Huss v. Gayden

• Decision Date: 10 June 2009
• Docket Number: No. 04-60962.,04-60962.
• Citation: 571 F.3d 442
• 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

571 F.3d 442

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.

June 10, 2009.

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

Mark Priestly Caraway (argued), 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.

Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

In this medical malpractice diversity suit, defendants appeal a jury's $3.5 million award to plaintiff Barbara Huss. We reverse and remand for a new trial.

I.

We begin with a brief overview of this litigation. Barbara Huss and her husband Rodney Huss filed this lawsuit on June 30, 2000. The parties consented to have the case heard before a magistrate judge. Trial was held in Greenville, Mississippi on August 17-20, 2004. A jury of eight returned a general verdict in favor of Barbara Huss and awarded her $3,500,000. The jury also returned a verdict in favor of Rodney Huss, but awarded him nothing. A divided panel of this Court concluded that the applicable Mississippi statute of limitations barred the Husses' claims as a matter of law. Huss v. Gayden (Huss I), 465 F.3d 201, 208-09 (5th Cir.2006). 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. Huss v. Gayden (Huss II), 2006 WL 5013195, at *1 (5th Cir. Dec. 27, 2006) (per curiam). However, this panel granted rehearing before the panel. In light of the Mississippi Supreme Court's opinion in Sutherland v. Ritter, 959 So.2d 1004 (Miss.2007), a panel majority sua sponte requested that the Mississippi Supreme Court accept a certified question regarding the statute of limitations. Huss v. Gayden (Huss III), 508 F.3d 240, 245-48 (5th Cir.2007). The Mississippi Supreme Court accepted the question, and held that defendants' limitations defense fails as a matter of law. See Huss v. Gayden (Huss IV), 991 So.2d 162, 165 (Miss.2008). We now vacate our prior decision and address the remaining issues.

II.

This is a medical malpractice suit against a physician and a professional corporation of physicians. Barbara and Rodney Huss, citizens of Mississippi, allege that defendants John Gayden and Memphis Obstetrics and Gynecological Association PC ("Memphis OB/GYN"), citizens of Tennessee, negligently administered the drug Terbutaline sulfate¹ to Barbara during her pregnancy. The manufacturer of Terbutaline was not sued.

The Husses argued at trial that defendants breached the standard of care by administering subcutaneous Terbutaline to Barbara as a tocolytic (an agent to slow or halt premature labor contractions), the prescription of a tocolytic without physical examination by a physician, the prescription of any tocolytic when Barbara was not actually in labor, and the prescription of Terbutaline for four weeks when there was no indication that Barbara was in labor. The Husses also said Barbara would not have consented to treatment with Terbutaline had she been informed of the risks. The Husses say Terbutaline caused Barbara to develop cardiomyopathy,² pulmonary edema, and congestive heart failure.

A.

Barbara became the patient of Dr. Andrea Giddens, a member of Memphis OB/ GYN, on February 17, 1998. At that time, Barbara was twenty-seven weeks pregnant, and had a due date of May 17. Barbara informed Dr. Giddens that her medical history included one childbirth by Cesarian section, three miscarriages, prior ovarian cysts, and hypertension. Barbara's medical conditions and factors on February 17 included: weight gain of forty to fifty pounds during pregnancy, swelling, near-constant nausea and vomiting, gestational diabetes (i.e., pregnancy-induced diabetes), and continued cigarette smoking throughout pregnancy. Dr. Giddens believed that the "excessive" weight gain was due in part to retention of excess fluid, or edema, as well as excessive eating. Dr. Giddens concluded that Barbara had a "high-risk pregnancy" and directed her to cease working for the remainder of her term.

On March 8, 1998, when Barbara was thirty weeks pregnant, she felt increasing cramping and pressure. She experienced contractions five to ten minutes apart, and she thought she was in labor. She sought treatment from Memphis OB/GYN's emergency room at 11:15 p.m. The on-call physician, Dr. John Albritton, attempted to stop the contractions. He did not personally examine Barbara, but communicated by telephone with a nurse, first ordering intravenous hydration and the drug Stadol. When contractions continued, Dr. Albritton ordered subcutaneous injections of Terbutaline. Barbara was given two injections, and the contractions ceased within a few hours. The next morning, March 9, 1998, defendant Dr. John Gayden, a Memphis OB/GYN physician, prescribed administration of 2.5 milligram oral Terbutaline tablets. Barbara initially received 30 pills, and was to take a pill every six hours. The prescription was refilled three times, meaning Barbara received 120 pills, or a supply for approximately four weeks. Although contractions had ceased, Dr. Gayden prescribed Terbutaline prophylactically to prevent the recurrence of pre-term contractions and to forestall premature labor and delivery. Barbara was discharged from the hospital on the morning of March 9.

On March 10, 1998, Barbara returned to Memphis OB/GYN for a follow-up examination by Dr. Giddens. Barbara was experiencing occasional contractions at that time. Dr. Giddens concurred in the prophylactic prescription of oral Terbutaline as a tocolytic. At trial, Dr. Giddens was recognized as an expert in obstetrics and gynecology. She testified that she was concerned with Barbara's past Cesarian section. Dr. Giddens said: "I was concerned about her contracting at home and the risk for contractions ... with a prior section is uterine rupture, which can be devastating. The baby can die. The mother can die. So I did not want her to have contractions regularly." Moreover, Dr. Giddens testified that premature delivery would have severe adverse impacts on the health of the child. Dr. Giddens said she believed it was medically proper, and within the standard of care, to prescribe Terbutaline prophylactically as a tocolytic. Terbutaline is labeled for treatment of asthma, but Dr. Giddens indicated that, when prescribed off-label as a tocolytic, it is safe, effective, and appropriate. Dr. Giddens indicated that because Barbara had not shown any signs of high blood pressure or heart problems, it was not necessary to conduct cardiac tests prior to prescribing the drug.

Aside from her treatment for premature contractions on March 8-10, 1998, Barbara experienced other complications that caused her to seek emergency treatment on several occasions before her daughter Hannah Marie Huss was delivered on May 6, 1998. Although disputed by defendants at trial, Barbara, members of her family, and an acquaintance testified that Barbara experienced severe shortness of breath. Barbara testified that for two and one-half to three months before delivery, she had severe shortness of breath. On March 20, 1998, during a family outing, Barbara felt leaking and contractions five minutes apart. She thought that her water had broken. She testified that she also experienced shortness of breath. Barbara was placed on oxygen by emergency medical technicians and transported to a hospital. On April 5, 1998, Barbara felt uncontrollable leaking and sought treatment at a local emergency room. On Easter Sunday, April 12, 1998, Barbara experienced shortness of breath during a family dinner and once more sought treatment at an emergency room. In late April, Barbara was prescribed antibiotics for an ear infection. Barbara testified that in the weeks preceding Hannah's birth, she experienced such severe shortness of breath that she had trouble speaking and slept sitting up.

Barbara continued to see Dr. Giddens and the physicians at Memphis OB/GYN until the delivery of Hannah. She testified that she did not remember, however, when she obtained her last Terbutaline refill. When asked whether the date April 6, 1998 was correct, Barbara said: "It was in April sometime. I don't know the exact date." She recalled that she received 30 pills, or a one-week supply. While testifying, Barbara reviewed her own medical records. She was asked whether it was noted that she was still on Terbutaline on April 15. She indicated that the records said as much. When asked if she continued to take Terbutaline after this point, Barbara said yes. When asked whether she was taking Terbutaline on April 28, she also answered yes. Barbara's medical records indicate, however, that the drug was discontinued on April 21, 1998. A record from Barbara's treatment for ear infection, filled out on April 23, 1998, lists the medications Barbara was taking; Terbutaline is not listed. When asked how a four-week supply that should have run out in mid-April lasted so long, and how the final week's refill lasted well over two weeks, Barbara explained that she did not always take four pills per day as instructed, but skipped a dose if she was sleeping well. But she insisted that this seldom occurred, and she generally took Terbutaline as she was told. Barbara also testified that after Hannah's birth she still had one or two Terbutaline tablets "left over."

By May 5, 1998, Barbara was experiencing severe swelling in her legs. Dr. Giddens testified that at that time, Barbara had toxemia. Toxemia is also known as preeclampsia; this is high blood pressure during pregnancy. Toxemia can...