King v. Singing River Health Sys.

• Decision Date: 27 May 2014
• Docket Number: No. 2012–CA–01449–COA.,2012–CA–01449–COA.
• Court: Mississippi Court of Appeals
• Parties: Rickey KING, Individually and as Executor of the Estate of Elizabeth Carol King, Appellant v. SINGING RIVER HEALTH SYSTEM, Dr. Lawrence Leake, Dr. Marilyn O. Mora and Emergency Room Group, Ltd., Appellees.

158 So.3d 318

Rickey KING, Individually and as Executor of the Estate of Elizabeth Carol King, Appellant

v.SINGING RIVER HEALTH SYSTEM, Dr. Lawrence Leake, Dr. Marilyn O. Mora and Emergency Room Group, Ltd., Appellees.

No. 2012–CA–01449–COA.

Court of Appeals of Mississippi.

May 27, 2014.

Rehearing Denied Oct. 21, 2014.

Certiorari Denied Feb. 12, 2015.

Lawrence Cary Gunn Jr., Hattiesburg, William T. Reed, Pascagoula, attorneys for appellant.

John A. Banahan, Jessica B. McNeel, Betty Caroline Castigliola, Brett K. Williams, Joshua Wesley Danos, Pascagoula, attorneys for appellees.

EN BANC.

Opinion

BARNES, J., for the Court:

¶ 1. In this medical-malpractice action, we must determine whether the trial court erred in excluding the testimony of an expert witness. The trial court granted summary judgment for the defendants because the plaintiff's expert was not qualified to testify to the standard of care of the defendant-doctors, and the expert's opinion that the plaintiff had more than a fifty percent chance of a better recovery lacked support in the medical literature. The plaintiff now appeals. Finding no reversible error, we affirm.

PROCEDURAL HISTORY

¶ 2. Elizabeth Carol King suffered a stroke

and was taken to the emergency room (ER) at Ocean Springs Hospital (the Hospital) in Ocean Springs, Mississippi. King was incapacitated as a result of the stroke. King filed two complaints in the Jackson County Circuit Court—the first against the Hospital and Dr. Marilyn Mora, an internist; the second against Dr. Lawrence Leake, the ER physician, and Emergency Room Group Ltd. King alleged the physicians failed to diagnose and treat the stroke properly. The actions were consolidated.

¶ 3. All defendants filed motions to exclude the testimony of King's experts: Dr. James E. Gebel, a neurologist; and Dr. Bryan P. Barrileaux Sr., an internist. The defendants also filed motions for summary judgment based on the premise that Dr. Gebel's testimony would be excluded. After hearing arguments, the trial court granted the defendants' motions to exclude Dr. Gebel's testimony. The trial court determined Dr. Gebel was not sufficiently familiar with the standard of care applicable to an ER doctor or an internist. The trial court further found Dr. Gebel's opinions were not based on reliable data. The trial court found Dr. Gebel was unable to cite to any medical literature to support his opinion that King would have had greater than a fifty percent chance of improvement if her stroke had been treated as she claims it should have been. Since King had no other proof to support her claim, the trial court granted the defendants' motions for summary judgment.

¶ 4. King¹ now appeals, asserting the trial court erred in excluding Dr. Gebel's testimony.

STATEMENT OF FACTS

¶ 5. On September 7, 2009, King was at her parents' home when she fell backward onto the couch and subsequently lost consciousness. King made a comment prior to falling that she thought she was having a stroke

. King was transported by ambulance to the Hospital's ER, where she was examined by Dr. Leake.

¶ 6. According to Dr. Leake's affidavit, King had “altered sensorium with a depressed level of consciousness.” Dr. Leake noted King's history included a new Xanax

prescription. At least six pills were missing from the prescription bottle. King was unable to communicate but did move in response to stimuli. Dr. Leake ordered lab work and a computerized-tomography (CT) scan, which was negative for any abnormalities. The lab work showed the presence of benzodiazepines, which was consistent with her Xanax prescription. Dr. Leake stated that King remained stable while in the ER. Dr. Leake diagnosed King with “acute encephalopathy [of unclear etiology] with depressed mental status” and “a history of and evidence of benzodiazepine overdose.” King's symptoms were not lateralized on one side of her body, as is common with normal stroke victims. Dr. Leake later learned that King had suffered a stroke, which he described as “a highly unusual stroke, most likely due to a rare anatomic variant.” Dr. Leake stated King never presented with certain symptoms that are usually present when a stroke has occurred.

¶ 7. King was admitted to the intensive-care unit (ICU) of the Hospital under the care of Dr. Mora. After examining King and the pertinent lab and test results, Dr. Mora concluded King suffered from “acute Xanax

overdose causing altered mental status.”

¶ 8. The next day an MRI was conducted on King, which revealed a rare ischemic stroke

, most likely due to a rare anatomic variant known as the artery of Percheron at the base of the brain. The record also refers to this type of stroke as a “basilar artery occlusion ” (BAO).

¶ 9. There is a medicine known as tissue plasminogen activator (tPA) that dissolves blood clots

that cause strokes. The Hospital touted this type of treatment on its informational website:

It is important to get to the hospital as soon as possible if you suspect a stroke

. Many large hospitals are now treating strokes caused by blood clots with clot dissolving medicines. These medicines can cause the symptoms to stop very quickly. They can prevent long-term disability or death. This treatment works only if the medicines are given within the first 3 to 6 hours after the stroke began.

¶ 10. There are also mechanical devices that can be placed into an artery to physically remove blood clots

. There was testimony that hospitals in New Orleans, Louisiana (within a helicopter's ride of the Hospital), employed such devices.

¶ 11. The stroke

left King severely incapacitated. On the modified Rankin Scale of zero to five, with zero representing minimal impairment and five representing total disability, King had a score of five and was unable to walk, talk, eat, or control her bodily functions. She died a little over three years after the stroke.

STANDARD OF REVIEW

¶ 12. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). Under Rule 56(c), the movant bears the burden of proving that no genuine issue of material fact exists. Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010). “[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Id. (citation and internal quotation marks omitted).

¶ 13. The appellate court reviews the trial court's grant of summary judgment de novo. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). The evidence will be “viewed in the light most favorable to the party against whom the motion has been made.” Id. at 174–75 (¶ 14) (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993) ); See also Hubbard v. Wansley, 954 So.2d 951, 956 (¶ 9) (Miss.2007) (rulings on summary-judgment motions are reviewed taking the evidence in the nonmoving party's favor).

¶ 14. According to Mississippi Rule of Evidence 702, a witness may testify as an expert if the witness is “qualified as an expert by knowledge, skill, experience, training, or education,” and “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

¶ 15. Trial court judges have a gate-keeping responsibility to assure a proposed expert's opinion has “a reliable basis in the knowledge and experience of the relevant discipline.” Worthy v. McNair, 37 So.3d 609, 614 n. 3 (Miss.2010) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). See also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

¶ 16. We review a trial court's determination as to the qualifications of an expert witness under our familiar abuse-of-discretion standard, Hubbard, 954 So.2d at 956 (¶ 11), which has been referred to in medical-expert cases as having “the widest possible discretion.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶ 16) (Miss.2007).

DISCUSSION

¶ 17. King argues Dr. Gebel should have been allowed to testify. Specifically, King contends the trial court erred in excluding Dr. Gebel based upon his lack of qualifications to testify as to the standard of care of the defendant-doctors and in finding Dr. Gebel's opinion was not based upon reliable data.

I. Standard of Care

¶ 18. The trial court ruled:

Dr. Gebel's curriculum vitae is replete with extensive training and experience in neurology and stroke evaluation and treatment; however, it does not indicate that he has ever been intimately connected with the field of emergency medicine. The Court finds that Dr. Gebel is not sufficiently familiar with the specialty of the defendant-doctors as required by Rule 702 of the Mississippi Rules of Evidence to render an opinion regarding the applicable standard of care.

¶ 19. We first note that the fact that Dr. Gebel is not certified as an ER doctor or a hospitalist is not dispositive. “There is no requirement that an expert in a medical-malpractice case be a specialist in the same area as the doctor about whom the expert is testifying in regard to the standard of care.” McDaniel v. Pidikiti, 39 So.3d 952, 956 (¶ 10) (Miss.Ct.App.2009) (citation omitted); see also Caldwell v. Warren, 2 So.3d 751, 757 (¶¶ 24–25) (Miss.Ct.App.2009) (One need not be board certified in a specialty to testify concerning the standard of care if the doctor is sufficiently familiar with that area of practice.). However, “[s]atisfactory familiarity with the specialty of the defendant doctor is ... required in order for an expert to testify as to the standard of care owed to the plaintiff patient.”...