McMillan v. King

• Decision Date: 14 February 1990
• Docket Number: No. 07-CA-58879,07-CA-58879
• Citation: 557 So.2d 519
• Parties: John T. McMILLAN v. Albert KING, Howard M. Evans, James Mitchell, Dr. Silas Peyton, and James S. Henderson, Board of Trustees of Greenwood-Leflore Hospital, a Community Hospital.
• Court: Mississippi Supreme Court

Page 519

557 So.2d 519

John T. McMILLAN v. Albert KING, Howard M. Evans, James Mitchell, Dr. Silas Peyton, and James S. Henderson, Board of Trustees of Greenwood-Leflore Hospital, a Community Hospital.

No. 07-CA-58879.

Supreme Court of Mississippi.

Feb. 14, 1990.

Jessica S. Upshaw, Hopkins & Anderson, Gulfport, William H. Liston, Jackson, for appellant.

James E. Upshaw, Tommie G. Williams, Lonnie D. Bailey, Upshaw Williams Biggers Page & Kruger, Greenwood, for appellees.

Before HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

The primary point on this appeal presses the familiar principle that jury verdicts may not be disturbed where supported by substantial evidence, although our precise factual context is a bit out of the ordinary. Generally speaking, the appeal is presented by a hospital patient who, during preparation for medical tests, slipped and fell and broke his hip and leg and sued the Hospital for his resulting damages. Appellant presents also an evidentiary point regarding trial use of pre-trial depositions we have not addressed since we adopted the Mississippi Rules of Evidence.

The jury found for the Hospital. We affirm.

II.

A.

Because of our procedural posture, we state the facts fairly but most consistent with the verdict of the jury and, hence, most favorably to the Defendant Hospital.

John T. McMillan, an eighty-year-old retired farmer, lives in Greenwood, Mississippi. On January 3, 1985, Dr. Eugene Webb admitted McMillan to the Greenwood-Leflore Hospital for treatment of a persistent cough thought to be caused by pneumonia. After six days in the Hospital, McMillan was to be released on the morning of January 9, 1985, but only after some final tests were run. Preliminary to these tests, McMillan was to be given an enema.

On the morning of January 9, at approximately 5:30 a.m., James Ivory, a medical attendant employed by the Hospital came to McMillan's private room to administer the enema. Ivory prepared the soap suds solution in the sink of the room and then began the treatment, interrupting it when McMillan was full. Ivory checked the floor for liquid between the bed where the enema was being given and the bathroom. Finding none, Ivory directed McMillan to the bathroom, some ten to fifteen feet away. McMillan walked under his own power, with Ivory following close behind in case there was any need to assist. McMillan discharged the enema solution, but it contained stool, necessitating the repetition of the treatment. Thus, McMillan returned to the bed where the procedure was repeated without untoward consequence. Once again the enema solution contained stool, thus requiring a third treatment. Ivory observed the floor and noted it was clean prior to administering the third treatment.

Ivory put McMillan back on the bed on his left side and started giving him the third enema. After a short while, McMillan said he couldn't take it all and that "it was coming back." McMillan got up on his own out of the bed at which time Ivory noticed that some of the enema solution was leaking out of him. Ivory told him to take his time and not to run. Ivory described McMillan as "hurrying to the bathroom." "He speeded up." "He was just walking speedily." "Walking kind of fast." Ivory picked up a towel and followed behind, wiping the floor and McMillan's leg. Some of the solution reached the floor, however, and moments later McMillan slipped and fell and broke his hip and leg, although Ivory was close enough to catch McMillan and partially break his fall. In the end, Ivory opined, "If he would have took his time, he would have never fell."

B.

On January 29, 1986, McMillan commenced this civil action by filing his complaint against Albert King, Howard M. Evans, James Mitchell, Silas Peyton and James S. Henderson, as trustees of the Greenwood-Leflore Hospital (herein "the Hospital"). McMillan charged the Hospital had been negligent in its care and that, in consequence, he had fallen and sustained serious personal injuries. The Circuit Court called the case for trial on June 15, 1987, at the conclusion of which the jury returned a general verdict for the Hospital.

McMillan moved for judgment in his favor on the issue of liability notwithstanding the verdict of the jury. The Circuit Court denied this motion. McMillan now appeals.

III.

McMillan argues that on the facts Ivory was negligent as a matter of law in his handling of McMillan on the occasion of the third enema and that this negligence, which is said to be attributable to the Hospital via respondeat superior, proximately caused McMillan's injuries. McMillan asked that the Court hold the Hospital negligent and that the jury be instructed peremptorily to this effect. The Circuit Court denied the motion but submitted McMillan's theory to the jury. ¹ Following the jury's verdict for the Hospital, McMillan renewed the point, moving for partial judgment notwithstanding the verdict. Rule 50(b), Miss.R.Civ.P. He appeals the denial of this latter motion.

While the particular factual context may not be one with which this Court has the most judicial familiarity, our scope of review, and the standard which the Circuit Court faced with McMillan's Rule 50(b) motion was required to apply, are quite clear. This Court must

consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, [we are] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So.2d 324, 326 (Miss.1988); see also Wilner v. Mississippi Export Railroad Co., 546 So.2d 678, 681 (Miss.1989); Slay v. Illinois Cent. Gulf R. Co., 511 So.2d 875, 879 (Miss.1987); Rester v. Morrow, 491 So.2d 204, 211-12 (Miss.1986); Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984); City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss.1983); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975) (sometimes hereinafter "the Paymaster rule" or the "Paymaster standard").

In considering whether an issue was such that the court should have granted the Rule 50(b) motion and decided the point as a matter of law, we slant the evidence as required by Paymaster and progeny and scrutinize it under the applicable substantive legal standards. In our present procedural context, we necessarily must find those standards in the legally permissible substantive instructions ² given the jury regarding the point at issue, for those instructions embody the standards under which the jury considered the evidence. See Pennock v. State, 550 So.2d 410, 413 n. 4 (Miss.1989); Fisher v. State, 481 So.2d 203, 213 (Miss.1985). When we are asked to hold that no reasonable jury could have found for the Hospital, the point presupposes the particular substantive legal standards according to which this particular jury has considered the Hospital's liability vel non.

Instruction P-5, just noted, articulates the three possible bases upon which Ivory and the Hospital may have been negligent. These are, first, in permitting McMillan to walk from his bed to the bathroom; second, in failing to provide him proper support and assistance as he walked to the bathroom; and, third, in failing properly to supervise him immediately before and at the time of his slip and fall. By way of contrast, the jury was further instructed via Instruction No. D-7 that the Hospital had no liability if the jury believed Ivory

acted reasonably and that he provided to Mr. McMillan the same degree of care, skill and diligence which is normally provided by minimally competent medical attendants when providing similar services to their patients under the same or similar circumstances.

We take Instructions Nos. P-2, P-3, P-5 and D-7 and read them together as furnishing the substantive standards by which we measure whether a jury issue was made.

On his present appeal, McMillan has narrowed his focus to the moment when he was standing up out of the bed and Ivory noticed the solution coming out of him. Counsel charges the circumstances then existing were such that Ivory was negligent when he allowed McMillan to walk the ten or twelve feet across the floor to the bathroom, but rather Ivory should have put him back in the bed and provided a bed pan in which he could expel the solution. McMillan further points to the fact there was no bed pan available for such an untoward eventuality, although Ivory conceded that he could have easily obtained one in advance. Recalling the Paymaster standard and our Rule 50(b) context, McMillan argues that the totality of the circumstances existing at that moment were such that the only reasonable interpretation of the facts is that Ivory was negligent.

On this appeal, McMillan rests his case upon Ivory's testimony as to what happened on the morning of January 9 and the testimony of Suzanne Johnston, Assistant Director of Nursing Services at Greenwood-Leflore Hospital, regarding the proper nursing practice under the circumstances. In this view we must recall Ivory's testimony summarized in Part II above and then examine carefully Johnston's testimony.

Johnston was called as an adverse witness by McMillan and stated that she had held the position of Assistant Director of Nursing Services since 1981. She testified there was no reason to take any special precautions against the possibility of a fall during an enema due to McMillan's age or health. On cross-examination by McMillan's counsel, Johnston agreed that it would be hazardous for a patient to be...