Kiddy v. Lipscomb

• Citation: 628 So.2d 1355
• Decision Date: 07 October 1993
• Docket Number: No. 91-CA-0091,91-CA-0091
• Parties: Georgia S. KIDDY v. Larry R. LIPSCOMB, M.D. and South Jackson Woman's Clinic, P.A.
• Court: United States State Supreme Court of Mississippi

Page 1355

628 So.2d 1355

Georgia S. KIDDY v. Larry R. LIPSCOMB, M.D. and South Jackson Woman's Clinic, P.A.

No. 91-CA-0091.

Supreme Court of Mississippi.

Oct. 7, 1993.

Rehearing Denied Jan. 20, 1994.

James H. Herring, Herring Long & Joiner, Canton, for appellant.

Jimmie B. Reynolds, Jr., Steen Reynolds Dalehite & Currie, Jackson, Michael F. Myers, Steen Reynolds Firm, Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

McRAE, Justice, for the Court:

This appeal arises from a December 20, 1990, order of the Hinds County Circuit Court denying Georgia S. Kiddy's motion for a new trial in a medical malpractice action against Dr. Larry R. Lipscomb, M.D. and the South Jackson Woman's Clinic, P.A. Finding that the circuit court abused its discretion under either M.R.C.P. 21 or 42(b) by severing Mrs. Kiddy's claims against a second physician involved in the incident, Dr. Milan Chepko, we reverse and remand with instructions that the two actions be joined pursuant to M.R.C.P. 20. We further take this opportunity to reiterate that pursuant to M.R.C.P. 59, when the trial court has had the opportunity to rule on a matter, particularly during trial or a hearing, this Court will consider an assignment of error on appeal regardless of whether it was raised in the motion for new trial.

I.

On August 22, 1987, Dr. Larry Lipscomb attempted to perform an abortion on Mrs. Georgia S. Kiddy, then six weeks pregnant, at the South Jackson Woman's Clinic. In his post-operative report, Dr. Lipscomb questioned whether the procedure had been successful, but assured Kiddy that there were no problems. According to the Clinic's records, Kiddy was instructed to return for a follow-up appointment on September 1, 1987. Kiddy, however, asserts that no such appointment was made.

Kiddy returned to the Clinic on September 4, concerned that she was still pregnant. She tested positive on the pregnancy test administered at that time. Dr. Lipscomb, however, told her that patients frequently tested positive at the follow-up visit and sent her home without further testing or care.

Kiddy continued to experience serious pain and bleeding. Suspecting that she was still pregnant, she administered two home pregnancy tests on September 26, 1987, both of which registered a positive reading. She called Dr. Lipscomb and saw him again on September 28, 1987. He told her to return a few days later for a second procedure. Instead, she went to a local hospital where still another pregnancy test showed positive results, indicating that the abortion had been incomplete.

Having lost faith in Dr. Lipscomb, Kiddy made an appointment at the New Woman's Clinic, where Dr. Milan Chepko attempted a second abortion on October 3, 1987. Kiddy suffered serious complications and was admitted to Mississippi Baptist Medical Center the next day. She was treated by Dr. Freda Bush, an obstetrician and gynecologist who was on call that evening. Kiddy was released on October 5. After further out-patient visits with Dr. Bush, Kiddy was readmitted to the hospital on October 10, 1987, where she was treated by Dr. Bush's associate, Dr. Beverly McMillan. She was released the next day, but again was taken to the emergency room on October 13, 1987. Dr. McMillan performed emergency surgery at that time, removing a large quantity of placental matter from Kiddy's uterus.

Kiddy filed suit against Dr. Lipscomb, and his solely-owned clinic, the South Jackson Woman's Clinic, P.A., on June 20, 1988. She alleged that on August 22, 1987, Dr. Lipscomb negligently failed to perform a complete abortion on her. Kiddy later amended her complaint to join Dr. Milan D. Chepko, M.D., of the New Woman's Clinic as a defendant because the cause of action against both doctors arose from the same transaction or occurrence and because Dr. Lipscomb owned a one-third interest in the New Woman's Clinic. Dr. Lipscomb and the South Jackson Clinic filed a motion to bifurcate the causes of action. He asserted that he would be unfairly prejudiced by the joinder of Dr. Chepko, who had been indicted in a highly-publicized child pornography case. Dr. Chepko joined in the motion, to which Kiddy objected. The trial court denied the motion, with the reservation that the motion would be granted if Dr. Chepko were convicted prior to the scheduled trial date. Upon Dr. Chepko's conviction, the trial court entered an amended order to sever the cases. Subsequently, Kiddy's case against Dr. Lipscomb was heard by a jury in November, 1990, which returned a verdict in his favor. The circuit court then denied Kiddy's motion for a new trial.

II.

Kiddy first asserts that the circuit court abused its discretion in severing her cases against Drs. Lipscomb and Chepko. She filed her initial complaint against only Dr. Lipscomb and the South Jackson Woman's Clinic. More than a year later, she was granted leave of court to amend her pleadings to join Dr. Chepko as a defendant pursuant to M.R.C.P. 19(a)(1) because the issues of liability and damages could not be separated between the doctors. ¹ Joinder probably should have been granted instead under M.R.C.P. 20. Since it is the severance of the defendant's trials that is at issue, we make no determination on the issue of joinder except to note that by allowing joinder under Rule 19(a)(1), the trial court apparently thought that the cases could not be tried separately.

On May 16, 1990, Dr. Lipscomb filed a motion to bifurcate the proceedings. He asserted that he would be prejudiced by any affiliation with Dr. Chepko, who had been indicted on child pornography charges. After Dr. Chepko was convicted, the circuit court ordered the actions severed pursuant to M.R.C.P. 21. ²

Kiddy asserts that the circuit court improperly granted the severance because the cases involve the same nucleus of common facts and arise from the same transaction or occurrence. We agree. The facts of the cases against the two physicians are too closely intertwined to warrant the time and expense of trying them separately. More importantly, allowing separate trials sets the scene for the two doctors to play a game of "divide and conquer." Dr. Lipscomb, without having to take any shots from Dr. Chepko, would be perfectly situated to point his finger at "the empty chair" and assert that all of liability for Kiddy's injuries stemmed from the second doctor's treatment. Dr. Chepko, at his trial, likewise without any opposition from Dr. Lipscomb, could then assert that Kiddy's injuries stemmed exclusively from the first procedure performed by Dr. Lipscomb. Bifurcation of the actions thus would prevent any jury from hearing all of the evidence relevant to Kiddy's injuries and the liability of the defendants and greatly increases the expense of litigation. Without both doctors as parties, the issues of liability and damages may be indeterminable. As we have stated, "there may be more than one proximate cause of an accident or injury, and where there is more than one proximate cause each of the concurrent efficient causes contributing directly to the accident or injury is the proximate cause thereof." Smith v. Dillon Cab Co., Inc., 245 Miss. 198, 206-206, 146 So.2d 879, 882 (1962). The Smith Court further explained that:

As a general rule, it may be said that negligence, in order to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, to as great an extent, and that such other cause is not attributable to the person injured. It is no defense to one of the concurrent tort feasors [sic] that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tort feasor [sic].

Id., quoting 65 C.J.S. 675, Negligence, Para. 110a. When there is more than one possible proximate cause of an injury, brought about by the negligence of more than one party, the purposes of the applicable rules best would be served by a single trial.

Despite his defense that Kiddy's damages flowed solely from the other physician's actions, Dr. Lipscomb asserted in his motion that he would be prejudiced by Dr. Chepko's involvement in the case. Under the circumstances, however, it would appear that retaining Dr. Chepko as a party would have been more advantageous than prejudicial to Dr. Lipscomb.

When applying our procedural rules governing severance, as well as joinder of parties or actions, we do not view individual rules in isolation. Rather, they must be considered in light of other applicable rules. Joinder of Dr. Chepko was appropriate under Rule 20, which provides for permissive joinder of parties "to promote trial convenience and expedite the final determination of disputes." Official Comment, Rule 20. Rule 20 requires only that the plaintiff's right to relief against each defendant arise from the same transaction or occurrence and that there is some question of law common to all of the parties. Id. Similarly, actions against Drs. Lipscomb and Chepko could have been consolidated under M.R.C.P. 42(a). Under these rules and the facts of this case, where parties or actions may be joined, denial of joinder or consolidation in the case sub judice would have been an abuse of discretion.

There is no showing that any party was prejudiced by the joinder of Dr. Chepko. However, the later severance of the claims against him served to prejudice Kiddy. Dr. Lipscomb certainly cannot claim prejudice since he was attempting to point the finger at Dr. Chepko on the issues of both liability and damages. It further would be contrary to the severance and separate...