was not at issue; therefore, the trial judge refused this instruction which properly stated the law of superseding cause. However, counsel for Dr. Eckman, responding for the record, stated:

MR. D. UPCHURCH: We would urge, certainly recognize the Court's ruling on that, but for the record would state that on behalf of Dr. Eckman, we think that is an appropriate instruction and, in particular given the testimony of Dr. Carl Hauser with regard to the alleged deviations from the standard of care from nursing personnel on — on the — on February 21, 1999, and into the early morning hours of February 22nd, 1999. And given the — the case that Dr. Hauser set out against the hospital we believe that would be a proper instruction.

(emphasis added).

¶ 13. Dr. Eckman argues that the superseding cause issue revolves around the neurological checks which were to be performed by the nursing personnel at NMMC. Dr. Eckman testified that when he admitted Taylor to the hospital, he ordered the nursing personnel to perform neurological checks on Taylor every two hours. Michelle's expert, Carl Hauser, M.D., testified that Dr. Eckman's order was appropriate, and Michelle's neurological expert, Horace Norell, M.D., agreed with Dr. Hauser's assessment. Michelle further put on proof that the nursing personnel at NMMC failed to perform appropriately those neurological checks on Taylor as ordered by Dr. Eckman.

¶ 14. Although Michelle offered evidence that the nursing personnel at NMMC was negligent in their treatment of her husband, Michelle contends that Dr. Eckman was negligent before, during and after any negligence by the nursing personnel. Michelle argues Dr. Eckman...