McCarty v. Kellum, 91-CA-01046-SCT

Citation667 So.2d 1277
Decision Date28 September 1995
Docket NumberNo. 91-CA-01046-SCT,91-CA-01046-SCT
PartiesA.B. McCARTY and Elizabeth L. McCarty, individually, and as General Guardians of Lucas McCarty, a Minor v. Roy Bradley KELLUM, M.D. and Jackson Ob-Gyn Associates, P.A., a Mississippi Professional Association.
CourtUnited States State Supreme Court of Mississippi

Alan D. Lancaster, William Liston, Liston & Lancaster, Winona, W. Dean Belk, Jr., Clark Davis & Belk, Indianola, for Appellants.

Whitman B. Johnson, III, Currie Johnson Griffin Gaines & Myers, Jackson, Jimmie B. Reynolds Jr., Steen Reynolds & Dalehite, Jackson, for Appellees.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

On February 5, 1988, A.B. McCarty and his wife, Elizabeth McCarty ("Chuck" and "Elizabeth"), in their individual and representative capacities as the parents and general guardians of Lucas McCarty, their minor son ("Lucas"), filed an original complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against Paracelsus Woman's Hospital, Inc. ("Woman's Hospital"), Roy Bradley Kellum, M.D. ("Kellum") and his professional association, Jackson OB-GYN Associates, P.A. The complaint charged that Dr. Kellum, individually and as the agent of his professional association, and the Woman's Hospital, acting by and through its nurses, were negligent and therefore liable for the severe brain damage sustained by Lucas McCarty during his delivery.

Thereafter, the defendants filed their separate answers, denying that the health care provided to the minor plaintiff deviated from the applicable standard of care, and averring that they were not liable for the brain injury sustained by Lucas McCarty. The Plaintiffs filed a motion for leave to take the depositions of the Defendants' experts on May 20, 1991. This motion was granted; however, the trial court limited the depositions to the information allowed by Rule 26(b)(4) and specifically restricted the Plaintiffs from delving into any bias or interest of the experts.

The Plaintiffs entered into a compromise settlement agreement with the Woman's Hospital, resulting in its dismissal from the lawsuit. The lawsuit then proceeded only against Dr. Kellum and his professional association.

On August 19, 1991, the trial began in the First Judicial District Court of Hinds County, Mississippi. After learning and considering the evidence presented, the jury returned a verdict for the Defendants. On September 3, 1991, the trial court entered an Order of Final Judgment for the Defendants, dismissing Plaintiff's complaint with prejudice.

A motion for new trial was filed on September 3, 1991, and later denied by Judge Gibbs on September 17, 1991.

Aggrieved by the findings and actions of the trial court, the Plaintiffs perfected this appeal and assign the following as error:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE PLAINTIFFS' MOTION TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE MADE PURSUANT TO RULE 15(b) OF THE MISSISSIPPI RULE OF CIVIL PROCEDURE SO AS TO AVER THAT DR. KELLUM DEVIATED FROM THE APPLICABLE STANDARD OF CARE IN CARRYING OUT A TRIAL OF FORCEPS AT THE TIME WHEN HE THOUGHT THAT THE FAILURE OF THE FETUS TO PROGRESS IN THE BIRTH CANAL COULD BE DUE TO CEPHALOPELVIC DISPROPORTION AND THAT THE SUBSEQUENT TRIAL OF FORCEPS CAUSED OR CONTRIBUTED TO THE INJURIES SUSTAINED BY LUCAS MCCARTY.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN LIMITING THE SCOPE OF PLAINTIFFS' INQUIRY ON EXPERT WITNESSES' DEPOSITIONS TO THOSE MATTERS SPECIFIED IN RULE 26(b)(4)(A)(i), MISSISSIPPI RULES OF CIVIL PROCEDURE AND SPECIFICALLY PROHIBITING INTERROGATION AS TO MATTERS INVOLVING THE EXPERT'S POTENTIAL INTEREST, BIAS AND/OR QUALIFICATIONS.

III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTIONS D-3 AND D-5 OVER THE OBJECTION OF THE PLAINTIFFS THAT THE INSTRUCTIONS WERE ABSTRACT STATEMENTS OF LAW AND NOT FACT SPECIFIC, FAILED TO SET FORTH A STANDARD WHICH WOULD ENABLE THE JURY TO DETERMINE IF THE DEFENDANT KELLUM ACTED AS A MINIMALLY COMPETENT OBSTETRICIAN AND ALLOWED THE JURY FREEDOM TO SEARCH OUT OR "ROVE THE WATERFRONT" IN ORDER TO FIND THAT THE DEFENDANT KELLUM ACTED AS A MINIMALLY COMPETENT OBSTETRICIAN AT THE TIMES IN QUESTION.

STATEMENT OF THE FACTS

On February 7, 1982, Elizabeth McCarty was admitted to Woman's Hospital to have a baby. Elizabeth's pregnancy was normal and without incident. There was no particular cause for concern other than normal concern for a woman during pregnancy and at the time of delivery.

At approximately 12:30 p.m. on February 7, Dr. Kellum performed an artificial rupture of membranes to aid the progress of delivery. This also allowed Dr. Kellum to apply a scalp electrode so that the child's fetal heart rate could be monitored. The fetal heart monitor never showed any indications that there was any acute stress-causing event. The amniotic fluid was also clear, indicating that the fetus was well. Elizabeth's labor progressed normally. She was given an epidural anesthetic to ease the pain associated with childbirth. The epidural was removed at 4:20 p.m. so that Elizabeth would feel more of an urge to push, thereby being better able to help aid in the delivery of the child. Again, at that time, the fetal heart monitor did not show signs of fetal distress.

Elizabeth had been "complete" that is, dilated to ten centimeters for one and a half to two hours. There was conflicting testimony as to whether Elizabeth was so fatigued that she was unable to push. In either case, Dr. Kellum made the decision to make a trial of forceps to complete the delivery of the child. A trial of forceps involves the application of forceps to baby's head after it reaches a certain point in the mother's body in order to pull on the baby to help the mother deliver The baby was resuscitated and began breathing on his own within thirty minutes. After approximately thirty hours, Lucas began having seizures.

the baby. At approximately 5:34 p.m., Dr. Kellum began the application of the forceps. The actual pulling process with the forceps took 3 to 5 minutes. During that time Dr. Kellum pulled approximately 15 seconds and then waited approximately 30 seconds and pulled again for 15 seconds. When no descent of the child's head occurred, the procedure was abandoned in favor of a cesarean section. At 5:42 p.m., the scalp electrode was reapplied to the baby's head; it showed severe fetal bradycardia, which is a deep slowing of the fetal heart rate. At 5:53 p.m., Lucas McCarty was delivered. At the time of delivery, Lucas' heart rate was zero. No forceps marks or indentations on Lucas were recorded.

Medical experts in the field of obstetrics and gynecology were called on behalf of both parties, as well as Dr. Kellum himself. All agreed that the application of forceps on the fetus carries the risk of fetal bradycardia due to the stretching and/or pulling of the baby's head, which in turn has an effect on the vagal nerve, which controls heart rate. Dr. Kellum testified that he used the forceps because he thought Elizabeth was too tired to push. Dr. Kellum opined that Lucas had a severe bradycardia.

Expert testimony revealed that Lucas' injuries occurred at the time of the application of forceps and were not linked to congenital, inherited metabolic disorders or neurological deficits. The Defendants' experts testified that Lucas' brain damage was caused by a heart attack. The Plaintiffs alleged that the damage to Lucas' brain was caused by a negligent application of forceps.

Lucas was described as being a young man who is trapped in a body that will not respond to his direction with severe motor skill impairment; "a good brain in a bad body."

DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE PLAINTIFFS' MOTION TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE MADE PURSUANT TO RULE 15(b) OF THE MISSISSIPPI RULE OF CIVIL PROCEDURE SO AS TO AVER THAT DR. KELLUM DEVIATED FROM THE APPLICABLE STANDARD OF CARE IN CARRYING OUT A TRIAL OF FORCEPS AT THE TIME WHEN HE THOUGHT THAT THE FAILURE OF THE FETUS TO PROGRESS IN THE BIRTH CANAL COULD BE DUE TO CEPHALOPELVIC DISPROPORTION AND THAT THE SUBSEQUENT TRIAL OF FORCEPS CAUSED OR CONTRIBUTED TO THE INJURIES SUSTAINED BY LUCAS MCCARTY.

The original complaint stated the child suffered permanent "hypoxic brain damage" as a result of the Defendants negligence.

At the close of the Defendant's case, the Plaintiffs moved under Miss.R.Civ.P. 15(b) to amend the complaint so as to conform to the evidence presented in the case. The following colloquy occurred between Plaintiffs' counsel, Mr. Liston, and defense counsel, Mr. Johnson:

BY MR. LISTON: May it please the Court, comes now the plaintiffs and move pursuant to Rule 15-B of the Mississippi Rules of Civil Procedure to amend the complaint to conform to the evidence that has been introduced in this case in the following respect: That Dr. Kellum deviated from the applicable standard of care, and that he carried out a trial of forceps when he thought that the failure of the delivery to progress could be CPD ... and that as a result thereof, the forceps was carried out and the injuries occurred which are sued on herein.

BY THE COURT: Let me understand what you're saying, Mr. Liston. You are alleging now that there's proof to show that there was a deviation from the standard of care by using the trial or forceps from the CPD-- ... is that correct.

BY MR. LISTON: Yes, sir, and in addition to the other areas of deviations as we have already set forth in the pleadings.

BY THE COURT: All right. Mr. Johnson.

BY MR. JOHNSON: I'm going to object. I object to that, Judge, because I moved for a directed verdict at the close of the plaintiffs case. The plaintiffs told us in response to a motion in limine that I had filed and also told us during the motion in limine prior to the time...

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