Latham v. Hayes, 55769

• Decision Date: 24 September 1986
• Docket Number: No. 55769,55769
• Citation: 495 So.2d 453
• Parties: Kathryn Deborah LATHAM v. Dr. Thomas William HAYES, M.D. and Dr. Myron W. Lockey, M.D.
• Court: Mississippi Supreme Court

Page 453

495 So.2d 453

Kathryn Deborah LATHAM v. Dr. Thomas William HAYES, M.D. and Dr. Myron W. Lockey M.D.

No. 55769.

Supreme Court of Mississippi.

Sept. 24, 1986.

Rehearing Denied Oct. 29, 1986.

Jim Brantley, Paul Snow, Jackson, for appellant.

C.R. Montgomery, Montgomery, Smith-Vaniz & McGraw, Edward Ellington, Thomas A. Bell, Larry D. Moffett, Daniel, Coker, Horton & Bell, Jackson, for appellees.

En Banc.

GRIFFIN, Justice, for the Court:

This medical malpractice case comes to the Court from the Circuit Court of the First Judicial District of Hinds County Mississippi. At the conclusion of the plaintiff's case-in-chief, the trial court granted a directed verdict for the defendants. We affirm.

In the Spring of 1975, Kathryn Latham began to experience problems with her left ear. It drained a malodorous, yellowish pus, to which she applied alcohol. During the Summer, she also suffered from dizziness, and at this point decided to seek professional medical care. As an employee of the University Medical Center, she visited the Employee's Health Clinic; it, in turn, referred her to the Medical Center's E.N.T. Clinic. A doctor at the E.N.T. Clinic, conducted a hearing test and ordered x-rays, determining as a result that Latham had a "dead ear". Moreover, ear trouble was nothing new to Latham; during her youth, she had polyps removed on three occasions, and developed "swimmer's ear" annually.

On the initial examination, doctors also determined that the left ear again contained polyps. On several occasions thereafter the doctors attempted to remove the polyps at the Clinic, but the procedure was unsuccessful. Dr. Myron Lockey, a defendant, whom Latham called as an adverse witness, testified that on August 11, both he and Dr. Thomas Hayes, the other defendant, informed Latham that she had a "serious problem", which required her admission to the hospital. At trial, Latham denied that either doctor had made such a statement to her; rather, she knew only that the doctors were going to remove the polyps in what she believed to be a "simple operation". In addition, although she had signed a consent form for the surgery, she testified that no one had advised her either of the procedure involved or of the risk to the seventh cranial nerve, which controls the muscles of the face. She did state, however, that the doctors had told her that the polyps were large, and needed to be removed.

On August 19, 1975, Drs. Hayes and Mokhtari, who were then in their third and first years of E.N.T. residency, respectively, operated on Latham. (Service of process failed on Dr. Mokhtari; after his residency, he returned to Iran). Dr. Lockey was also present, periodically, during the operation in his capacity as professor of otolaryngology (ear, nose and throat). During surgery, whose field was behind the ear and not through the ear canal itself, Drs. Hayes and Mokhtari discovered a cholesteatoma, the growth of which had created a direct opening to the brain, a life-threatening situation. In removing the cholesteatoma, the adjacent seventh cranial nerve was damaged, which paralyzed the left side of Latham's face. As a result of this permanent injury, Latham has undergone numerous operations, conducted by a plastic surgeon.

On these facts, the plaintiff alleges various errors in the trial of the case. At trial, Latham relied upon the testimony of Dr. Lockey, in his capacity as an expert in the field of otolaryngology, to establish the standards for informed consent and duty of care in Jackson, Mississippi, on August 19, 1975. Otherwise, Latham was unable to procure an expert witness in the treatment of ear, nose and throat disorders.

Latham assigns error to the rulings of the trial court, which repeatedly sustained the defense's objections to the content of Latham's hypothetical questions. Latham argues that the trial court, in effect, required her to include in her hypotheticals to Dr. Lockey all of the facts which had thus far been introduced into evidence, though some of these facts were in conflict. Consequently, Latham contends that the witness invaded the province of the jury by sorting through the conflicting evidence, using his own judgment, to produce his answers.

The following exchanges reflect the basis for the appellant's contention:

Q My question is, did the proper standard of care of ENT surgeons in August, 1975, in Jackson, Mississippi, concerning informed consent require that doctor to fully inform that patient of the risks of the operation? Is that true?

A ... I acknowledge that it is proper for an ear, nose and throat doctor in Jackson during that time to tell the patient what they suspected, what they plan to do and that the facial nerve comes through the ear and that you are going to make every effort not to damage it.

Q Now I want you to assume that the ENT doctor on that date of August 18, 1975, in Jackson, Mississippi, failed to mention the nerve. I want you to assume those facts to be true, understand?

A I do understand what you are saying, yes.

Q Assuming those facts to be true, would your opinion be, then, that if that doctor failed to do that, he would have violated the standard concerning informed consent in Jackson, Mississippi, on August 18, 1975?

At this point, both defendants objected; the court sustained the objections, stating that hypothetical questions required all of the facts. The plaintiff continued:

Q Dr. Lockey, assume that a patient who went into the clinic about August of 1975 had a diagnosis of otitis media like she did in this case, and assume that when the time came for the doctor to inform the patient of the operation and procedure and the risks, assume that the only thing that the doctor mentioned was, "We are going to remove your polyps," and assume that nothing was said about the disease they thought she had and nothing was said about the procedure of the left tympanomastoidectomy; nothing was said about the nerve. Now, assuming all those facts to be true, what is your opinion concerning whether or not the ENT doctor on that date breached the standard of care concerning informed consent in Jackson, Mississippi?

Again, the defendants objected to the incomplete nature of the hypothetical, and the court sustained the objection. the plaintiff then asked:

Q All right, let me ask the same question. Assume that even though she signed the consent form, it was blank at the time she signed it and nobody mentioned the word, left tympanomastoidectomy; assume that no one told her they were going to do a tympanomastoidectomy; assume those facts to be true, what would your opinion be regarding violation of the consent?

Again, the court sustained an objection on the same ground. Then the plaintiff offered more facts on which to predicate his question regarding the standard of informed consent:

Q Let me ask you to assume further that all the doctor did at the time was say, "All we are going to do is remove your polyps"; assume further that the patient did know what the polyp removal operation entailed and that all she understood was the polyp removal operation; assume that the doctor did not tell her anything about a cholesteatoma; assume that the doctor did not tell her anything about a tumor; assume that the doctor did not ever tell her that her facial nerve might be damaged and injured for the rest of her life; assume that the doctor did not say that it would be a serious operation--just a serious polyp removal; assume further that if the doctor did tell her it was a left tympanomastoidectomy, the patient would not have allowed the doctor to do the operation; assume further that if the doctor did tell her it would be a serious tympanomastoidectomy, she would have found a qualified doctor who would not cut a nerve during the operation; assuming those facts to be true, what would be your opinion regarding the standard?

At this juncture, defense counsel objected, arguing for the inclusion of the plaintiff's medical records, the plaintiff's previous testimony, and the witness's previous testimony into the question. Although the court sustained the objection only as to the witness's previous testimony, the plaintiff then asked:

Q Assuming that all the medical records that have been introduced in evidence and assuming all your previous testimony concerning informed consent and assuming all of the facts regarding Kathy Latham's testimony to be true ... assuming all that to be true, Doctor, what is your opinion?

A Assuming that everything involved that I've heard so far, this patient was informed.

Significantly, just prior to this final exchange between the plaintiff's counsel and Dr. Lockey, Dr. Lockey said: "I am totally confused. You make an assumption and you come along and say 'further assuming' and 'further assuming'--are we still keeping the original--I am lost." Obviously, the piecemeal fashion by which the plaintiff had phrased the hypothetical in an attempt to satisfy the defense's proper objections served only to obscure the factual basis of the hypothetical for the expert witness.

The law concerning the content of hypothetical questions posed to an expert witness at trial is well settled in Mississippi. Where facts are disputed, a party may state those facts consistent with his theory of the case in a hypothetical question; yet, the question may not omit material, undisputed facts. Strickland v. M.H. McMath Gin, Inc., 457 So.2d 925, 928 (Miss.1984), Magnolia Hospital v. Moore, 320 So.2d 793, 799 (Miss.1975). The trial court enjoys a wide discretion in permitting or rejecting a hypothetical question, particularly with regard to whether it encompasses the facts in evidence. Cadillac Corporation v. Moore, 320 So.2d 361, 366 (Miss.1975). In addition, the trial court's discretion is not to be overridden, absent a clear showing that such discretion has been "wrongfully exercised." Providence Washington Insurance Co. v. Weaver, 242 Miss. 141, 153, 133 So.2d 635, 640 (1961)...