Hammond v. Grissom

• Decision Date: 29 May 1985
• Docket Number: No. 54794,54794
• Citation: 470 So.2d 1049
• Parties: James M. HAMMOND, et al., v. C.E. GRISSOM, M.D., et al.
• Court: Mississippi Supreme Court

Page 1049

470 So.2d 1049

James M. HAMMOND, et al., v. C.E. GRISSOM, M.D., et al.

No. 54794.

Supreme Court of Mississippi.

May 29, 1985.

James J. Fougerousse, Jackson, for appellants.

Cary E. Bufkin, D. Collier Graham, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellees.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

The matter of the quantum and quality of evidence necessary in a medical malpractice case to establish the failure to provide requisite emergency room care is presented to the Court. Plaintiffs/appellants, the heirs and next of kin of Mrs. Flora Hammond, deceased, invoking the provisions of Mississippi Wrongful Death Statute, Miss.Code Ann. Sec. 11-7-13 (Supp.1984), filed suit against defendants/appellees, Dr. C.E. Grissom, emergency room doctor, and Mississippi Baptist Hospital in the Circuit Court of Hinds County, alleging Flora Hammond's wrongful death from medical malpractice. The Circuit Court directed a verdict in favor of the defendants at the close of the plaintiffs' case in chief and entered final judgment thereon.

Appellants assign as error:

(1) The trial court erred in sustaining the defendants' objection to the qualifications of plaintiffs' expert witness.

(2) The trial court erred in directing a verdict in favor of the defendants.

I.

Appellants are the heirs and next of kin of Flora B. Hammond, who died on February 24, 1976. On February 23, 1976, after falling and injuring her head, Mrs. Hammond was admitted to the emergency room at the Mississippi Baptist Medical Center in Jackson, Mississippi at approximately 1:30 p.m. Appellee, Dr. C.E. Grissom, was the attending emergency room physician at the time of Mrs. Hammond's admission.

After x-rays were taken, Mrs. Hammond was placed in a treating room in the emergency room area of the hospital at 2:25 p.m. According to two of her daughters who were present, Mrs. Hammond was bleeding profusely from her right ear, nose and the back of her head. Mrs. Hammond's daughters, Cheryl Janotta and Rita Watkins, unassisted by hospital personnel, attempted to attend to their mother's needs. Cheryl Hammond Janotta testified that she used all available swabbing material that she could find to clean the blood from her mother's wounds. According to Janotta, no treatment or tests were administered by hospital personnel at this time.

It was Mrs. Hammond's daughters who attended their mother; they secured an orderly to remove Mrs. Hammond's dentures in order to prevent her from choking; they obtained additional swabbing material from another treatment room in order to clean up the continued bleeding; they obtained bed pans in order that Mrs. Hammond might use the bathroom.

At approximately 2:45 p.m., Dr. Grissom came into the treating room with Mrs. Hammond's x-rays and explained to the family that Mrs. Hammond had a skull fracture and needed the services of a neurosurgeon. When asked about the extensive bleeding, Dr. Grissom indicated that such bleeding was normal with this type of fracture. The family advised Dr. Grissom of their preference in selection of a neurosurgeon, and presumably Dr. Grissom left to contact the neurosurgeon.

Mrs. Hammond remained in the treating area from the time of Dr. Grissom's visit until approximately 4:10 when two nurses began an intravenous drip and left. At 4:30 p.m. two candy striper volunteers took Mrs. Hammond toward the intensive care unit, stopping to talk to a nurse on the way for from three to five minutes, arriving in the ICU at approximately 4:45 p.m. No medical care was administered during this two hour period, except the IV drip immediately before removal to ICU. The hospital records show that Dr. Glen Warren was called to the ICU at 4:45 p.m. and told "that Mrs. Hammond had arrived and she had experienced a respiratory arrest." Warren's physical examination report also stated that on his initial evaluation "she was in an irreversible neurological state clinically. The family was so informed."

According to a family member's testimony, Dr. Warren first talked to them at 5:15 p.m. Mrs. Hammond was pronounced dead at approximately 1:00 a.m. on the morning of February 24, 1976. Dr. Forrest G. Bratley, pathologist, testified that an autopsy revealed at least two ounces of liquid blood and blood clot on each side of Mrs. Hammond's brain. According to Bratley, the brain itself was swollen and compressed by the blood which had collected around it. As a result of this pressure, the vital respiratory and cardiac centers of the brain were compressed.

Dr. John V. Cockrell was offered as an expert witness on behalf of the plaintiff. Following the voir dire of Cockrell, the trial court sustained the defendant's objection to qualification of Cockrell as an emergency room expert. No proffer was made of Dr. Cockrell's testimony and, accordingly, the record does not contain the substance of what his testimony would have been.

II.

I. Did the trial court err in sustaining defendant's objection to the qualification of Dr. John V. Cockrell as an expert witness?

The professional qualifications and background of Dr. John V. Cockrell were fully developed during voir dire. Cockrell graduated from Columbia University Medical Center in 1937. His residency and surgical pathology was served at the Presbyterian Hospital in New York and his internship and assistant residency in surgery was taken at St. Marks Hospital in New York. Cockrell is licensed to practice medicine in Mississippi and came to Jackson in 1946 to serve as the chief of surgery at Veterans' Hospital. Upon retirement from that position in 1968, Cockrell was employed by the Department of Pathology at the University of Mississippi Medical School where he served as assistant professor of surgery and assistant professor of pathology until his retirement in 1977. Dr. Cockrell testified that he had knowledge of emergency room procedure at the Veterans' Hospital and that he was familiar with the standard of care and practice throughout the community. Dr. Cockrell testified that he had "walked through" the emergency room at the Mississippi Baptist Hospital, but that he had never studied the procedures and methods of handling patients employed by the Mississippi Baptist Hospital. ¹

In deciding whether the trial court correctly excluded the testimony of Dr. Cockrell, the initial inquiry is whether the offered expert testimony will be of assistance to the trier of fact. Hardy v. Brantley, 471 So.2d 358 (Miss.1985); Dazet v. Bass, 254 So.2d 183 (Miss.1971). In medical malpractice cases we may say with confidence that generally expert medical testimony will be of such assistance. Jeanes v. Milner, 428 F.2d 598, (8th Cir.1970) (expert evidence was not required since alleged negligence was within the comprehension of a jury of laymen); Duling v. Bluefield Sanitorium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965) (the general rule as to necessity of expert witnesses in medical malpractice cases is qualified so as to permit negligence to be established without expert testimony in cases where negligence or want of skill is so obvious as to dispense with need of expert testimony); Rural Educational Asso. v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761 (1956) (expert testimony not necessary to establish negligence, for any layman would know that leaving sponge in plaintiff's body was negligent); c.f. Frazier v. Grace Hospital, 117 W.Va. 330, 185 S.E. 415 (1936) (plaintiff's extraordinary injuries and complications required expert testimony instead of conjecture of laymen), Annot., 40 A.L.R.3d 515, at 518 (1971). The problem with the case sub judice is that such a determination is not possible because no proffer of the testimony of Dr. Cockrell was made a part of the record. The posture of the case sub judice is therefore identical to that in Dazet v. Bass, supra. In Dazet, one of the errors assigned on appeal was the refusal of the trial court to qualify plaintiff's expert witness. This Court stated:

[T]hat question is not necessarily reached for the reason that Dr. Dugas was dismissed from the stand and no offer was made to take his testimony in the absence of the jury, nor was the substance of his testimony dictated into the record. When a party seeks reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witness must be presented and there must be a specific statement of what the answers or testimony of the witness would be.

254 So.2d at 187-188.

The recent refinements regarding qualification of medical experts announced by this Court in Hall v. Hilbun, 466 So.2d 856 (Miss.1985) apply retroactively to "any case in which an appeal is pending and in which the issue has been properly preserved...." 466 So.2d at 876. Proper preservation of the issue of qualification of an expert medical witness includes satisfaction of the Dazet v. Bass requirement. See Hardy v. Brantley, 471 So.2d 358 (Miss.1985).

Based upon Dazet v. Bass, supra, this Court concludes that reversal solely on the trial court's exclusion of Dr. Cockrell's testimony would be inappropriate due to the failure of appellants to make a record of what that testimony would have been.

However, this Court recognizes that the testimony of Dr. Cockrell's professional qualifications and experience, his expressed knowledge of the standard of care for emergency room doctors in Jackson, Mississippi, the city in which he practiced for nearly 40 years, and in other cities of the United States with which he was familiar, qualified him as an expert medical witness in the field of emergency room doctors. ² He met the qualifications set forth in Hall v. Hilbun, supra and Hardy v. Brantley, supra, and should have been permitted to testify.

It is significant to note, however, that this Court does not require the appellant to establish with certainty that the excluded testimony would...