Gardner v. Jackson
| Decision Date | 13 September 2022 |
| Docket Number | 2020-CA-01313-COA |
| Parties | TAMMIE GARDNER APPELLANT v. WILLIAM DOTIE JACKSON, M.D., AND MISSISSIPPI PREMIER PLASTIC SURGERY PLLC APPELLEES |
| Court | Mississippi Court of Appeals |
BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
¶1. On March 12, 2014, Dr. William Dotie Jackson performed a breast augmentation and mastopexy operation on Tammie Gardner. After the surgery, both of Gardner's breasts became infected and ultimately had to be removed. Gardner sued Dr. Jackson and Mississippi Premier Plastic Surgery PLLC for negligence and gross negligence. During the trial Gardner called Dr. Jackson and an expert witness to testify. At the end of Gardner's case-in-chief, an attorney representing Dr. Jackson and Mississippi Premier Plastic Surgery PLLC moved for a directed verdict, arguing that Gardner had failed to provide an expert witness who articulated the nationally accepted standard of care. The trial court granted the motion for a directed verdict in favor of both defendants. Gardner appealed, arguing that the evidence presented at trial established the nationally accepted standard of care and that, therefore, the trial court erred in granting Dr. Jackson's motion for a directed verdict. After reviewing the record and briefs, we affirm.
¶2. On May 26, 2006, Gardner underwent a breast reduction, which Dr. Mark S. Elliot performed at Plastic Surgery of Meridian. Dr. Elliot used a superior pedicle[1] in his operation. On June 15, 2012, Gardner underwent an abdominoplasty and breast augmentation, which Dr. Elliot also performed. No complications arose from either surgery.
¶3. On February 6, 2014, Gardner visited Dr. Jackson at Mississippi Premier Plastic Surgery. Gardner complained of pain in both of her breasts, asymmetry of the breasts, and hardening of her implants. Dr. Jackson recommended a breast augmentation and mastopexy.[2]In his pre-operative notes, Dr Jackson wrote that he would use an inferior pedicle in his procedure. That same day, Dr. Jackson's office contacted Plastic Surgery of Meridian and requested Dr. Elliot's medical file on Gardner. While reviewing the file, Dr. Jackson discovered that Dr. Elliot had used a superior pedicle. Dr. Jackson read Dr. Elliot's notes, which stated, "An area of the areola was de-epithelialized of skin, as well as the superior and medial pedicle skin ...." Dr. Jackson also stated that "[a]ccording to further reading in the op note, the breast tissue was removed inferiorly, laterally, and superiorly having a superiorly medially based dermoglandular pedicle ...."
¶4. According to Dr. Jackson, upon learning that information, he made a mental note to perform a superior pedicle during Gardner's surgery. Dr. Jackson never changed his initial pre-operative notes that stated "inferior pedicle."
¶5. On March 12, 2014, Dr. Jackson performed a breast augmentation and mastopexy on Gardner. On March 17, 2014, Gardner returned to Dr. Jackson's office for her first followup appointment. At that follow-up visit, Gardner told Dr. Jackson that she had a low-grade fever the night before, but after she took Tylenol, her fever subsided. Dr. Jackson noted that Gardner's breasts were swollen, Gardner's incisions were intact, and there was no drainage from the breasts. Additionally, no signs of infection were present.
¶6. March 24, 2014, Gardner returned for her next follow-up visit. Gardner told Dr. Jackson that she had a "blood blister" next to her right nipple. Dr. Jackson noted that Gardner had
¶7. Gardner had another appointment scheduled for March 27, 2014. However, Gardner did not come to the appointment. On March 28, 2014, Gardner left a voicemail at Dr. Jackson's office, complaining of a fever and "pus-like" drainage from her left nipple. A text message summarizing the voicemail was sent to Dr. Jackson. He contacted Gardner and told her, "I need to see you." However, Gardner did not want to travel from Meridian before the weekend, so she asked Dr. Jackson to write her a prescription for antibiotics. Dr. Jackson wrote the prescription and gave Gardner his contact information. He instructed her to come to his office on Monday.
¶8. On that Monday, Gardner arrived at Dr. Jackson's office. She was "very ill." When Dr. Jackson removed Gardner's dressing bra, he noticed pus and "dishwater"-like fluid coming from Gardner's left breast. Dr. Jackson rushed Gardner to surgery, where he operated on her left breast in an attempt to save her breast from requiring removal. Dr. Jackson, nevertheless, had to remove Gardner's left breast in a subsequent operation. After the removal of the left breast, Gardner's right breast started to show signs of infection, and after an additional surgery, Dr. Jackson removed Gardner's right breast as well.
¶9. On March 11, 2016, Gardner sued Dr. Jackson and Mississippi Premier Plastic Surgery PLLC for negligence and gross negligence. Specifically, she alleged that "Dr. Jackson . . . failed to perform the breast augmentation and mastopexy properly." A trial was held on October 5-6, 2020. At trial, Gardner argued that the nationally accepted standard of care for a breast augmentation and mastopexy was to use the same pedicle approach as previous surgeons. In this case, Gardner argued, that meant Dr. Jackson should have used a superior pedicle because Dr. Elliot had used a superior pedicle. Gardner alleged that Dr. Jackson incorrectly used an inferior pedicle, which resulted in a loss of blood flow to her breasts and the eventual removal of both breasts.
¶10. To prove this standard of care, Gardner called Dr. Jackson as an adverse witness[3] and Dr. Carey J. Nease as an expert witness. Dr. Jackson's testimony was extensive, but he never plainly stated the nationally accepted standard of care for a breast augmentation and mastopexy. Dr. Jackson testified that "had [he] known [Gardner] had a prior superior pedicle, that would have been [his] plan" from the start. Dr. Jackson agreed that in his deposition,[4] he had stated that "it's Plastic Surgery 101 . . . to maintain blood supply to the nipple-areola complex." Dr. Jackson also agreed he had stated that "any plastic surgeon would know that."
¶11. Dr. Nease testified as Gardner's expert witness at trial. Dr. Nease stated that "[t]he decision to make about which pedicle [a surgeon is] going to utilize in a patient like Mrs. Gardner . . . [is] critically important" to preserve blood flow to the breast tissue. Dr. Nease also testified that determining which pedicle to use on a patient, based on prior breast surgeries, is "the most important thing you have." Dr. Nease explained that "pedicle planning is critically important," and not compromising blood flow to the breast is "one of the most basic things you teach."
¶12. Dr. Nease also testified about the risks of failing to preserve the pedicle: Dr. Nease agreed that "determining what pedicle was used previously is . . . the most important thing to determine in keeping blood supply on." When reviewing photographs of Gardner during her follow-up appointments, Dr. Nease described a photo showing "redness on the outside" of the nipple and "darkness" on Gardner's breast as a "potential problem."
¶13. Gardner's attorney elicited the following testimony regarding a pedicle selection:
Dr. Nease also agreed that Dr. Jackson's "approach caused the ultimate tissue necrosis" in Gardner's breasts, but Dr. Nease was never asked to articulate the appropriate standard of care or determine if that standard of care was actually breached.
¶14. On cross-examination, Dr. Nease was asked, Dr. Nease responded, "It's possible." Dr. Nease was also asked if he agreed "there's always a risk for infection" with every surgery. Dr. Nease responded, "Yes." Finally, Dr. Nease was asked the following: "[P]eople still get infections after surgery. . . [a]nd that doesn't necessarily mean the doctor did anything wrong, does it?" Dr. Nease replied, "Not necessarily."
¶15. At the end of Gardner's case-in-chief, Dr. Jackson and Mississippi Premier Plastic Surgery PLLC moved for a directed verdict. Their attorney argued that Gardner had failed to provide an expert witness who "identif[ied] and articulate[d] the requisite standard of care that was not complied with" or that the alleged non-compliance "was the proximate cause or proximate contributing cause" of Gardner's alleged injuries. Gardner argued that her expert did not have to use the "magic words" "standard of care" to make a prima facie case. The trial...
To continue reading
Request your trial