Erby v. North Mississippi Medical Center

• Decision Date: 30 March 1995
• Docket Number: No. 91-CA-00920-SCT,91-CA-00920-SCT
• Citation: 654 So.2d 495
• Parties: Linder ERBY v. NORTH MISSISSIPPI MEDICAL CENTER.
• Court: Mississippi Supreme Court

Page 495

654 So.2d 495

43 A.L.R.5th 811

Linder ERBY v. NORTH MISSISSIPPI MEDICAL CENTER.

No. 91-CA-00920-SCT.

Supreme Court of Mississippi.

March 30, 1995.

Dorothy Winston-Colom, Wilbur O. Colom, Colom & Colom, Columbus, for appellant.

L.F. Sams, Jr., John G. Wheeler, Mitchell McNutt Threadgill Smith & Sams, Firm, Tupelo, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the Court:

On August 26, 1987, J.C. Cannon was admitted to North Mississippi Medical Center by Dr. John W. Cox for further evaluation of chronic renal failure. Cannon had a history of "insulin dependent diabetes mellitus" of over thirty (30) years duration. Following a surgical procedure for insertion of an AV Fistula and a catheter for kidney dialysis purposes, Cannon became disoriented and comatose. On September 3, 1987, Cannon died of "cerebral vascular accident," "diabetes," and "chronic renal failure."

Linder Cannon Erby, Cannon's daughter, filed a medical negligence suit against certain physicians, unknown nurses and North Mississippi Medical Center. Summary judgment was granted in favor of the nurses and North Mississippi Medical Center.

Aggrieved, Linder Cannon Erby, hereinafter "Erby," appeals to this Court from a summary judgment entered against her by the Circuit Court of Lee County in favor of North Mississippi Medical Center, hereinafter "NMMC," and assigns as error the following:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING NMMC'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE EXISTED GENUINE ISSUES OF MATERIAL FACT AND NMMC WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING NMMC'S MOTION FOR A PROTECTIVE ORDER.

This Court is called upon to determine whether Erby produced sufficiently significant and probative expert medical testimony establishing that the failure of the nursing staff to properly monitor Cannon's level of blood sugar caused or contribute to Cannon's death.

The medical proof was sufficiently significant and probative with respect to a deviation by the nursing staff from the usual and accepted standard of care. The affidavit of Charlene Byrd, Erby's expert nurse, established that the failure to monitor Cannon's blood sugar following his surgery was a major deviation from the accepted standard of care of nursing. The report of Dr. Michael H. Koch, Erby's medical expert, although replete with references to deviations by the attending physicians from accepted standards of care, also indicated that Cannon needed "extremely close nursing care." Dr. Koch specifically referred to the lack of monitoring of the blood sugar level as a deviation from the acceptable standards of care. Erby's affidavit states that despite her numerous complaints to nurses, post surgery, that she was concerned about Cannon's blood sugar, no blood sugar testing was performed.

Erby's Supplemental Response exhibited the death certificate and the medical records of Cannon, which showed cause of death as cerebral vascular accident due to, or as a consequence of, diabetes. The deposition of Dr. Wooldridge revealed that a standing hospital order existed for nurses to monitor and test blood sugar level. Dr. Hamilton's deposition indicated that a diabetic coma was one of the two possible causes of Cannon's death.

This Court's recent case, Palmer v. Anderson Infirmary Benevolent Association DBA Jeff Anderson Regional Medical Center, No. 91-CA-00654, --- So.2d ---- (Miss. Feb. 23, 1995), favors reversal of this case on the ground that summary judgment was inappropriate. Erby has presented factors much stronger than those presented in Palmer, where the single violation of a minimum standard operating rule of Mississippi hospitals was held to establish a breach of duty and causal connection sufficient to avoid summary judgment.

There is clearly a disputed issue of material fact as to the cause of Cannon's death and Erby established sufficient significant and probative proof of proximate causation to avoid summary judgment. Also, the trial court abused its judicial discretion in sustaining NMMC's motion for a protective order, closing the record on their motion for summary judgment. We must reverse and remand.

STATEMENT OF FACTS

On August 26, 1987, J.C. Cannon, the 62-year-old father of Linder Cannon Erby, was admitted to NMMC by Dr. John W. Cox for further evaluation of chronic renal failure. Cannon had a previous history of "insulin dependent diabetes mellitus" of over thirty (30) years duration.

During his stay as an inpatient at NMMC, Cannon was diagnosed, treated, and cared for by several independent physicians, including the defendant/physicians named in Erby's Complaint. Various tests, procedures, and diagnostic techniques were ordered for Cannon. Dr. Cox ordered Cannon's insulin on admission and verbally ordered that the insulin be held in abeyance pending testing and other diagnostic procedures, giving such orders each day for that day only.

On August 29, 1987, following a surgical procedure performed under local anesthesia for insertion of an AV Fistula and a catheter for kidney dialysis purposes, Cannon became disoriented and comatose.

On September 3, 1987, Cannon died. The Certificate of Death reflects the following cause(s) of death: "Cerebral vascular accident", "diabetes", and "chronic renal failure." An autopsy to pinpoint the exact cause of death was never performed.

According to Cannon's hospital records, the admitting diagnosis was "chronic renal failure." Listed under "secondary diagnosis and/or complications" was the following: "DM" (diabetes mellitus) and "diffuse cerebral insult of undetermined etiology."

On August 25, 1989, Cannon's daughter, Erby, commenced an action for medical negligence by filing suit against NMMC and four physicians, namely: Dr. John W. Cox, Dr. Thomas D. Wooldridge, Dr. Jimmy L. Hamilton, and Dr. James M. Cooper. Erby alleged that these defendants negligently and carelessly treated, cared for and performed surgery upon her father. The claim against NMMC was based on the theory that the nurses who failed to monitor Cannon's blood sugar were acting as agents, servants or employees of NMMC and that they failed to exercise the standard of care required of hospital personnel toward their patients.

NMMC filed its Separate Answer and Defenses to Erby's Complaint on March 9, 1990. It denied any professional negligence by act or omission on the part of its nursing staff and any causal connection between its care and treatment of Cannon and his death.

On December 21, 1990, NMMC filed a motion for summary judgment on the basis that Erby had an inadequate evidentiary foundation to sustain her claim against NMMC. On April 5, 1991, Erby filed her response in opposition and denied the allegations of NMMC's motion. In support of her response in opposition, Erby offered her own affidavit, the expert witness report of Dr. Koch, the unexecuted affidavit of Charlene Byrd, R.N., and excerpts from the deposition of Dr. Wooldridge. Byrd's original executed affidavit had been lost in the mail. On April 25, 1991, Erby filed an original, executed affidavit of Charlene Byrd with an attached resume' of Byrd's qualifications.

On May 2, 1991, the trial court heard arguments of counsel in support of and in response to NMMC's motion for summary judgment. Prior to the hearing, counsel for NMMC agreed to allow the deposition transcripts of the defendant/physicians to be filed as a part of the record.

On May 24, 1991, Erby filed a Supplemental Response Opposing the Motion for Summary Judgment and attaching thereto the certificate of death of Cannon, the NMMC medical records of Cannon, the deposition of Dr. Thomas D. Wooldridge, the deposition of Dr. John W. Cox, and the deposition of Dr. James Cooper. In addition, Erby requested leave of court to submit additional affidavits and depositions into the record in support of a newly discovered claim of negligence against NMMC allegedly arising out of conduct of a nurse anesthetist whom Erby thought to be an employee of NMMC.

On June 5, 1991, NMMC objected to Erby's attempt to open the record indefinitely for supplemental affidavits and depositions in support of a previously unidentified claim.

On June 13, 1991, NMMC filed a motion for protective order seeking protection from the noticed depositions to be taken by Erby in support of her newly discovered claim.

On July 16, 1991, the court entered an order sustaining NMMC's motion for protective order, thereby staying the subject depositions until the court ruled on NMMC's outstanding motion for summary judgment.

Finally, on August 22, 1991, the trial judge entered an order granting summary judgment in favor of NMMC. The court concluded "that there is no genuine issue as to any material fact respecting [Erby's] claims against NMMC and NMMC is entitled to judgment as a matter of law." The court further held "there is no just reason for delay of a final judgment being entered in this cause pursuant to the provisions of Rule 54(b) of the Mississippi Rules of Civil Procedure."

DISCUSSION

This Court must determine whether Erby created a triable issue of material fact regarding her claim that NMMC nurses deviated from the applicable standard of care in failing to monitor Cannon's blood sugar on August 29, 1987, from 11:00 a.m. until 8:15 p.m. Also at issue is whether Erby produced sufficient competent evidence indicating that failure of NMMC nurses proximately caused or contributed to the death of her father. Proximate causation is an essential ingredient of a claim of medical negligence. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990).

The Standard for Summary Judgment

Rule 56(c) of the Miss.R.Civ.P. (1982) permits summary judgment on claims where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The rule provides, inter alia, that summary judgment shall be...