Harris v. Shields, 07-CA-58962

Decision Date15 August 1990
Docket NumberNo. 07-CA-58962,07-CA-58962
Citation568 So.2d 269
PartiesWalter L. HARRIS, Sr., Administrator of Estate of Judith Alice Harris, Deceased v. Frances Richter SHIELDS, Executrix of the Estate of Charles Morris Shields, Deceased.
CourtMississippi Supreme Court

Hick H.H. McClanahan, III, David S. Van Every, Columbus, for appellant.

Andrew N. Alexander, III, Lake Tindall Hunger & Thackston, Greenville, for appellee.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

In May of 1985, Judith Alice Harris faced the painful prospect of having her teeth removed--all of them. She entered the dental office of Dr. Charles Morris Shields for her second extraction session, received the usual anesthetic, experienced a few fitful minutes, then lapsed into unconsciousness to the stunned surprise of everyone. She died seven days later.

In time, Harris' husband brought this wrongful death action, charging that Dr. Shields 1 had been guilty of dental malpractice, in that Dr. Shields failed to check her blood pressure before proceeding. Harris suffered a directed verdict at trial. He appeals and the question is whether the expert he tendered provided a credible opinion from which a jury may have found a failure of Dr. Shields the legal cause of his wife's death.

II.

Judith Alice Harris was a 40-year-old homemaker who lived in Greenwood, Mississippi, standing approximately 5' 1" tall. She consistently weighed over 200 pounds. Judith was married to Walter L. Harris, Sr.

Beginning in June of 1982, Judith became a patient of Dr. W. Merrill Hicks, a Greenwood physician specializing in internal medicine. Over the next three years, Judith intermittently came to see Dr. Hicks at his office for an assortment of medical and emotional problems.

On February 26, 1985, Judith Harris went to the dental office of Dr. Charles Morris Shields in Greenwood and was seen by Dr. Deborah Gregory, Dr. Shields' associate, who diagnosed an acute infection, with paresthesia and generalized periodontal disease. Judith was experiencing considerable pain at the time. Dr. Gregory obtained a medical and dental history and then had Judith seen by Dr. Shields who, after examination, recommended removal of all of her teeth. Judith acquiesced.

Because of information gleaned from the medical history, Dr. Shields consulted with Dr. Hicks concerning the proposed procedure. Dr. Hicks' medical records reflected a notation on June 7, 1982, that "she had one bad seizure seven years ago." On rare occasions, a seizure may be a symptom of congenital vascular malformation. As of June 7, 1982, Dr. Hicks placed Judith on Dilantin 100 mg. and on July 13, 1982, this was increased to 300 mg. "because she had a spell something like a seizure."

According to Dr. Hicks' medical records, Judith's blood pressure readings were:

06/07/82 130/90

07/13/82 130/80

09/17/82 150/95

03/28/83 140/90

05/26/83 130/80

07/30/84 140/100 During this visit Dr. Hicks told Harris "If your BP stays up

for 4 weeks then I'll prescribe the medication for that." [Medical

Records]

02/13/85 140/98 Weight = 223 lbs. "Inderal, 20 mg TID to help both the

tachycardia, anxiety, and hypertension."

03/15/85 130/90 Weight = 225 lbs. "She presented here for a medical evaluation

for dental abscess which she does have. Plan: 1. Recommend removal

of all teeth...."

04/15/85 130/88 Weight = 225

Dr. Hicks sent a note to Dr. Shields giving the go ahead with the extractions and listing the medication.

"To Whom It May Concern:

I believe that Judith Harris should have total dental extraction because of recent abscessed teeth. Her medicines are: Xanax 1 mg TID; Tagamet 300 mg QID; Lomotil 2.5 mg po TID ...; Inderal 20 mg po BID."

Dr. Shields noted on his health history that Judith had a history of high blood pressure.

In response to Judith's request, Dr. Shields telephoned Dr. Hicks and asked if it would be advisable that he perform the extractions in a hospital. Dr. Hicks replied that he saw no medical reason for this course. On May 6, 1985, Dr. Shields pulled two of Judith's teeth without incident.

On May 20, 1985, Judith returned to Dr. Shields' office for a second series of extractions. Darla Lubas, Dr. Shields' dental assistant, describes what happened:

A. Mrs. Harris was our first patient and Anna Henderson took Mrs. Harris back to the back room, the operatory, and seated her and she went up there to get Dr. Shields and myself, and we went back there and he laid her back to give her some anesthesia. He was extracting some of her front teeth. Everything was normal. She was a little bid [sic] edgy, which is not unusual for a dental patient. And he gave her the anesthesia, everything was fine. I was standing there observing him give the anesthesia. And then a few minutes later she looked at us and said that her head was pounding, that she felt a little nauseated, so Charles ... Dr. Shields let her up and put some paper towels and put them on her forehead and she was fine; and he was standing there and I was standing there and she said her head was pounding, and then she began to regurgitate and I held the trash can for her while she got sick, and Charles left the room to call Dr. Hicks. * * * So she was back there, she got sick again; and after the second time, she felt fine, she was okay. We had her sitting up and I was back there with her talking to her. And she was fine, she was coherent. I had taken her pulse; her pulse was not erratic. Her pupils were normal. We were talking and she looked at me and she said, "I'm just scared. I think I'm having a cerebral hemorrhage." And I said, "A cerebral hemorrhage." I said, "No ma'am," and she said, "Yeah." And I said, "No, ma'am you don't have to worry, you're not having one of those." And then we started talking and a few seconds later she became incoherent. She started to babble. She started talking about the little girl next door, started talking about her husband would be mad at her, starting [sic] taking Valium, and the next thing I knew she was out. Her eyes went in the back of her head and she was out.

She was taken to Greenwood-Leflore Hospital and died seven days later, never having regained consciousness.

Dr. Donald E. Pierce, staff pathologist at the Greenwood-Leflore Hospital, performed an autopsy and identified as the cause of Judith Harris' death "Massive cerebral hemorrhage from vascular malformation at base of brain with extensive encephalomalcia." Put more simply, Dr. Pierce said what killed Judith was intracranial pressure produced by her cerebral hemorrhage. Judith had "[a] vascular malformation [which is] a cluster of thin walled abnormal vessels. They would have ... thin walls and would be weaker than normal vessels." "A rupture would be when the wall of the vessel just breaks open and the blood is released into the area outside the vessels." Judith's vascular malformation was a congenital weakness.

No one suggests Dr. Shields or any member of his staff did anything which directly caused Judith's death. More specifically, Judith's husband and administrator, Plaintiff below and Appellant here, concedes his wife's death was in no way a reaction to the anesthetic. Dr. Pierce testified

[Judith Harris] had the vascular malformation. It was a weakness that was there; and, in my opinion, it was ... it was just a matter of coincidence and timing that it happened at the time and place that it did. There was a weakness there and it finally gave way.

Dr. Hicks, Dr. Gregory and the several employees and attendants in Dr. Shields' office each testified and in such a way as to exonerate Dr. Shields. The Circuit Court accepted this testimony and directed a verdict for Dr. Shields, dismissing Judith's administrator's suit, and the question is whether he countered this testimony with evidence sufficiently credible that a reasonable jury could have found in his favor on each element of his claim. Enter Dr. Gerughty.

III.

A.

The critical issue is one of legal cause. Plaintiff administrator at trial and here seeks to survive via the testimony of Dr. Ronald P. Gerughty. Dr. Gerughty possesses impressive credentials. He is Dean of the College of Health at the University of Central Florida in Orlando. He holds a D.D.S. in dental surgery and a Ph.D. in pathology, both from the University of California. Dr. Gerughty has completed a medical residency in anatomic and surgical pathology and has obtained board certification in oral pathology and in recent years has practiced in the sub-specialty field of forensic pathology.

Below and here the parties spend much time arguing Dr. Gerughty's qualifications and in a form we find familiar, they focus upon the effect of Dr. Gerughty's lack of a medical degree. As important as that formal degree may be--and certainly is--we regard it settled that persons otherwise qualified within Rule 702, Miss.R.Ev., 2 may express opinions in areas once thought the exclusive domain of the medical profession, notwithstanding the witness' lack of an M.D. degree. See, e.g., Thompson v. Carter, 518 So.2d 609, 614-15 (Miss.1987); Sonford Products Corporation v. Freels, 495 So.2d 468, 472-73 (Miss.1986); Mississippi Farm Bureau Mutual Insurance Company v. Garrett, 487 So.2d 1320, 1326-27 (Miss.1986). Conversely, not every M.D. is a qualified expert in every medical malpractice case. See Hall v. Hilbun, 466 So.2d 856, 875 (Miss.1985); but see Brown v. Mladineo, 504 So.2d 1201, 1202-03 (Miss.1987). The question is whether the particular witness really is an expert in the field in which he or she is tendered. Formal education is but one route to expertise. En route to considering whether the Court may have erred, we must visit our rules of predicate providing that as a preliminary step, the plaintiff must prove that the error, if there be one, makes a difference. Rule 103(a)(2), 3 Miss.R.Ev., carries forward our pre-rules law, which required of plaintiff a proffer of an...

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