Monroe v. Blevens
| Decision Date | 02 February 2016 |
| Docket Number | No. 2013–CA–01964–COA.,2013–CA–01964–COA. |
| Citation | 185 So.3d 419 |
| Parties | Rose Marie MONROE and Betty Jo Wright, Individually, and for and on Behalf of the Estate and Wrongful Death Beneficiaries of William Wallace Ray, Deceased, Appellants v. Alexander BLEVENS, M.D., Appellee. |
| Court | Mississippi Court of Appeals |
W. Eric Stracener Jr., Bay St. Louis, John W. Kitchens, Walter Andrew Neely, Bay St. Louis, attorneys for appellants.
Stephen Giles Peresich, Johanna Malbrough McMullan, Jackson, Mary Winter Van Slyke, Biloxi, attorneys for appellee.
EN BANC.
FAIR, J., for the Court:
¶ 1. William Wallace Ray died after Dr. Alexander Blevens allegedly failed to diagnose his fractured hip. The circuit court granted Blevens a mistrial after Ray's wrongful death beneficiaries attempted to introduce expert testimony not previously disclosed on the issue of the standard of care. The court then granted a defense motion to "dismiss" for a failure to meet the burden of proof on that issue.
¶ 2. We conclude that the circuit court acted within its discretion in excluding the beneficiaries' expert from testifying beyond his prior disclosures. And although the circuit court left the nature of its "dismissal" ambiguous, we find that it was a summary judgment and that it was properly granted. We affirm.
¶ 3. The dismissal followed an abortive trial where Dr. David Bomboy, whom the beneficiaries designated as an expert in medicine and orthopedics, had attempted to testify as to the standard of care and how it was breached by Dr. Blevens. Blevens objected, arguing that the beneficiaries had failed to adequately disclose the opinion in discovery. The trial court granted a mistrial and Blevens's subsequent "motion to dismiss" after refusing to allow the beneficiaries to supplement their discovery responses. On appeal, the beneficiaries raise only one issue, their challenge to the order dismissing their case.
¶ 4. In their principal brief on appeal, the beneficiaries present a brief, jumbled argument premised on their assumption that the trial court's order dismissing their case was a discovery sanction, punishment for the allegedly incomplete disclosures. A review of the trial court's seven-page written opinion indicates that this is not the case. The trial court discussed the procedural history, reviewed Dr. Bomboy's deposition and the various disclosures, and then observed that the entirety of the disclosures of Dr. Bomboy's opinion on the standard of care had consisted of conclusory statements that Dr. Blevens had violated it by failing to diagnose the fractured hip. At the trial, however, Bomboy intended to testify that the standard of care required Dr. Blevens to order an x-ray based on the possibility that Ray's knee pain was actually referred pain from his hip.
¶ 5. The trial court did make a discovery ruling: it held that it would not allow Dr. Bomboy to testify beyond his previously disclosed opinions. But this is not the "draconian" sanction of dismissal of their case as punishment for a discovery violation, as the beneficiaries argue. Instead, the court limited Dr. Bomboy's testimony—which is merely an "extreme" sanction1 —and then found that the beneficiaries could not meet their burden of proof to establish the standard of care and a violation thereof. Only then did the court "dismiss" the case. So we see two distinct issues on appeal: the discovery sanction and the dismissal of the case.
¶ 6. The trial court found that the beneficiaries had never disclosed Dr. Bomboy's opinion on the standard of care during the time allowed by the scheduling order, and that it would be excluded for that reason. A trial judge's decision to exclude evidence as a sanction for a discovery violation is reviewed for an abuse of discretion. Estate of Bolden, 17 So.3d at 1072 (¶ 14). "We will affirm unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Id. (citation and internal quotation marks omitted).
¶ 7. The trial judge found the discovery violation and then proceeded to analyze the four factors enumerated by the Mississippi Supreme Court in Mississippi Power & Light Co. v. Lumpkin, 725 So.2d 721, 733–34 (¶ 60) (Miss.1998), for cases where testimony of an expert witness is excluded as a discovery sanction: "the explanation for the transgression, the importance of the testimony, the need for time to prepare to meet the testimony and the possibility of a continuance." The trial judge cited Lumpkin, quoted the four factors, and then analyzed the issue at some length. Yet the beneficiaries do not employ the Lumpkin framework in their arguments; instead, they deny that there was a discovery violation in the first place.
¶ 8. The standard of care is an element of a plaintiff's burden of proof in a medical malpractice suit, and expert testimony is required to establish it. Hubbard v. Wansley, 954 So.2d 951, 956–57 (¶ 12) (Miss.2007). An expert must "identify and articulate the requisite standard that was not complied with." Id. at 957 (¶ 12). The Mississippi Supreme Court has described a standard of care as follows:
[G]iven the circumstances of each patient, each physician has a duty to treat each patient[ ] with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States.
Braswell v. Stinnett, 99 So.3d 175, 178 (¶ 11) (Miss.2012) (citation omitted).
¶ 9. The beneficiaries admit, more or less, that prior to trial neither they nor Dr. Bomboy ever expressly stated, "The standard of care is...." The closest they came was a supplemental disclosure offered following the abortive trial, which stated in its most relevant part:
It is the opinion of Dr. Bomboy that the standard of care was grossly breached by Dr. Alexander Blevens. Mr. Ray presented with symptoms and a history which should have immediately alerted Dr. Blevens that a hip fracture was possible, and should have at the very least been in his differential diagnosis. To fail to include this in the differential diagnosis was a breach of the standard of care. Further, it is widely known that referred knee pain is a common symptom of a hip fracture. Dr. Bomboy will opine that diagnostic tests could have and should have been ordered by Dr. Blevens and performed immediately which would have diagnosed Mr. Ray's condition. There is absolutely no excuse for the Defendant's failure to perform a hip x-ray under these circumstances. Mr. Ray's condition could have been diagnosed, his condition treated, and he would have, in Dr. Bomboy's [opinion], obtained a positive result.
It is readily apparent that even the supplemental designation, in addition to being conclusory and generally unspecific, lacks a clear articulation of a standard of care—the fact that something "should have" been done is not equivalent to stating that it would have been done by a "minimally competent physician[ ] in the same specialty or general field of practice throughout the United States," nor is saying that something is "widely known" the equivalent of it being known to a minimally competent physician. Braswell, 99 So.3d at 179 (¶ 14).2
¶ 10. Nonetheless, had the content of this supplemental designation been disclosed on time, the beneficiaries' argument that the gist of Dr. Bomboy's opinion had been communicated to Dr. Blevens prior to trial may have met more success. But the timely disclosures were in fact much more limited.
¶ 11. Dr. Blevens propounded the following interrogatory:
¶ 12. The beneficiaries responded that they planned to designate Dr. Bomboy. The designation followed, reading in relevant part:
It is anticipated that Dr. Bomboy will testify that the Defendants violated the standard of care in numerous respects when providing care and treatment to William Wallace Ray.
The designation was accompanied by a letter from Dr. Bomboy where he opined that Ray's hip was fractured when he fell before first going to the emergency room, and that his death was caused by a delay in diagnosing the fractured hip. Dr. Bomboy detailed Ray's treatment history after the fall and then stated:
It is my opinion that all parties mentioned in this report failed to meet the standard of care in this case except Dr. Washington and Dr. Zayed. This included the nursing and rehab services at both hospitals. There is no mention in the entire medical record of bruising around Mr. Ray's left hip until documented by Dr. Washington. The fact that the bruising was "resolving" when noted by Dr. Washington means it had been present for a minimum of 7–10 days. There is no other explanation for Mr. Ray's hip fracture other than his fall at home prior to arrival at Ocean Springs Hospital.
Dr. Bomboy was later deposed and was repeatedly asked by Dr. Blevens's counsel to explain his opinion regarding the standard of care:
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