Hall v. Hilbun

Decision Date27 February 1985
Docket NumberNo. 53784,53784
PartiesGlenn HALL, Husband of Terry O. Hall, Deceased v. Glyn R. HILBUN, M.D.
CourtMississippi Supreme Court

Alfred Lee Felder, McComb, for appellant.

Joe R. Colingo, Pascagoula, George F. Bloss, III, Gulfport, Bryant & Stennis, Pascagoula, Gulfport, for appellee.

EN BANC.

ROBERTSON, Justice, for the Court:

I.

This matter is before the Court on Petition for Rehearing presenting primarily the question whether we should, as a necessary incident to a just adjudication of the case at bar, refine and elaborate upon our law regarding (a) the standard of care applicable to physicians in medical malpractice cases and (b) the matter of how expert witnesses may be qualified in such litigation. We greatly expanded the old locality rule in King v. Murphy, 424 So.2d 547 (Miss.1982). Experience and reason suggest that further refinements are necessary and in the interest of justice, generally and in this case.

When this matter was before the Court on direct appeal, we determined that the judgment below in favor of the surgeon, Dr. Glyn R. Hilbun, rendered following the granting of a motion for a directed verdict, had been correctly entered, two justices dissenting and two justices concurring specially. That result was perceived as required under our old locality rule, pre-King variety, pursuant to which the plaintiff's offer of the expert testimony of two eminently qualified physicians from Cleveland, Ohio, had been excluded.

For the reasons set forth below, we now regard that our original decision was incorrect. The opinion formally released on November 9, 1983, is withdrawn and instead thereof the instant opinion is substituted. The judgment of the Circuit Court is vacated and this case is remanded for a new trial on all issues.

II.

Terry O. Hall was admitted to the Singing River Hospital in Jackson County, Mississippi, in the early morning hours of May 18, 1978, complaining of abdominal discomfort. Because he was of the opinion his patient had a surgical problem, Dr. R.D. Ward, her physician, requested Dr. Glyn R. Hilbun, a general surgeon, to enter the case for consultation. Examination suggested that the discomfort and illness were probably caused by an obstruction of the small bowel. Dr. Hilbun recommended an exploratory laporatomy. Consent being given, Dr. Hilbun performed the surgery about noon on May 20, 1978, with apparent success.

Following surgery Mrs. Hall was moved to a recovery room at 1:35 p.m., where Dr. Hilbun remained in attendance with her until about 2:50 p.m. At that time Mrs. Hall was alert and communicating with him. All vital signs were stable. Mrs. Hall was then moved to a private room where she expired some 14 hours later.

On May 19, 1980, Glenn Hall commenced this wrongful death action by the filing of his complaint (nee declaration) in the Circuit Court of Jackson County, Mississippi. Named as defendants were Glyn R. Hilbun, M.D., and the Singing River Hospital, its administrator and several then unknown nurses.

This action was called for trial on July 13, 1981. Prior to that time all defendants with the exception of Dr. Hilbun had been dismissed. 1 Not only was Dr. Hilbun the sole defendant at trial, he is the sole appellee here.

At trial Glenn Hall, plaintiff below and appellant here, described the fact of the surgery. He then testified that he remained with his wife in her hospital room from the time of her arrival from the recovery room at approximately 3:00 p.m. on May 20, 1978, until she ultimately expired at approximately 5:00 a.m. on the morning of May 21. Hall stated that his wife complained of pain at about 9:00 p.m. and was given morphine for relief, after which she fell asleep. Thereafter, Hall observed that his wife had difficulty in breathing which he reported to the nurses. He inquired if something was wrong and was told his wife was all right and that such breathing was not unusual following surgery. The labored breathing then subsided for an hour or more. Later, Mrs. Hall awakened and again complained of pain in her abdomen and requested a sedative, which was administered following which she fell asleep. Mrs. Hall experienced further difficulty in breathing, and her husband reported this, too. Again, a nurse told Hall that such was normal, that patients sometimes make a lot of noise after surgery.

After the nurse left the following occurred, according to Hall.

[A]t this time I followed her [the nurse] into the hall and walked in the hall a minute. Then I walked back into the room, and walked back out in the hall. Then I walked into the room again and I walked over to my wife and put my hand on her arm because she had stopped making that noise. Then I bent over and flipped the light on and got closer to her where I could see her, and it looked like she was having a real hard problem breathing and she was turning pale or a bluish color. And I went to screaming.

Dr. Hilbun was called and came to the hospital immediately only to find his patient had expired. The cause of the death of Terry O. Hall was subsequently determined to be adult respiratory distress syndrome (cardio-respiratory failure).

Dr. Hilbun was called as an adverse witness and gave testimony largely in accord with that above. He stated Dr. Ward requested consultation concerning Mrs. Hall's illness. He related that his diagnosis of a blocked intestine was correct, as revealed by the surgery, and that the surgery was a success. He testified that a surgeon operating in the Singing River Hospital was assisted by the nurses in the surgical ward who were on duty at the time, and that he had no option in their selection, had no way of knowing their qualifications, but did assume they were competent because they were selected by the hospital for duty in the surgical ward.

Dr. Hilbun stated the surgery was performed on a Saturday. Following the patient's removal to her room, he "went home and was on call that weekend for anything that might come up." Dr. Hilbun made no follow-up contacts with his patient, nor did he make any inquiry that evening regarding Mrs. Hall's post-operative progress. Moreover, he was not contacted by the nursing staff or others concerning Mrs. Hall's condition during the afternoon or evening of May 20 following surgery, or the early morning hours of May 21, although the exhibits introduced at trial disclose fluctuations in the vital signs late in the evening of May 20 and more so, in the early morning hours of May 21. Dr. Hilbun's next contact with his patient came when he was called by Glenn Hall about 4:55 or 5:00 that morning. By then it was too late.

Ironically, during those early morning hours of May 21, Dr. Hilbun was called by a member of the nursing staff concerning a patient who was in a room adjoining Mrs. Hall's, but Dr. Hilbun was not advised of Mrs. Hall's condition and apparently he did not inquire.

The autopsy performed upon Mrs. Hall's body revealed the cause of death and, additionally, disclosed that a laporatomy sponge had been left in the patient's abdominal cavity. The evidence, however, without contradiction establishes that the sponge did not contribute to Mrs. Hall's death. Although the sponge may ultimately have caused illness, this possibility was foreclosed by the patient's untimely death.

Plaintiff's theory of the case centered around the post-operative care provided by Dr. Hilbun. Two areas of fault suggested were Dr. Hilbun's failure to make inquiry regarding his patient's post-operative course prior to his retiring on the night of May 20 and his alleged failure to give appropriate post-operative instructions to the hospital nursing staff.

When questioned at trial, Dr. Hilbun first stated that he had practiced for 16 years in the Singing River Hospital and was familiar with the routine of making surgical notes, i.e., a history of the surgery. He explained that the post-operative orders were noted on the record out of courtesy by Dr. Judy Fabian, the anesthesiologist on the case. He stated such orders were customarily approved by his signature or he would add or subtract from the record to reflect the exact situation.

Dr. Hilbun was asked to read the post-operative orders as noted on May 20, 1978. In pertinent part, his response follows:

Q. Okay, is that done in a shorthand form?

A. To RR; that means to recovery room.

Q. Okay.

A. That is an accepted abbreviation. All right, (2) vital signs every fifteen minutes until stable, then hourly times four, then routinely. (3) NPO. That means nothing by mouth. (4) Intake and output.

Q. Just a second. Intake and output; what does that particular order mean?

A. This woman has a levin tube in, and she has a Foley catheter in her bladder. She has I.V.s in her arm. We like to know exactly how much is going in and how much is coming out so we can keep up with her fluid balance. She is not going to be eating for several days.

Q. The tube is going down her nose, where was that tube going to?

A. To her stomach.

Q. Into her stomach. And what were the other two tubes that she had now?

A. She had a Foley catheter. That's a catheter in your bladder. It is put there for several reasons. One is to keep up with the intake and output; the other is to get the bladder out of the way, because you don't want to operate on someone with a full bladder and have the bladder in the way.

Q. Okay, is there another tube in her with intravenous fluids?

A. I.V. fluids; yes.

Q. So the I & O abbreviation there is to keep up with the intake and output?

A. Right.

Q. Okay, go to the next one.

A. Hemoglobin and (inaudible) in the morning. That is a blood count the next morning.

Q. That was to be done on the 21st; the next morning?

A. Right. (6) Bed rest. Ambulate in a.m. That means to get her up and walk her in the morning. As I mentioned before, nasogastric tube--the tube from your nose to your stomach. We scope to suction. That's to keep the stomach empty.

Q. So the jury will understand later,...

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