Kronfol v. Johnson

Decision Date30 April 2019
Docket NumberNO. 2017-CA-00542-COA,2017-CA-00542-COA
Parties Ned O. KRONFOL, M.D., Appellant v. Barbara S. JOHNSON, Appellee
CourtMississippi Court of Appeals

ATTORNEYS FOR APPELLANT: R.E. PARKER JR., CLIFFORD C. WHITNEY III, PENNY B. LAWSON, VICKSBURG

ATTORNEY FOR APPELLEE: CHYNEE ALLEN BAILEY

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Barbara Johnson brought a medical malpractice suit against Dr. Ned Kronfol for injuries she suffered from an infected catheter in her dialysis port. After a trial on the matter, the jury found Dr. Ned Kronfol one-hundred percent responsible for Barbara Johnson's injuries and awarded Johnson a total of $ 271,000 in damages.

¶2. Dr. Kronfol now appeals the Leflore County Circuit Court's final judgment and jury verdict. Dr. Kronfol also appeals the trial court's order denying his motion for summary judgment. Finding no error, we affirm.

FACTS

¶3. In 2007, Johnson was diagnosed with kidney failure

. As a result of her diagnosis, Dr. John Lucas III, a surgeon at Greenwood-Leflore Hospital (GLH) who specializes in dialysis-access surgeries, performed a surgical procedure in which he created a fistula on Johnson's right arm at her wrist. Dr. Lucas explained that a fistula is a "high-flow vein ... close to the skin [and] connected directly to [an] artery that has a lot of flow," which allows the vein to tolerate kidney dialysis three times a week. In 2010, due to clotting issues, Dr. Lucas performed another surgical procedure, placing a fistula in Johnson's left arm at her elbow.

¶4. From 2007 through May 2013, Johnson received dialysis through a port in her right arm, and later left arm, approximately three times a week at Fresenius Clinic. Dr. Ned Kronfol, a nephrologist who treated Johnson at the Fresenius Clinic, was in charge of her dialysis and kidney care

.1

¶5. On April 12, 2013, Johnson was unable to receive dialysis due to access issues with the dialysis port in her left arm. Staff members from the Fresenius Clinic referred her to GLH. Dr. Donald Russell, an interventional radiologist at GLH, attempted to perform a de-clot of Johnson's dialysis port, but he was unable to do so. Dr. Russell then placed a temporary2 dialysis port in Johnson's internal jugular (neck) to allow her to be dialyzed. Johnson continued to receive dialysis through the temporary port in her neck.

¶6. On April 16, 2013, Dr. Lucas performed a surgical procedure on Johnson to try to restore flow in her fistula

in her left arm. Dr. Lucas testified that he was not able to restore the flow to his satisfaction. As a result, Dr. Russell performed a fistulogram procedure that same day, where he attempted to open and stretch areas of Johnson's fistula. Dr. Lucas testified that this procedure was also unsuccessful.

¶7. On April 30, 2013, Dr. Lucas surgically created a new fistula

for Johnson in her right arm. Dr. Lucas explained that since most fistulas require around six weeks to mature, Johnson was unable to immediately utilize that fistula.3

¶8. On May 6, 2013, after receiving dialysis at the Fresenius Clinic, Johnson presented to the emergency room (ER) at Delta Regional Medical Center complaining of severe pain and swelling in her face. Johnson was treated by Dr. Xander Buenafe, a nephrologist, who diagnosed her with sepsis with tachycardia

arising from an infected hemodialysis 4 catheter in her internal jugular (neck). Johnson received treatment at the hospital and was released on May 15, 2013.

¶9. On August 21, 2014, Johnson filed a medical malpractice suit against Dr. Lucas and Dr. Russell, alleging negligence in their care, treatment, and usage of Johnson's hemodialysis catheter

. On September 17, 2014, Johnson amended her complaint to include GLH as a defendant. On May 8, 2015, Johnson sent Dr. Kronfol a notice of intent to sue, and on July 8, 2015, she amended her complaint to add Dr. Kronfol as a defendant.5

¶10. On November 4, 2015, Dr. Kronfol filed a motion for summary judgment and argued that Johnson failed to file her medical malpractice claim within the two-year statute of limitations as prescribed by Mississippi Code Annotated section 15-1-36(2) (Rev. 2012). In his motion, Dr. Kronfol also argued that summary judgment was proper on the grounds of judicial estoppel and lack of an expert. Dr. Kronfol claimed that Johnson knew or should have known of his alleged negligence on May 6, 2013, the day Johnson was diagnosed with sepsis, because he had been her nephrologist since 2007 and had referred her to GLH, where she was seen by Dr. Lucas and Dr. Russell. Dr. Kronfol therefore argues that Johnson's May 8, 2015 notice of intent to sue and July 8, 2015 amended complaint adding Dr. Kronfol as a defendant were untimely and should be barred.

¶11. On January 20, 2016, the trial court entered an order denying Dr. Kronfol's motion for summary judgment. In its order, the trial court stated that "Johnson gave deposition testimony that she saw Dr. Kronfol or his nurses twice a week for dialysis." The trial court also acknowledged that when Johnson was asked if Dr. Kronfol sent her to GLH because his staff was having problems dialyzing her, she answered, "[y]es, that's it." However, the trial court opined that "reasonable minds can differ" as to whether Johnson's deposition testimony showed that she knew or should have known of Dr. Kronfol's alleged negligence in her injuries. The trial court explained that "[a] full reading of the deposition supports [Johnson's] contention that she thought that only Dr. Lucas and Dr. Russell were involved in the installation of her temporary catheter." The trial court therefore ruled that since a genuine issue of material fact existed as to when Johnson knew of Dr. Kronfol's alleged negligence, summary judgment was improper.

¶12. A jury trial was held on December 12, 2016. After the trial, the jury returned a verdict for Johnson and awarded her $ 225,000 in noneconomic damages and $ 46,000 in economic damages. The jury found that Dr. Kronfol was 100% responsible for Johnson's injuries. The trial court entered a final judgment and jury verdict on December 21, 2016. Dr. Kronfol then timely filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which the trial court denied. Dr. Kronfol now appeals.

¶13. On appeal, Dr. Kronfol asserts sixteen assignments of error, which we quote as follows:

1. Whether the trial court erred in denying summary judgment on the statute of limitations grounds.
2. Whether the trial court erred in failing to grant the Defendant's Daubert6 challenge to Johnson's expert's reliance upon "guidelines," which were not the standard of care, were outdated and were not scientifically valid.
3. Whether the trial court abused its discretion by allowing Johnson's expert to testify about undisclosed opinions.
4. Whether the trial court erred in allowing a treating physician to offer expert opinions about a temporary catheter causing infection, when he was not designated to so testify.
5. Whether the trial court erred in preventing defense counsel from informing the jury that Johnson had alleged that Dr. Lucas and Dr. Russell were negligent and grossly negligent in the treatment of Johnson, which caused or contributed to her injuries.
6. Whether the trial court erred in excluding the testimony of Dr. Lucas regarding the length of time to leave a temporary catheter in place.
7. Whether the trial court erred in excluding deposition testimony of Dr. Russell, which deposition was noticed by counsel for Johnson.
8. Whether the trial court erred in allowing Johnson's counsel to cross examine witnesses and parties with statements made by other witnesses in their depositions.
9. Whether the trial court erred in not allowing into evidence the package insert of the temporary catheter used on Ms. Johnson.
10. Whether the trial court erred in sustaining Johnson's objection to Dr. Kronfol's response to a cross examination question regarding medical authorities and granting a curative instruction.
11. Whether the trial court erred in allowing into evidence a hospital bill as the proper predicate had not been laid for its for its introduction.
12. Whether the trial court erred in failing to grant Defendant's instruction on equally probable causes.
13. Whether the trial court erred in denying Dr. Kronfol's motion to summons a new jury panel.
14. Whether the trial court erroneously denied Dr. Kronfol's Batson7 challenge to the all-African American jury and improperly refused to quash the jury panel.
15. Whether the trial court erred in not granting a directed verdict/JNOV for Dr. Kronfol.
16. Whether the verdict was against the overwhelming weight of the evidence, thus entitling Dr. Kronfol to a new trial.

DISCUSSION

I. Summary Judgment

¶14. Dr. Kronfol argues that since Johnson failed to bring her medical-malpractice claim within the two-year statute of limitations, the trial court erred in denying his motion for summary judgment. In his appellate brief, Dr. Kronfol asserts that he was "Johnson's treating nephrologist and saw [her] at least twice per week since 2007." Dr. Kronfol also asserts that at the very latest, Johnson possessed actual notice of her claim against Dr. Kronfol on May 6, 2013, the date that Johnson received her sepsis diagnosis. Dr. Kronfol therefore maintains that the statute of limitations on Johnson's claim against him expired on May 6, 2015, and that as a result, Johnson's May 8, 2015 notice of intent and subsequent amended complaint were not timely filed and therefore are barred.

¶15. As a procedural matter, the record shows that on May 8, 2015, Johnson sent Dr. Kronfol a notice of intent to sue. On July 8, 2015, Johnson amended her complaint to add Dr. Kronfol as a defendant. "The medical negligence statute does provide for a sixty-day tolling period once notice has been given." Arceo v. Tolliver , 19 So.3d 67, 73 (¶ 24) (Miss. 2009) (citing Mississippi Code Annotated section 15-1-36(15) ).8 The supreme court has held...

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3 cases
  • Murphy v. William Carey Univ.
    • United States
    • Mississippi Court of Appeals
    • August 11, 2020
    ...The standard of review to determine whether the circuit court erred by permitting expert testimony is an abuse of discretion. Kronfol v. Johnson , 283 So. 3d 1162, 1173 (¶22) (Miss. Ct. App. 2019), cert. denied , 283 So. 3d 733 (Miss. 2019). The Appellees contend that Murphy failed to inclu......
  • Sumrall v. Singing River Health Sys.
    • United States
    • Mississippi Court of Appeals
    • April 14, 2020
    ...standard of care. ¶20. The standard of review for the admission or exclusion of expert testimony is abuse of discretion. Kronfol v. Johnson , 283 So. 3d 1162, 1173 (¶22) (Miss. Ct. App. 2019) (citing Patterson v. Tibbs , 60 So. 3d 742, 748 (¶19) (Miss. 2011) ), cert. denied , 283 So. 3d 733......
  • Robinson v. Singh
    • United States
    • Mississippi Court of Appeals
    • April 21, 2020
    ...that there are genuine issues of material fact, the pretrial ruling is "rendered moot" by a subsequent trial on the merits. Kronfol v. Johnson , 283 So. 3d 1162, 1173 (¶¶19-20) (Miss. Ct. App. 2019), cert. denied , 283 So. 3d 733 (Miss. 2019). "When ... [the trial] court has determined that......

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