McIlwain v. Natchez Cmty. Hosp., Inc., 2013–CA–00572–SCT.

• Decision Date: 03 September 2015
• Docket Number: No. 2013–CA–00572–SCT.,2013–CA–00572–SCT.
• Parties: Jennifer McILWAIN, Individually and for and On Behalf of the Wrongful Death Beneficiaries of Hunter McIlwain, a Minor, Deceased v. NATCHEZ COMMUNITY HOSPITAL, INC., Jennifer Vermaelen Russ, M.D., Natchez Pediatric Clinic, PLLC., and Michael L. Wheelis, M.D.
• Court: Mississippi Supreme Court

178 So.3d 678

Jennifer McILWAIN, Individually and for and On Behalf of the Wrongful Death Beneficiaries of Hunter McIlwain, a Minor, Deceased
v.
NATCHEZ COMMUNITY HOSPITAL, INC., Jennifer Vermaelen Russ, M.D., Natchez Pediatric Clinic, PLLC., and Michael L. Wheelis, M.D.

No. 2013–CA–00572–SCT.

Supreme Court of Mississippi.

Sept. 3, 2015.
Rehearing Denied Dec. 10, 2015.

178 So.3d 681

Everett T. Sanders, Claude Pintard, Scott J. Pintard, attorneys for appellant.

Clifford C. Whitney, III, R.E. Parker, Jr., Vicksburg, L. Carl Hagwood, Carrie Rice McCormick, attorneys for appellees.

Before RANDOLPH, P.J., KING and COLEMAN, JJ.

RANDOLPH, Presiding Justice, for the Court:

¶ 1. This is a medical malpractice case involving the death of two-year-old Hunter McIlwain. Plaintiff filed against two doctors and their respective employers; however, because only claims of vicarious liability were alleged against the employers, we will discuss the doctors only. We affirm the trial court's grant of Dr. Russ's Motion for Judgment Notwithstanding the Verdict (JNOV), because Plaintiff's expert failed to articulate the standard of care for a minimally competent pediatrician. However, we find that the trial court improperly granted Dr. Wheelis's motion for JNOV. We reverse that judgment of the trial court and remand for a new trial.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of June 18, 2001, Dusty McIlwain brought his two-year-old son Hunter to the Natchez Community Hospital emergency room because Hunter had been vomiting, crying, and complaining of pain. Dr. Michael Wheelis, the emergency room doctor, knew Dusty and previously had worked with Carol McIlwain (a nurse), Dusty's mother and Hunter's grandmother. Dr. Wheelis was aware that Hunter had suffered a subarachnoid hemorrhage previously as a result of a motor vehicle accident. That night, Dusty and Carol McIlwain informed Dr. Wheelis only that Hunter had abdominal

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pain and had vomited. Dr. Wheelis did not observe any neurological symptoms.

¶ 3. Dr. Wheelis testified that the triage nurse took a medical history when Hunter was first brought to the ER. Dr. Wheelis testified that he also took a history. Wheelis testified that the nurse noted the prior accident on the triage form. Under past medical history, Dr. Wheelis noted that Hunter had suffered a subarachnoid hemorrhage from a motor vehicle accident prior to June 2001. Dr. Wheelis also made a notation about a "subarachnoid bleed" in a blank space on the form. After Dr. Wheelis conducted a physical examination of Hunter, he made a preliminary diagnosis of "possible new onset of diabetes. Gastroenteritis." His differential diagnosis was "gastroenteritis, new onset diabetes and dehydration." Dr. Wheelis ordered lab work and chest and abdominal x-rays. Dr. Wheelis did not order a computerized axial tomography (CT) scan of Hunter's head. Dr. Wheelis's recorded impressions were acute abdominal pain, dehydration, hyperglycemia,¹ hypokalemia.² Dr. Wheelis conceded at trial that Hunter had no diarrhea, a common symptom of gastroenteritis, while at home in the care of his father and grandmother, nor in the few hours Hunter was observed in the emergency room.

¶ 4. After deciding that Hunter should be kept overnight in the hospital for observation, Dr. Wheelis, who had no authority to admit patients, spoke with Dr. Russ, a pediatrician, at the request of the family, at approximately 2:10 a.m. After conferring, Drs. Russ and Wheelis diagnosed Hunter with dehydration and gastroenteritis.

¶ 5. In the orders signed by Dr. Wheelis, he instructed that Hunter's vital signs should be checked, at a minimum, every four hours. Hunter was admitted at 2:30 a.m. to a regular floor in the hospital. At 7:35 a.m., Hunter was found nonresponsive and twitching, with a temperature of 103 degrees. Nursing personnel paged Dr. Jennifer Russ, and she arrived at the hospital at approximately 7:54 a.m.

¶ 6. By the time she arrived at the hospital, Dr. Russ noted that Hunter's temperature was 103.1, he was tachycardic, and his blood pressure was almost undetectable. A code blue was called at approximately 8:06 a.m. Dr. Russ intubated Hunter because he was having trouble breathing. Hunter was then moved to the intensive care unit (ICU).

¶ 7. Believing that Hunter suffered from sepsis due to a ruptured appendix, Dr. Russ consulted Dr. Keith Smith,³ who chose to do an exploratory laparotomy. Although there was nothing wrong with Hunter's appendix, Smith removed it during surgery.⁴

¶ 8. At that point, Dr. Russ became concerned about meningitis. Before she could order a spinal tap to test for meningitis, Dr. Russ was required to order a CT scan of Hunter's head to make sure he did not have increased intracranial pressure. The CT scan was ordered at approximately 11:35 a.m. Dr. Russ received the results at approximately 2:45 p.m.

¶ 9. A subarachnoid bleed was discovered following the CT scan of Hunter's head.

178 So.3d 683

After the bleed was discovered, Dr. Russ began the process of transferring Hunter to the pediatric intensive care unit (PICU) at the University of Mississippi Medical Center (UMMC).

¶ 10. Hunter was transferred to UMMC at 4:00 p.m. and arrived at approximately 7:40 p.m. Upon arrival, Hunter's Glasgow Coma Scale was three, and his pupils were unreactive. The UMMC staff determined that the "C.T. of the head obtained, because-was being considered secondary to suspicion of meningitis. C.T. reveals blood in third and fourth ventricle. There was additional density between the interior lobe suggestive of an aneurysm." After Hunter's condition failed to improve, Hunter was pronounced dead at 11:08 a.m. the next morning.

¶ 11. On September 4, 2002, Jennifer McIlwain, Hunter's mother and Dusty's ex-wife, filed suit in the Circuit Court of the First Judicial District of the Hinds County against Natchez Community Hospital, Dr. Russ, Natchez Pediatric Clinic, Dr. Wheelis, Dr. Smith, and another doctor.⁵ The only claims alleged against the hospital and clinic were claims of vicarious liability.

¶ 12. On September 13, 2007, this matter was transferred to the Adams County Circuit Court. Trial commenced on November 6, 2012, more than ten years after the suit had been filed. After a week-long trial and an extended period of deliberation, the jury announced that it was deadlocked six-to-six. The trial court declared a mistrial.

¶ 13. Following entry of the Order of Mistrial, the defendants filed motions for judgment notwithstanding the verdict (JNOV), arguing that Jennifer McIlwain had failed to establish her burden of proof as to the issue of causation. The trial court granted the motions and entered a final judgment of dismissal as to all claims in favor of all defendants. Jennifer timely filed this appeal, raising the following issues:

I. Whether the trial court erred in granting defendants' motion for a judgment notwithstanding the verdict after the hung jury.

II. Whether the trial court abused its discretion in denying plaintiff a fair trial.

A. Whether the trial court permitted the introduction of collateral, prejudicial, and irrelevant evidence.

B. Whether the trial court erred in limiting the evidence on the present net cash value of Hunter McIlwain's life.

The defendants argue that the trial court properly granted their motions for JNOV because Jennifer had failed to establish causation and to articulate a violation of the standard of care.

ANALYSIS

¶ 14. The standard of review for a trial court's grant of a motion for JNOV is de novo. Bus. Commc'ns, Inc. v. Banks, 90 So.3d 1221, 1224 (Miss.2012) (citing Watts v. Radiator Specialty Co., 990 So.2d 143, 150 (Miss.2008) ). A motion for JNOV is a "challenge to the legal sufficiency of the evidence." United Servs. Auto. Ass'n (USSA) v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010) (citing Adcock v. Miss. Transp. Comm'n, 981 So.2d 942, 948 (Miss.2008) ). "We are required to view the evidence in the light most favorable to the nonmoving party." Mollaghan v. Varnell, 105 So.3d 291, 300 (Miss.2012). "In essence, judgments as a matter of law present both the trial court and the appellate court with the same question—whether the evidence, as

178 So.3d 684

applied to the elements of a party's case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated." White v. Stewman, 932 So.2d 27, 32 (Miss.2006). Judgments as a matter of law test the legal sufficiency of that litigant's case. Id.

I. Whether the trial court erred in granting defendants' motion for a judgment notwithstanding the verdict after the hung jury.

¶ 15. In order to establish a prima facie case of medical negligence, the plaintiff must prove the following elements:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the

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