Hickox By and Through Hickox v. Holleman, 56004

Decision Date21 January 1987
Docket NumberNo. 56004,56004
Citation502 So.2d 626
PartiesDeborah Lynn HICKOX, a Minor, By and Through Her Father and Next Friend and Guardian, Henry B. HICKOX, Separately and Severally v. Boyce HOLLEMAN, Individually, Boyce Holleman, A Professional Association; Philip Weinberg, Separately and Severally.
CourtMississippi Supreme Court

James W. Nobles, Jackson, Robert T. Cunningham, Donald Richard Bounds, Mobile, Ala., for appellant.

Jerry O. Terry, Greaves, Terry, Sheely & Holder, Gulfport, for appellee.

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

HAWKINS, Presiding Justice, for the Court:

Deborah Lynn Hickox and her father Henry B. Hickox appeal from a judgment of the circuit court of the First Judicial District of Harrison County sustaining a motion for a directed verdict and dismissing their legal malpractice suit against Boyce Holleman and Philip Weinberg individually, and Boyce Holleman, a professional association.

The circuit judge sustained the motion first, because there was no proof of a deviation in the proper standard of care by treating physicians of Deborah (Debbie) in New York, and second, that the statute of limitations had run against the plaintiffs barring a suit against the United States Government under the Federal Tort Claims Act before they ever retained the legal services of these defendants.

In the posture of this appeal, under the familiar guidelines stated herein, we consider all of the credible evidence in the case in the light most favorable to the plaintiff and indulge all reasonable inferences which will support plaintiffs' cause. See Smith v. Estate of Gilbert, 498 So.2d 823 (Miss.1986); Evans v. Journeay, 488 So.2d 797, 799 (Miss.1986); White v. Hancock Bank, 477 So.2d 265, 269 (Miss.1985); Edwards v. Cleveland Foods, Inc., 437 So.2d 56, 58 (Miss.1983).

Because the circuit court erred in excluding opinion testimony from a medical expert, we reverse.

FACTS

Debbie was born April 9, 1972, the third child of Henry B. and Claudine Hickox. Henry was in the United States Navy, stationed at Hempstead, New York, as a recruiter. The United States Naval Hospital at St. Albans (called St. Albans) was approximately twenty miles away. At the end of November, 1972, Debbie became ill with a high fever and sick to her stomach. On December 2 her parents took her to the pediatric clinic at St. Albans. Both parents testified they had first taken her to the hospital in November, but the records produced showed no visit prior to December 2. 1

On the December 2 visit the attendants checked Debbie's temperature, her ears, nose and throat. The attendants prescribed Tylenol and lots of liquid, and told the parents to sponge bathe Debbie when her temperature got high. Her condition did not improve following this visit, so the parents called the hospital, and eventually brought Debbie back to the clinic on December 6. She was again examined and the same treatment prescribed.

Debbie's condition did not improve. Her parents thought she was getting worse, so they again returned to the hospital on December 15. At this visit the hospital performed a spinal puncture which revealed Debbie had bacterial meningitis.

Debbie's final diagnosis was haemophilis influenza meningitis, with resultant permanent brain damage. She was hospitalized until January 5, 1973.

Her parents returned her to St. Albans on January 6, 1973, where she remained hospitalized until January 12. When the hospital discharged Debbie, they told the Hickoxes that Debbie suffered from hydrocephalus, post hemophilus influenza meningitis. 2

Until November, 1972, Debbie was a healthy baby. Her disease caused permanent brain damage, whereby she became little more than a vegetable, totally dependent on others for her care and feeding. She could not speak, her excretions were controlled by diaper, she had to be spoon fed, and could not move her arms or legs. At eleven years of age, she weighed approximately forty pounds, and was four feet tall.

Henry retired from the Navy in May, 1974, and moved to Jackson County. According to Henry and Claudine, in the latter part of November, 1974, they both went to Holleman's office in reference to employing him for any claim they had for medical malpractice.

Holleman referred them to Weinberg, an associate in the firm, who interviewed them. The Hickoxes gave Weinberg Debbie's medical records, discussed their claim with him, and orally agreed to employ the firm for a one-third contingency fee. 3

Hickox testified they heard nothing from Weinberg, so they returned to his office in April, 1975. Then Weinberg told them he had lost his notes. Weinberg interviewed Mr. Hickox again and took more notes.

The Hickoxes made two or three inquiries following this visit. Each time the firm reassured them, but on July 6, 1976, Ben Galloway, in Holleman's firm, wrote Claudine that Weinberg had left the firm and that Claudine should contact him about Debbie's case.

The Hickoxes became dissatisfied with this representation, and on some later date got their file from the Holleman law firm. On June 14, 1977, they employed J. Allan Sadler of the law firm of Bailey and Sadler in Ocean Springs to represent them. The same day the chancery court of Jackson County appointed Hickox legal guardian of Debbie and authorized him to file suit on her behalf.

On February 2, 1979, Debbie through her father, and Henry individually filed a complaint in the United States district court for the Southern District of Mississippi against the United States under 28 U.S.C. Sec. 1346(b), the Federal Tort Claims Act. As to Debbie's medical history and the events following, the complaint alleged the facts above related, except no allegation was made that she had been taken to St. Albans prior to December 2, 1972. The complaint demanded $1,250,000 damages for Debbie, and $250,000 for Henry. The Hickoxes propounded interrogatories to the Government, asking the names and addresses of treating physicians and nurses, and for detailed facts as to her examination and treatment. The Government objected to answering the interrogatories, because the complaint on its face showed the cause was barred by 28 U.S.C. Sec. 2401(b), since it had not been presented to any appropriate government agency within two years from the time her claim arose, the plaintiff having first corresponded with the U.S. Navy on August 30, 1979. Even so, the Government filed an answer to the complaint, alleging as its first defense the claim was barred by the two-year limitation of 28 U.S.C. Sec. 2401(b).

The answer admitted Debbie was a patient and received treatment in the emergency room at St. Albans on December 2, 1972, and stated affirmatively that on December 6 the pediatric clinic at St. Albans treated her, with Debbie having a history of fever running 103-104 degrees for a week, recurring vomiting and diarrhea for three days. The answer also alleged a physician diagnosed Debbie on that date with viral syndrome. The answer also admitted that the hospital admitted Debbie on December 15, took a spinal puncture test, and made a diagnosis of bacterial meningitis. The answer admitted that all physicians who saw Debbie were government employees.

On January 2, 1980, the Government filed a motion to dismiss because the claim was barred under 28 U.S.C. Sec. 2401(b). The Government attached as an exhibit to this motion what was alleged to be everything in writing that it had received from the Hickoxes prior to filing the complaint. Among the papers in this exhibit was a dim photostatic copy of the narrative summary of Debbie's hospital record on December 15, 1972, consisting of two pages. The names of the doctors signing this summary are not legible.

On January 10, 1980, an order dismissing the case was entered, because of the failure to present a claim within two years as required by the federal statute.

The above record of the federal court proceedings was offered into evidence as Exhibit 3 to the plaintiffs' case for the trial of this cause.

This suit was brought on August 19, 1980, against Holleman and Weinberg individually, and the Boyce Holleman professional association in the circuit court of Harrison County, alleging legal malpractice. Debbie sued through her father as guardian and next friend claiming damages of $3,000,000 and Hickox also sued in his individual capacity for loss of his right against the government claiming damages of $500,000.

The Hickoxes asserted the Holleman firm negligently failed to file a claim within two years from its accrual as required under Title 28 U.S.Code Ann. Sec. 2401(b). The Hickoxes asserted that the defendants were liable because their negligence caused Debbie to lose her right to pursue a meritorious medical negligence claim against the government.

Prior to trial the circuit judge excluded the St. Albans medical records which the plaintiffs proposed to offer into evidence.

Henry and Claudine were the first witnesses, who testified as above set forth.

Terry B. Carle, M.D., a specialist in physical medicine and rehabilitation, who examined Debbie in July, 1983, testified about her condition and gave his prognosis that she would be totally incapacitated for her life, due to the infectious encephalitis or meningitis.

Following the Hickoxes' move to Jackson County, Debbie was periodically taken to the medical center at Keesler Air Force Base for medical attention and treatment. The director of patient affairs and custodian of the medical center's records, Capt. Terry McCullough, pursuant to a subpoena, produced all the Keesler Air Force Base medical center's records pertaining to Debbie. In those records were what purported to be some of her medical records from St. Albans. Among these were the photostatic copy of notes made at a December 2 and a December 6, 1972, out-patient visit by some individuals who examined some patient on those dates (Debbie's name is not on them), and photostatic copies...

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