Huss v. Gayden

• Decision Date: 14 November 2007
• Docket Number: No. 04-60962.,04-60962.
• Citation: 508 F.3d 240
• Parties: Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association, PC, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

508 F.3d 240

Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association, PC, Defendants-Appellants.

No. 04-60962.

United States Court of Appeals, Fifth Circuit.

November 14, 2007.

Ralph E. Chapman, Chapman, Lewis & Swan, Clarksdale, MS, John H. Daniels, III, Dyer, Dyer, Jones & Daniels, Greenville, MS, Jane Horne Myers Virden, Chapman, Lewis & Swan, Madison, MS, for Plaintiffs-Appellees.

Mark Priestly Caraway, Meta S. Copeland, Wise, Carter, Child & Caraway, Jackson, MS, for Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Mississippi; Eugene M. Bogen, United States Magistrate Judge.

Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

On its own motion, the United States Court of Appeals for the Fifth Circuit invokes Rule 20 of the Mississippi Rules of Appellate Procedure to certify questions that will be determinative of all or part of this case. A majority of the panel has determined that there are no clear controlling precedents in the decisions of the Mississippi Supreme Court.

TO THE HONORABLE SUPREME COURT OF MISSISSIPPI AND THE HONORABLE JUSTICES THEREOF:

The style of the cause is Barbara Huss; Rodney Huss v. John Overton Gayden, M.D.; Memphis Obstetrics and Gynecological Association, PC, pending in the United States Court of Appeals for the Fifth Circuit as cause number 04-60962 on appeal from the United States District Court for the Northern District of Mississippi at Oxford.

I

A divided panel of this court issued an opinion¹ concluding that the medical malpractice claims of Barbara and Rodney Huss were barred, as a matter of law, by the applicable Mississippi two-year statute of limitations, section 15-1-36 of the Mississippi Code.² The Husses requested rehearing en banc, a poll was taken, and a majority of the judges in active service and not disqualified did not vote in favor of granting rehearing en banc.³ That motion was accordingly denied. However, this panel of the Fifth Circuit Court of Appeals granted rehearing before the panel. The Mississippi Supreme Court subsequently issued its opinion in Sutherland v. Ritter,⁴ and now, a majority of this panel, sua sponte, respectfully requests that the Mississippi Supreme Court accept the following certified question:

When the alleged negligence is (1) administration of a drug by a physician, or (2) failure to disclose what a reasonable practitioner would have disclosed about the risks of a drug, and experts disagree as to whether the drug caused the plaintiff's injuries, is the date that the alleged act, omission or neglect might, with reasonable diligence, have been first known or discovered by the plaintiff the date her condition or illness is diagnosed by non-defendant physicians or experts, or the date the pertinent facts are available in medical records, or is limitations tolled until one in a series of physicians or other experts the plaintiff consults first tells her that the drug caused her condition or illness?

II

This is a medical malpractice suit against a physician and a professional corporation of physicians alleging negligence in administering the drug Terbutaline to Barbara Huss during her pregnancy and breach of a duty to disclose the risks of administering Terbutaline. The manufacturer of Terbutaline was not sued.

The specific allegations of negligence and breach of the standard of care at trial were administering Terbutaline as a tocolytic (an agent to slow or halt labor contractions), the prescription of a tocolytic without physical examination by a physician, the prescription of any tocolytic when Huss was not in preterm labor, and the continued prescription of Terbutaline for more than four weeks when there was no evidence that Huss was in preterm labor. The plaintiffs also contended that Huss would not have consented to treatment with Terbutaline had she been informed of risks. The alleged failure to monitor Huss closely when her blood pressure began to rise was cited as a breach of the standard of care, as well.

The facts giving rise to the Husses' suit, which was filed June 30, 2000, are that Barbara Huss became the patient of Dr. Andrea Giddens, a member of Memphis Obstetrics and Gynecological Association PC (Memphis OB/GYN), on February 17, 1998. At that time, Huss was twenty-seven weeks pregnant. Huss informed Dr. Giddens of her relevant medical history, which included weight gain of between forty and fifty pounds during pregnancy, continued cigarette smoking throughout pregnancy, one prior childbirth by Cesarean section, three miscarriages, prior ovarian cysts, and the recent diagnosis of diabetes. Dr. Giddens immediately concluded that Huss had a high-risk pregnancy and directed her to cease working for the remainder of her term.

On March 8, 1998, Huss was feeling increased cramping and pressure and sought treatment from Memphis OB/GYN. Her contractions were five to ten minutes apart, and she thought she was in labor. Memphis OB/GYN's on-call physician, Dr. John Albritton, attempted to stop the contractions and avoid premature childbirth. He did not personally see Huss, but communicated by telephone with a nurse, first ordering intravenous hydration and the drug Stadol. When Huss's contractions continued, Dr. Albritton ordered injections of Terbutaline, and the contractions ceased. The next day, March 9, 1998, a third Memphis OB/GYN physician, Dr. John Gayden, treated Huss and also administered Terbutaline. The following day, Huss was examined by Dr. Giddens, her principal attending physician at Memphis OB/GYN. Dr. Giddens prescribed oral Terbutaline for Huss, which was to be taken daily for several weeks. From March 8, 1998 until her child was delivered in May, Huss experienced various symptoms that caused her to seek emergency treatment on numerous occasions. Although hotly disputed by the defendants at trial, Huss, members of her family, and an acquaintance testified that she experienced severe shortness of breath well before the birth of her child. Huss testified that for two and one-half to three months before delivery, she had severe shortness of breath. On March 20, she was placed on oxygen by an emergency team that transported her to a hospital, and Huss testified that in the weeks before giving birth to her child, her shortness of breath worsened to the point that she was "gasping for breath every other word" and slept sitting up. Huss continued to see Dr. Giddens, and as late as April 21, 1998, Huss was taking Terbutaline and had not been instructed to stop. Huss's medical records reflect the dates and dosages of Terbutaline administered by the defendants.

By May 5, 1998, Huss had experienced high blood pressure and swelling in her legs, and on that date, her physical condition was such that an attempt to induce delivery was made but was unsuccessful. The next day, May 6, 1998, a Caesarean section was performed, and Huss delivered a healthy daughter. Huss was discharged from the hospital May 9, 1998. Her various medical records through that date detailed the administration of Terbutaline and her extensive symptoms and medical history from February 1998, through this discharge, with the exception of her complaints of severe shortness of breath.

After returning home the day of her discharge, Huss continued to experience shortness of breath. She took one of the Terbutaline pills she had "left over" from her prescription because she understood that it was given to asthma patients, and she was concerned about her shortness of breath. At some point during the evening, when she leaned back, she could not breathe. She was taken to the emergency room of Methodist South, a facility that is not a defendant and is not affiliated with any defendant.

It was the following day, May 10, 1998, that Huss was first diagnosed, by three physicians, with cardiomyopathy, pulmonary edema, and congestive heart failure. On that day, an ER physician, who is not a defendant in this case, and Dr. Albritton, who was a member of Memphis OB/GYN, saw her at Methodist South and each diagnosed Huss's conditions. Dr. Albritton requested that Huss be transferred to Methodist Hospital in Germantown (also not a defendant) and that Dr. McDonald, a cardiologist, consult with her, which he did. That same day, May 10, 1998, Dr. McDonald diagnosed Huss as having cardiomyopathy and congestive heart failure. Her medical records from these admissions reflect her severe shortness of breath and her statement that she had been complaining of shortness of breath for the last three months. Neither the ER physician nor Dr. McDonald were sued by the Husses, and neither physician was affiliated with any of the defendants in this suit. Accordingly, on May 10, 1998, Huss was diagnosed with the conditions of which she now complains by two different non-defendant physicians at a non-defendant medical facility.

Huss continued to see Dr. McDonald as her treating cardiologist through the fall of 1998. In October of that year, he released her to return to light work. Huss testified that she felt worse after this and that her grandparents referred her to another cardiologist, Dr. Murray, with whom she consulted in November 1998. He concurred in the diagnosis of cardiomyopathy and continued to treat Huss through the time of trial. There is no indication that Huss asked any of the physicians who treated her on and after May 10, 1998, if the course of treatment by the defendants or the administration of Terbutaline had been substandard or negligent.

In June 1999, Huss and her husband, Rodney Huss, sued Dr. Giddens for medical malpractice. Dr. Giddens was Barbara Huss's primary treating physician at Memphis OB/GYN until the delivery of her child and Huss's discharge from the hospital following that delivery in May 1998. The suit against Giddens was dismissed on jurisdictional grounds.

Huss testified that it was not...