Fishboats, Inc. v. Welzbacher

• Decision Date: 21 April 1982
• Docket Number: No. 53051,53051
• Parties: FISHBOATS, INC. v. Henry Thomas WELZBACHER.
• Court: Mississippi Supreme Court

Page 710

413 So.2d 710

FISHBOATS, INC. v. Henry Thomas WELZBACHER.

No. 53051.

Supreme Court of Mississippi.

April 21, 1982.

Bryan, Nelson, Allen, Schroeder & Blackstrom, Vincent J. Castigliola, Jr., John A. Banahan, Pascagoula, for appellant.

Cumbest, Cumbest & Hunter, David O. McCormick, John L. Hunter, W. Harvey Barton, Pascagoula, for appellee.

Before SMITH, WALKER and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This appeal arises from the Circuit Court of Jackson County wherein Henry Thomas Welzbacher, plaintiff/appellee, instituted suit against Fishboats, Inc., defendant/appellant, for damages sustained due to injuries received while employed as a cook-fisherman aboard the Nuevo, a fishing vessel owned and operated by Fishboats, Inc. The basis of Welzbacher's claim stemmed from the Nuevo's failure to provide him with a reasonably safe place to perform his duties as well as failure of the ship's captain to transport Welzbacher to shore for medical attention following the accident. Welzbacher injured his knee on board the Nuevo, during rough seas, when he went on deck to obtain food from a styrofoam ice chest used to store perishable items prior to their cooking. Following this injury, the meniscus was removed from Welzbacher's knee. Complications subsequently developed and approximately one year later Welzbacher underwent surgery for a partial hip replacement. The jury returned a verdict in favor of Welzbacher and assessed his damages at $200,000. We affirm.

Henry Thomas Welzbacher was employed as a cook on board the vessel Nuevo, a 20-year-old snapper fishing boat. The Nuevo left port on or about December 29, 1978, piloted by Captain Al Krantze. Captain Krantze asserted the weather was not very bad. However, another crew member and Welzbacher testified there was serious question about whether or not to leave port. The weather forecast from Appalachicola to Biloxi, and from Biloxi to Morgan City, and out fifty miles, indicated a small-craft advisory was in effect from December 27 until December 31 with winds varying from fifteen to twenty-five knots and seas ranging from five to ten feet.

Krantze stated that after leaving port, the Nuevo anchored on the bay side of Petit Bois Island for the night and departed therefrom the following morning around seven or eight o'clock. George Edge, a crew member of the Nuevo, stated the Nuevo anchored behind Horn Island on December 27 and left the following morning. Welzbacher agreed the ship left port December 27 and anchored behind Horn Island, but, he asserted, it remained anchored at Horn Island for two days. Both Welzbacher and Edge agreed the injury occurred on December 30. However, according to Krantze and Welzbacher, the ship was running at the time of the accident, while Edge testified the ship was at anchor.

The Nuevo, apparently like most other fishing vessels, was not equipped with electrically-powered refrigeration. The ship was loaded with an average of 32,000 pounds of ice to preserve fish as well as perishable food to be consumed by the crew. To traverse from the galley to the hold where the perishable food was stored, it was necessary to go out on the open deck. For the cook's convenience, an ice chest was used to save the cook from making quite as many trips to the hold for food items. Welzbacher asserted the styrofoam ice chest used during the particular trip was located on the deck of the Nuevo as it had always been since he began working on the Nuevo.

Welzbacher's injury occurred when he went on deck to secure some chickens from the ice chest. When he removed the lid, the wind caught it and blew it into his face, causing him to fall to his knee. Although Captain Krantze did not actually see the fall, he looked back after hearing a noise and saw Welzbacher down on the deck with his knees in the air, holding the lid to the ice chest.

Welzbacher was transported to Galveston, Texas, where he was admitted to the U. S. Public Health Service Hospital on January 7, 1979. There was some testimony concerning the captain's failure to secure medical attention at Welzbacher's request.

Dr. Malcom Wall removed the meniscus from Welzbacher's injured knee, finding numerous signs of erosion on the articulus cartilage both at the femur and tibia as well as signs of degenerated meniscus with frayed edges, and evidence of a large tear in the meniscus that had probably lodged within the joint and caused the knee to lock. Dr. Wall opined the history given by Welzbacher concerning his accident could have produced this injury. Normal recovery from this type of surgery is five months. Welzbacher was started on physical therapy and subsequently discharged February 7, 1979, with an infection, and referred to Dr. Daniel Enger at Pascagoula, Mississippi, for post-surgery therapy.

On February 9, 1979, Welzbacher was treated by Dr. Horn at the Singing River Hospital in Pascagoula. Dr. Enger, an orthopedic surgeon, first saw Welzbacher on February 12, 1979. He was subsequently referred to the U. S. Public Health Hospital in New Orleans where he was admitted March 2, 1979, and diagnosed as having a staphyloccocal infection (staph) of the knee and thigh following surgery. He remained hospitalized until May 1, 1979.

Welzbacher entered the U. S. Public Health Hospital in New Orleans again on May 14, 1979, with pain and swelling in his knee. There was evidence of prior infection which extended into the thigh musculature. An anthrotomy was performed and Welzbacher was subsequently discharged on July 6, 1979. There was no evidence of any femoral neck fracture at this time.

Dr. Douglas Holford saw Welzbacher in November 1979 regarding fusion of his knee. Dr. Holford saw Welzbacher again in December 1979 concerning an increase in pain in his knee and hip. Welzbacher was again admitted to the U. S. Public Health Hospital in New Orleans in January 1980 for a femoral neck fracture. He related his hip cracked shortly after Christmas of 1979 when he stepped off a stair, putting too much weight on his leg. A bone scan revealed no blood had been getting to the head of the right femur, indicating the head was probably not viable. A partial hip replacement was performed. Welzbacher had surgery four times during 1979 and once in 1980 and spent more than 135 days in various hospitals.

All medical experts asserted Welzbacher would never be able to return to his duties as a seaman. However, Dr. Enger, who rated Welzbacher's disability at 100% loss of the use of the leg, asserted he could perform some type of employment and earn at least minimum wage.

The jury returned a verdict in favor of Welzbacher, assessing his damages at $200,000.

I. Did the trial court err in refusing to admit into evidence the complete hospital records of appellee?

Appellant's first proposition revolves around certain hospital records concerning an injury to appellee which occurred on December 23, 1978, just prior to the fishing expedition when appellee injured his knee. From the Singing River Hospital records, it is apparent appellee was admitted to the emergency room, apparently intoxicated, after having been found passed out, with a contusion to the lateral parietal area and to the superior portion of the left ear. He was admitted for observation for a possible cerebral concussion. However, he left the hospital before being seen by a doctor, against medical advice. Laboratory studies showed a blood alcohol content of .4%. Final diagnosis was listed as acute alcohol intoxication, probable cerebral concussion syndrome, mild.

Although there is really no dispute that this fall had anything to do with appellee's knee injury, appellant offered this evidence to show that appellee was more prone to fall following a cerebral concussion. Also, the evidence would have served for some impeachment value because appellee denied he was injured or hospitalized on this date. An objection to the admission of the records was sustained on medical privilege grounds as well as being irrelevant and immaterial to the lawsuit.

Communications between a patient and physician are privileged by Mississippi Code Annotated section 13-1-21 (Supp.1981). A waiver may occur at the instance of the patient or his personal representative following his death. A waiver of the privilege also occurs where a plaintiff in a personal injury suit voluntarily exhibits the injured portions of his body to the jury for inspection. In Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747 (1938), this Court stated:

Appellee says, however, that the court was in error in ordering the examination and that the testimony of the specialist should, therefore, be disregarded; that the order is not sustained by the holding of this court in Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686. In that case, at page 115 of 177 Miss., 170 So. 686, 688, the court quoted, with approval, as follows: "An examination of the cases will show that the courts have uniformly held that, where a plaintiff in a personal injury suit voluntarily exhibits the injured part of his body to the jury for inspection, the portion of his body so exhibited becomes an exhibit in the case, like any other object or thing introduced in evidence, and the opposite party has the right to make such inspection of it as will enable him to explain, criticize, or impeach its value as evidence, and to that end have it examined by experts." The other approved quotations in the opinion are to the same effect. That opinion was prepared after a long and most thorough consideration by the entire court, and we will not take it to pieces by technical refinement of argument in subsequent cases. (183 Miss. at 647-48, 179 So. at 749)

See also Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965); and Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686 (1936).

By exhibiting his knee to the jury, appellee waived any medical privilege as to that portion of his body....