Herrington v. Spell

• Decision Date: 17 April 1997
• Docket Number: No. 92-CA-00947-SCT,92-CA-00947-SCT
• Citation: 692 So.2d 93
• Parties: Mary E. HERRINGTON and Clyde P. Herrington v. James P. SPELL, M.D.
• Court: Mississippi Supreme Court

Page 93

692 So.2d 93

Mary E. HERRINGTON and Clyde P. Herrington v. James P. SPELL, M.D.

No. 92-CA-00947-SCT

Supreme Court of Mississippi.

April 17, 1997.

Edward A. Williamson, Philadelphia, T. Jackson Lyons, Jackson, Rick F. Fortenberry, Jr., Meridian, for appellant.

Mildred M. Morris, James A. Becker, Jr., Watkins & Eager, Jackson, for appellee.

Jay Boling, Meridian, Merrida Coxwell, Keyes Danks Coxwell & Leonard, Thomas E. Royals, Jackson, for amicus curiae.

En Banc:

ON MOTION FOR REHEARING

PITTMAN, Justice, for the Court:

The motion for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor.

A complaint alleging medical malpractice was filed against Dr. James P. Spell on behalf of Mary E. Herrington and her husband, Clyde P. Herrington, in December 1990. This complaint alleged that Dr. Spell contracted with Mrs. Herrington to perform a biopsy upon her and that he exceeded their agreement by performing a modified radical mastectomy; further, the Herringtons alleged that alternative treatment less than a modified radical mastectomy would have been just as effective. Additionally, the Herringtons alleged that Dr. Spell should have awakened Mrs. Herrington after the biopsy and informed her of the results before proceeding with any additional treatment. The complaint prayed for actual and punitive damages against Dr. Spell.

The case proceeded through discovery, and trial began on June 17, 1992. On June 20, 1992, the jury returned an eleven to one verdict in Dr. Spell's favor. The lower court overruled the Herringtons' motion for judgment notwithstanding the verdict and motion for new trial. Aggrieved by the decision of the lower court, the Herringtons appealed to this Court and asserted the following as issues on appeal:

I. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED THE HERRINGTONS' PEREMPTORY INSTRUCTION AND GRANTED JUDGMENT NOTWITHSTANDING THE VERDICT ON THE BASIS OF FAILURE OF INFORMED CONSENT OR ON THE BASIS OF DR. SPELL'S FAILURE TO POSSESS A REALISTIC UNDERSTANDING OF HIS OWN LIMITATIONS AND A KNOWLEDGE OF OPTIONS, RESOURCES AND OTHER FACILITIES AVAILABLE IN THE TREATMENT OF MARY HERRINGTON AND THE STATE OF KNOWLEDGE, AS IT EXISTED IN DECEMBER 1988.

II. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED THE HERRINGTONS' PEREMPTORY INSTRUCTION AND GRANTED JUDGMENT NOTWITHSTANDING THE VERDICT ON THE BASIS OF A LACK OF ANY ACTUAL CONSENT DUE TO INCAPACITY FROM MEDICATIONS ADMINISTERED TO THE PLAINTIFF.

III. WHETHER THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY BY GRANTING DR. SPELL'S

INSTRUCTION D-17 AND DENYING THE HERRINGTONS' INSTRUCTION P-7(C) AND TWO INSTRUCTIONS NUMBERED P-8(D) WHICH REQUIRED THAT THE HERRINGTONS PROVE WHICH OF TWO REASONABLE ALTERNATIVE PROCEDURES A HYPOTHETICAL, REASONABLE PERSON WOULD HAVE CHOSEN IN ORDER TO PROVE CAUSATION.

IV. WHETHER THE FAILURE TO EXCUSE TWO JURORS, ONE OF WHOM WAS A FORMER PATIENT OF DR. SPELL AND THE OTHER OF WHOM WAS A PATIENT OF DR. HULL AND THEIR INCLUSION IN THE JURY IN THIS CASE CONSTITUTES REVERSIBLE ERROR.

V. WHETHER THE TRIAL COURT IMPROPERLY INTERJECTED ITSELF INTO THE TRIAL OF THE CASE TO THE PREJUDICE OF THE HERRINGTONS.

VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON DR. SPELL'S DUTY TO POSSESS KNOWLEDGE OF A REALISTIC UNDERSTANDING OF HIS OWN LIMITATIONS AND A KNOWLEDGE OF OPTIONS, RESOURCES AND OTHER FACILITIES AVAILABLE IN THE TREATMENT OF MARY HERRINGTON AND THE STATE OF KNOWLEDGE, AS IT EXISTED IN DECEMBER 1988, AS REQUESTED BY THE HERRINGTONS' INSTRUCTION P-7(A).

VII. WHETHER THE HERRINGTONS SHOULD HAVE BEEN ENTITLED TO A NEW TRIAL BECAUSE OF MULTIPLE EVIDENTIARY ERRORS AND RULINGS BY THE TRIAL COURT.

VIII. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO AWARD A NEW TRIAL TO THE HERRINGTONS BECAUSE THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

IX. WHETHER THE COURT SHOULD HAVE ALLOWED THE CASE TO PROCEED BEFORE THE JURY ON THE ISSUE OF PUNITIVE DAMAGES.

After thorough consideration and careful review, this Court holds that none of the issues have merit and the lower court should be affirmed.

Issues I and II

The standard of review for whether a peremptory instruction should be granted is the same as the criteria for a directed verdict. Wilner v. Miss. Export R. Co., 546 So.2d 678, 681 (Miss.1989). Because the request for a peremptory instruction is the "functional equivalent of a motion for a directed verdict under Rule 50(a)," we apply the same standard to both. Id.

[T]he trial court must consider the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences that may be drawn therefrom; unless the plaintiff's evidence is so lacking that reasonable jurors could not reach a verdict for the plaintiff, the [instruction] should be [given].

Wilner, 546 So.2d at 681. We have also held that "a trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree." Vines v. Windham, 606 So.2d 128, 131 (Miss.1992). In the present case, there was clearly a factual question to be determined. Even giving the Herringtons the benefit of all reasonable inferences, a question of fact for the jury remained.

The main point the Herringtons make in this argument is that the consent Mrs. Herrington gave was invalid. The undisputed testimony was that Mrs. Herrington had taken three medications the night before. She asserts that this rendered her consent invalid because she did not remember signing the consent form. Mrs. Herrington also relies upon the testimony of Dr. Romsdahl that it is not at all inconsistent with mental incapacitation from taking those drugs or having, at least, limited affect on one's capacity that a Because the testimony from both parties conflicts, it becomes a fact question for the jury. Thus, credibility was a major issue. Whom did the jurors believe, Dr. Spell or the Herringtons? There are a number of examples where Mrs. Herrington's credibility was called into question. For example, Mrs. Herrington testified that she was not used to the types of medications she had the night before the surgery. However, her medical records proved that she had taken numerous mood altering medications over a period of years. Moreover, two of the medications taken on the night before surgery were shown in the medical records to be Mrs. Herrington's regular medications. There was definitely a jury question about whether the consent was valid. Thus, denying a peremptory instruction on this ground was not error.

person appears normal when under heavy sedation. Thus, Dr. Spell's testimony that Mrs. Herrington appeared normal would not necessarily mean that her mind was functioning normally.

The Herringtons' next contention relates to what the scope and duty of a doctor are in this situation in regards to informed consent. In an action based upon lack of informed consent, the plaintiff must prove by a preponderance of the evidence that there was a duty, breach of that duty, proximate cause, and an injury resulting from the breach. Hudson v. Parvin, 582 So.2d 403, 410 (Miss.1991).

We have adopted an objective test to determine what information a physician must disclose to the patient about the medical procedure which is to be performed. The test is based on the patient's need rather than on the standard in the medical profession. Using the objective test, "a physician must disclose those known risks which would be material to a prudent patient in determining whether or not to undergo the suggested treatment." Phillips By and Through Phillips v. Hull, 516 So.2d 488, 493 (Miss.1987)(quoting Reikes v. Martin, 471 So.2d 385, 392 (Miss.1985)).

An objective test is also used to determine if there is a causal connection between the breach of the duty and the resulting injury. "Under this test the question becomes whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment." Reikes v. Martin, 471 So.2d 385, 392 (Miss.1985).

Hudson, 582 So.2d at 410 (emphasis added). We have held that the test for informed consent is not what the medical standard is, but rather what the patient needs to be informed.

Dr. Spell notes that it is important to remember that he recommended modified radical mastectomy only after Mrs. Herrington expressed her fear of recurrence and her fear of radiation treatment. Dr. Spell and two additional experts testified that the information supplied by Dr. Spell to Mrs. Herrington was within the standard of care and, in fact, exceeded the standard of care necessary to obtain the proper informed consent. Dr. Briggs Hobson testified that he also would have recommended a modified radical mastectomy to a patient like Mrs. Herrington and gave a detailed explanation. He further agreed that a one-step procedure is within the acceptable standard of care and that this area of treatment is still in controversy. Also, Dr. Ralph Didlake, a professor at the University of Mississippi School of Medicine, agreed that the recommendation for mastectomy was absolutely appropriate and that the one-step procedure was within the standard of care.

The relevant consideration for purposes of the present issue, however, is whether or not there arose a duty to inform based on the patient's needs, rather than on the applicable standards of care in the medical profession. The aforementioned testimony is more relevant for the purposes of the "professional" standard of care which this Court has rejected than for the "objective patient-need" standard which this Court has adopted. Reikes, 471 So.2d at 392. Nevertheless, this Court concludes that there is substantial evidence supporting the trial court's verdict under either standard of care. This Court places considerable weight on the testimony of Dr. Spell's experts that,...