Meena v. Wilburn, 90-CA-1178

• Decision Date: 17 June 1992
• Docket Number: No. 90-CA-1178,90-CA-1178
• Citation: 603 So.2d 866
• Parties: Albert L. MEENA, M.D. v. Flora B. WILBURN.
• Court: Mississippi Supreme Court

Page 866

603 So.2d 866

Albert L. MEENA, M.D. v. Flora B. WILBURN.

No. 90-CA-1178.

Supreme Court of Mississippi.

June 17, 1992.

Clifford B. Ammons, James A. Becker, Jr., Gregg A. Caraway, Watkins & Eager, Jackson, for appellant.

Steve Younger, Henry D. Granberry, III, Whitman B. Johnson, III, Steen Reynolds Dalehite & Currie, Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court.

I. INTRODUCTION

Flora B. Wilburn instituted this negligence action against Albert L. Meena, a surgeon, and Juleigh Greer, his nurse, for injuries arising from a procedure performed on the wrong patient. At the Hinds County Circuit Court, a jury returned a verdict against Meena in the amount of $125,000, but exonerated Greer of any liability. Meena appealed. This Court affirms.

1. The Facts

The facts of this unusual case are, for the most part, undisputed. In the latter half of 1987 at the Russell C. Davis Planetarium in Jackson, Mississippi, 36-year-old Flora B. Wilburn, a custodian, was busy cleaning when she bumped her right leg and "nicked" it. The "nick" developed into an ulcer because of poor blood circulation. As time progressed, the ulcer worsened--particularly due to her diabetic condition. She visited her primary physician, who referred her to Dr. Mike Maples, a vascular surgeon. Maples admitted her to the Mississippi Baptist Medical Center and performed an operation on her "to save her leg." The surgery entailed making an incision "from the groin all the way along ... the right leg down to [inches] below the knee." ¹ The surgery was a success and, according to Maples, Wilburn was "doing acceptably well."

Two days following surgery, Dr. Albert L. Meena was at the hospital "covering" for one of his partners, Dr. Petro, who had asked Meena to remove the staples ² from one of his patients, 65-year-old Dora Slaughter. Slaughter shared a semi-private room with Wilburn. Meena testified about what happened next:

I went and picked up [Slaughter's] chart [at the nurse's desk and asked o]ne of the nurses ..., "Which bed is Dora Slaughter in," and I was led to believe she was in the bed next to the window. I picked up the chart along with [my nurse,] Juleigh Greer, ³ [who accompanied] me. We opened the door. I called out Dora Slaughter's name in a loud voice after I got in the room. The patient next to the window--next to the door was lying in the bed with the sheet over it and never responded. I could not see the age or anything of the patient. The patient sitting in the chair next to the window looked up at me as if to acknowledge that she were Dora Slaughter, and I went over to the bedside, and she was sitting in a chair, and I told her, "I'm Dr. Meena. I work with Dr. Petro, and we need to remove your staples out of your leg." She never said a word. About that time I got the call that Mr. Younger was discussing. I went to the phone at the desk and found out it was an emergency, and I immediately told Juleigh to take the staples out, and I went to St. Dominic Hospital.

Rec. Vol. II, at 74.

Wilburn testified that she tried in vain to dissuade Meena and his nurse from removing the staples:

Well, they came--they came over to my bed, and they told me that they had to remove my staples. I said, "No. I'm sorry. You must be mistaken because I just had surgery." And I kept telling them, and so they went out of the room, and Nurse Greer came back in the room, and she said, "I must remove your staples." I said, "No. You must be mistaken because I just had surgery." She said, "Well, Dr. Meena told me to remove your staples." I said, "No." I said, "I just had surgery." I constantly kept telling her, "No. You must be mistaken. I just had surgery."

Vol. III, at 265-66. Wilburn added that neither Meena nor Greer asked her who she was or even bothered to "look at [her] arm band" which revealed her name. Meena admitted that he did not examine Wilburn or her leg.

Greer conceded during her testimony that, before removing staples from a patient, a nurse "should read the chart, be familiar with the chart, look at the patient's arm band and compare the arm band to the chart"--all of which she failed to do. Greer rationalized her failure: "[W]hen the doctor I work for is standing at the foot of a patient's bed, I would have no doubt--no reason to doubt what he tells me to do."

Greer proceeded to remove the staples, which was an "uncomfortable" and "painful" experience for Wilburn. Greer removed "eight or nine staples"--"could have been more, could have been less." She removed the staples notwithstanding her realization "that there was a problem"; Wilburn's skin split "wide" open--revealing the "scubcu" or layer of fat under the skin. Greer stopped the procedure, exited the room, checked the charts, and realized she had removed staples from the wrong patient. At that point, she encountered Maples (Wilburn's surgeon), who immediately re-stapled the skin (using ten to twelve staples).

Days later, Wilburn's health began to falter. Wilburn had a fever of 101?, and the tissue where the staples had been removed had become infected. Her primary physician, Dr. Robert Evans, prescribed medication; this seemed to lead to an improvement in her condition. However, weeks later, Wilburn returned to Evans with a fever, chills, and other symptoms of a worsening infection. Evans ultimately re-admitted her to the hospital; she remained there for approximately 22 days--during which time she underwent more surgery and received intensive care for the infection.

Wilburn testified that she continued to experience pain upon being discharged from the hospital in May 1988. However, she testified that she remained on medication, rested when possible, used crutches, and regularly changed the dressing on the infected area. Her condition gradually improved and, presumably, she has recovered completely with the exception of some scarring and skin "indention."

2. The Suit

In June 1988, Wilburn filed a complaint against Meena and Greer in the Hinds County Circuit Court. Wilburn alleged that the infection, pain, suffering, and loss of wages resulted from the their negligent acts. Wilburn requested an unspecified amount of actual and punitive damages.

Meena and Greer answered: (1) that the removal of staples did not cause the infection and other injuries, and (2) that Wilburn was negligent for failing to inform them that she was not the right patient.

3. The Trial

Judge Mark Sledge held trial in September 1990. At the conclusion of Wilburn's case, ⁴ the defense moved for a directed verdict. The motions were denied in part. Judge Sledge directed a verdict in favor of Meena and Greer on the issue of punitive damages. He then granted Wilburn's request for two peremptory instructions on liability. The judge granted the instructions simply because Meena and Greer both admitted that they "deviated from the standard of care" with which they should have complied. See, e.g., Vol. III, at 397-98. Thus, the issue left for the jury to resolve was whether the defendants' admitted breach of duty proximately caused Wilburn's injury (the infection).

4. The Verdict

After four days of trial, the jury returned a verdict against Meena and assessed damages in the amount of $125,000. The jury declined to hold the nurse liable for Wilburn's injuries.

Wilburn did not challenge the jury's exoneration of Greer. Meena, however, filed motions for a j.n.o.v., new trial, or remittitur--all of which the judge denied.

5. The Issues

In November 1990, Meena appealed and presented six main issues, which are analyzed in the next Section.

II. ANALYSIS

A. Issue: Whether the lower court erred in not dismissing this action, or granting a directed verdict or peremptory instruction in favor of defendants as a result of plaintiff's failure to prove there was a physician-patient relationship and having further failed to allege or prove an assault and/or battery?

As discussed, Wilburn sued under the theory of negligence. Meena contends that the only cause of action which Wilburn could have instituted against him was for assault and/or battery. Meena explains that "there must be a physician-patient relationship or else a battery will result from an unauthorized medical procedure." Meena's Brief at 8.

1.

Meena's contention--that no medical malpractice or medical negligence action may be instituted in the absence of a doctor-patient relationship--seems to be based on his construction of Beaman v. Helton, 573 So.2d 776 (Miss.1990). Admittedly, Beaman seems to mean what Meena construes it to mean. Careful reconsideration of Beaman has led this Court to conclude that a doctor may be held liable for negligence if the traditional elements--duty, breach of duty, causation, and injury--are evidenced. And such liability is not negated by the absence of a doctor-patient relationship. ⁵ As Justice Sullivan similarly and astutely observed in his Beaman dissent, the question one must ask in a malpractice or negligence action is whether the doctor owed a duty of care--"despite the absence of a doctor-patient relationship." Id. at 779. The presence or absence of a doctor-patient relationship is simply a factor to consider in determining the type or nature of duty owed, if any, to the injured patient or non-patient. See, e.g., Ebaugh v. Rabkin, 22 Cal.App.3d 891, 895, 99 Cal.Rptr. 706, 709 (1972); ⁶ Meier v. Combs, 147 Ind.App. 617, 263 N.E.2d 194, 200 (1970); ⁷ Gill v. Selling, 125 Or. 587, 267 P. 812, 814 (1928). ⁸

Indeed, throughout this case, Meena admitted to breach of a duty to which he was bound. He made the admissions: (1) in his answer to Wilburn's complaint (Vol. I, at 34); (2) in his opening statement (Vol. II, at 29 & 32); (3) through his testimony (Id. at 42-43 & 54); (4) through his objections (Vols. III & IV, at 266 & 460); and (5) during the debate over jury instructions (Vol. IV, at 542, 543 & 545). ⁹

On the basis of the foregoing, this Court hereby overrules Beaman to the extent that it...