Norman v. Anderson Reg'l Med. Ctr.

• Decision Date: 24 January 2019
• Docket Number: NO. 2017-CA-00153-SCT,2017-CA-00153-SCT
• Citation: 262 So.3d 520
• Parties: Charles NORMAN, Jr., Individually and on Behalf of All Wrongful Death Beneficiaries of Charles Norman, Sr., and the Estate of Pat Norman v. ANDERSON REGIONAL MEDICAL CENTER
• Court: Mississippi Supreme Court

262 So.3d 520

Charles NORMAN, Jr., Individually and on Behalf of All Wrongful Death Beneficiaries of Charles Norman, Sr., and the Estate of Pat Norman

v.ANDERSON REGIONAL MEDICAL CENTER

NO. 2017-CA-00153-SCT

Supreme Court of Mississippi.

January 24, 2019

ATTORNEYS FOR APPELLANT: CHRIS J. WALKER, H. WESLEY WILLIAMS, III, RIDGELAND

ATTORNEYS FOR APPELLEE: ROMNEY H. ENTREKIN, P. GRAYSON LACEY, JR., SHIRLEY M. MOORE, LAUREL, BENJAMIN B. MORGAN

EN BANC.

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1. The estate and beneficiaries of Charles Norman, Sr., appeal the trial court's exclusion of Norman's medical experts and grant of summary judgment in favor of Anderson Regional Medical Center. Because the trial court properly found that Norman's experts' testimony lacked sufficient foundation in the medical literature and because no genuine issue of material fact remains, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On December 12, 2011, Charles Norman, Sr., was admitted to Anderson Regional and underwent a cardiac catheterization with stent placement, which was performed by his cardiologist, Dr. Michael Purvis. Dr. Purvis performed the procedure without significant complication, and he expected to discharge Norman two days later.

¶3. At some point during the overnight hours of December 13 to 14, 2011, Norman suffered an ischemic stroke. Norman's wife complained to nursing staff that she observed symptoms of a stroke as early as 7:00 a.m. the next morning, which the nurses documented in Norman's chart at 8:00 a.m. Neither Dr. Purvis nor any other medical doctor was notified of the stroke until much later in the day. In fact, Dr. Purvis first became aware of the stroke when he made his rounds around 2:30 that afternoon. Dr. Purvis then consulted Dr. Jimmy Wolfe, a neurologist, who performed a CT scan that confirmed Norman had suffered a stroke. By the time the doctors became aware of the stroke (at least seven and a half hours after Norman's wife first complained to the nursing staff), the time frame within which tissue plasminogen activator ("tPA")—a "clot-buster" drug used to restore blood flow to a stroke victim's brain—is to be effectively administered had passed.

¶4. Norman remained at Anderson Regional two to three days after he had his stroke. He was then transferred to a step-down unit for rehabilitation before finally being transferred to Bedford Nursing Home at Marion, Mississippi, where he remained for the rest of his life. Following the stroke, Norman could no longer care for himself, provide for his family, or enjoy the quality of life he was accustomed to.

¶5. Norman sued Anderson Regional a little more than a year before his death in the Circuit Court of Lauderdale County. Both Norman and his wife have since died. The decedents' estates were substituted as plaintiffs and real parties in interest. Norman alleges that Anderson Regional, by and through the nurses on duty when Norman suffered the stroke, was negligent in its care and treatment of Norman in December 2011.¹

¶6. Anderson Regional subsequently stipulated that its nurses breached the applicable standard of care by not recognizing and reporting Norman's stroke symptoms to a physician earlier. Anderson Regional further conceded that the nursing staff's delay in reporting Norman's stroke prevented the possible administration of tPA. Anderson Regional, however, denied that Norman was ever a candidate for tPA administration, noting that Norman was a "75-year-old, brittle diabetic with a relevant medical history that was positive for atrial fibrillation, hypertension, low ejection fraction, and coronary artery disease."²

¶7. Anderson Regional filed motions to strike and/or exclude Norman's experts: Dr. Harmut Uschmann, Dr. Michael Winkelmann, and Dr. Daisy Marie Thomas. Dr. Uschmann and Dr. Winkelmann both opined that Norman would have had a greater than 50 percent chance of a better outcome had Anderson Regional complied with the applicable standard of care and administered tPA in a timely fashion. Dr. Thomas opined that Anderson Regional's failure to give Norman tPA prevented his recovery and contributed to his death.

¶8. Anderson Regional filed its motion for summary judgment based on the premise that Dr. Uschmann's testimony should be excluded.³ After hearing arguments, the trial court entered its Memorandum Opinion and Order granting summary judgment in favor of Anderson Regional. The trial court concluded that Norman's experts' opinions were neither based on nor supported by reliable data (i.e., the medical literature) regarding the probability tPA would have been effective even if it had been timely administered. As a result, Norman failed to prove by a preponderance of the evidence that he would have had a greater than 50 percent probability of a substantially better outcome had his stroke been timely diagnosed and had tPA been timely administered.

¶9. Norman now appeals.

DISCUSSION

¶10. This appeal challenges this Court's longstanding precedent adopting the loss-of-chance causation standard in medical-malpractice cases. For Norman to recover under our loss-of-chance causation standard, he must prove a greater than 50 percent chance of a substantially better outcome had Anderson Regional timely recognized and reported his stroke and administered tPA.

¶11. This Court reviews a trial court's grant of summary judgment de novo. Kilhullen v. Kan. City S. Ry. , 8 So.3d 168, 174 (Miss. 2009). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). Evidence will be viewed in the light most favorable to the nonmoving party. Kilhullen , 8 So.3d at 174-75.

I. Whether the trial court properly excluded Norman's experts and granted summary judgment on the basis that the expert opinions lacked sufficient foundation in the medical literature.

¶12. To establish a prima facie case of medical malpractice under Mississippi law, a plaintiff must prove by a preponderance of the evidence (1) the applicable standard of care; (2) a failure to conform to the required standard; and (3) an injury proximately caused by a defendant's noncompliance with the standard. Mem'l Hosp. at Gulfport v. White , 170 So.3d 506, 508 (Miss. 2015). As a rule, the plaintiff must demonstrate each of these elements through medical-expert testimony, and the expert must articulate and identify the standard of care that was breached and establish that the breach was the proximate cause or the proximate contributing cause of the alleged injuries.

Hubbard v. Wansley , 954 So.2d 951, 957 (Miss. 2007). Because Anderson Regional stipulated it breached the standard of care, this Court's analysis focuses solely on the issue of causation.

¶13. Mississippi law does not require a plaintiff to prove causation with certainty. Clayton v. Thompson , 475 So.2d 439, 445 (Miss. 1985). Mississippi law requires proof of causation to a degree of reasonable medical probability that—absent the alleged malpractice—a significantly better result was probable, or more likely than not (i.e., a greater than 50 percent chance of a substantially better outcome than was in fact obtained). Id. ; Ladner v. Campbell , 515 So.2d 882, 889 (Miss. 1987). In Mississippi, the threshold of proof required for recovery has been termed the "loss of chance." Clayton , 475 So.2d at 444.

¶14. This Court first addressed Mississippi's loss-of-chance standard in Clayton , in which we concluded that "Mississippi law does not permit the recovery of damages because of mere diminishment of the ‘chance of recovery.’ " Id. at 445. Clayton clearly placed Mississippi in line with those jurisdictions that require a plaintiff to show that "proper treatment would have provided the patient ‘with a greater than 50 percent chance of a better result than was in fact obtained,’ " and Ladner reaffirmed the notion first established in Clayton that a mere "better result absent malpractice" fails to meet the requirements of causal connection. Ladner , 515 So.2d at 889. This Court has since applied Mississippi's loss-of-chance standard consistently in cases such as Hubbard and White , adhering to our current and longstanding precedent that "[p]ossibilities will not sustain a verdict." Kramer Serv., Inc. v. Wilkins , 184 Miss. 483, 497, 186 So. 625, 627 (1939) (quoting Ill. Cent. R.R. v. Cathy , 70 Miss. 332, 338, 12 So. 253 (1893) ); Griffith v. Entergy Miss., Inc. , 203 So.3d 579, 589 (Miss. 2016) ("[V]erdicts are to be founded upon probabilities ... and not upon possibilities[.]").

¶15. In its Memorandum Opinion and Order summarily dismissing Norman's claims, the trial court cited King v. Singing River Health System⁴ —a factually analogous case involving the timely administration of tPA—as controlling authority. In King , the trial court similarly granted the defendants' motions to exclude the plaintiffs' expert testimony because the expert's opinions were not based on reliable data. King , 158 So.3d at 320. The trial court in King found that plaintiffs' expert was unable to cite any medical literature to support his opinion that the decedent would have had a greater than 50 percent chance of improvement had her stroke been treated as she claimed it should have been. Id. King's expert based his opinions on four studies measuring the efficacy of tPA on stroke patients, two of which are the subjects of dispute in the current case⁵ —the 1995 NINDS study⁶ and the 2008 ECASS-III study.⁷ Id. at 327. The Mississippi Court of Appeals affirmed and found that, because the NINDS and ECASS-III studies supported approximately 12 and 7 percent chances for improvement in stroke patients respectively, King's expert testimony lacked sufficient support in the medical literature and failed to satisfy Mississippi'sloss-of-chance standard. Id. at 327-29.

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