Palmer v. Anderson Infirmary Benev. Ass'n
| Decision Date | 23 February 1995 |
| Docket Number | No. 91-CA-00654-SCT,91-CA-00654-SCT |
| Parties | Henry C. (Sonny) PALMER and Shirley Palmer v. ANDERSON INFIRMARY BENEVOLENT ASSOCIATION d/b/a Jeff Anderson Regional Medical Center. |
| Court | Mississippi Supreme Court |
Henry Palmer, Palmer Wright & Williamson, Meridian, for appellant.
William J. Gunn, Williams Gunn & Crenshaw, Meridian, for appellee.
George H. Ritter, Wise Carter Child & Caraway, Jackson, MS; George Q. Evans, Wise Carter Firm, Jackson, for amicus curiae.
En Banc.
STATEMENT OF THE CASE
This is an appeal from a summary judgment entered by the Circuit Court of Lauderdale County, Mississippi, on May 29, 1991, against Henry C. (Sonny) Palmer 1 and his wife, Shirley Palmer, (hereinafter the Palmers) and in favor of Anderson Infirmary Benevolent Association d/b/a Jeff Anderson Regional Medical Center (hereinafter Anderson Hospital). The Palmers filed suit against Dr. William J. Anderson, III and Anderson Hospital for medical negligence. Motions for Summary Judgment were filed by both Dr. Anderson and Anderson Hospital, and a Motion for Partial Summary Judgment was filed by the Palmers. The trial court denied the motions for summary judgment filed by Dr. Anderson and the Palmers, but granted the hospital's motion for summary judgment. The trial court found that there was no genuine issue as to any material fact and that the Palmers had failed to prove one of the essential elements of the case for which they would have the burden at trial, thus making Anderson Hospital entitled to summary judgment as a matter of law. Feeling aggrieved, the Palmers appeal to this Court asserting the following issue:
HAS THE APPELLANT FAILED TO ESTABLISH A CAUSAL CONNECTION BETWEEN THE BREACH OF DUTY AND THE DAMAGES COMPLAINED OF?
(A) IS MEDICAL EXPERT TESTIMONY NEEDED TO ESTABLISH CAUSAL CONNECTION IN THIS CASE?
(B) HAS MEDICAL EXPERT TESTIMONY ESTABLISHED CAUSAL CONNECTION IN THIS CASE?
(C) IS THIS A CASE OF NEGLIGENCE PER SE?
On January 22, 1987, Sonny Palmer, then fifty-one years of age, was a patient in Anderson Hospital under the care and treatment of William J. Anderson, III, M.D. Dr. Anderson diagnosed Sonny as having "a The Palmers contend that Dr. Anderson was negligent in the performance of the colostomy and the placement of the stoma. During his deposition, Sonny testified to his problems with the stoma:
large carcinoma of the rectum." Dr. Anderson informed the Palmers that Sonny needed surgery to determine how extensive the cancer was and that he would probably have to have a colostomy. The Palmers requested that Dr. Bill Thorton assist him during the operation. They relied on Dr. Anderson to get in touch with Dr. Thorton. The next day, January 23, 1987, Dr. Anderson, without an assistant surgeon present, performed an exploratory laparotomy to determine if Sonny's tumor was resectable. Dr. Anderson determined that it was "an inoperable tumor from the standpoint of an abdominal perineal resection." He went ahead and performed a colostomy "to alleviate any obstruction to the bowel flow and also to help correct or alleviate any bleeding [Sonny] may have since the intestinal flow past the tumor does aggravate any bleeding tendency that may be there." Dr. Anderson performed this surgery without the presence of an assistant surgeon. He stated that there are two stages to an abdominal perineal resection and that the first stage is performed alone
A. Well, sir, it was a stoma is what it's called, I mean, you know, the part on your stomach. Stoma. You got something like a dam around it. I mean, in other words, your skin, you know, where you appliance fits around, you know, goes down on your stomach, it's kind of like a round dam. In other words, it comes up the way it's suppose to be. But this one it goes back in my stomach.
Q. There's no dam?
A. No, sir. It's nothing. It's just--instead of being not even flat, I mean it sinks in. And I can't--I can't even irrigate it right. We have to take towels and, I mean, it's just the situation that I can't--I bend over and it pops off. It's just a situation that's--
Shirley Palmer, Sonny's wife, testified during her deposition that she could not leave Sonny alone for more than a couple of hours at a time because his appliance came off easily and she had to put it back on. At the time of the deposition Sonny planned to have the colostomy redone once he felt strong enough.
Dr. Alan Timmcke, a colon and rectal surgeon at the Ochsner Clinic in New Orleans, Louisiana, and the Palmers' only expert witness, testified by deposition and two affidavits. Dr. Timmcke first saw Sonny on October 12, 1987. On October 16, 1987, Dr. Timmcke performed a pelvic exenteration on Sonny. This consisted of the removal of the rectum, prostate, the seminal vesicles, the bladder and everything surrounding the tumor. As of the time of his deposition Sonny's cancer was in remission.
When asked to explain the proper procedure for deciding where to place a stoma Dr. Timmcke answered:
Well, usually the patient is examined in different positions, lying flat, seated and standing in order to determine where the natural skin creases in the abdomen are, to see where bony prominences such as the hip bones, and those things would come into the picture to see what happens with shift in the abdominal wall, with gravity and standing, all to try and find a--an area on the abdomen that's flat enough to allow an appliance to remain in place and not--not want to come off.
* * * * * *
... [W]hen the skin creases or folds beneath the appliance, that's the point at which the glue and the face plate of the appliance can separate, and once they start separating then it's difficult to control the--the stool and keep it flowing into the--into the bag or the appliance as you had intended and it tends to leak out underneath.
* * * * * *
It can cause problems with odor and soilage of a person's clothes and all sorts of things that would be unacceptable.
* * * * * *
Well, Sonny's original colostomy is refracted, means it's--it has pulled down inward towards the abdominal cavity and is not Dr. Timmcke was questioned concerning the absence of a second surgeon during the surgery performed by Dr. Anderson at Anderson Hospital.
flush or flat with the skin. It's also in a crease or a dimple in the skin.
Q. Had an additional surgeon been present when Sonny's first surgery was conducted in January 1983 [sic], was there a potential or possibility that a better or different result could have been obtained?
MR. CARTER:
Object to the form.
Q. That is an unfair question because we can't go back and do that, but is that potential forever lost?
MR. GUNN:
Same objection.
MR. CARTER:
Same objection.
THE WITNESS:
No, not necessarily. The--The problem with that--that question is that the additional surgeon might not have any more expertise than the surgeon who was there and then would not add anything to the potential of treating the tumor. It's just not possible to answer that question.
Wanda Cooper, Medical Staff Coordinator for Anderson Hospital, testified during her deposition that as a licensed hospital in Mississippi, Anderson Hospital had agreed to adopt the Minimum Standards of Operation for Mississippi Hospitals. Each department within the hospital set up standards in addition to these. Dr. Anderson testified that it was within the surgeon's discretion as to whether an assistant is needed during surgery. Under Anderson Hospital's general rules for surgery, "the attending surgeon is responsible for having a suitable assistant in each case as he deems necessary."
Minimum Standards of Operation for Mississippi Hospitals, Chapter 12, Rule 1202.3 reads as follows: "In any procedure with unusual hazard to life, there shall be present and scrubbed as first assistant a physician designated by the credentials committee as being qualified to assist in major surgery."
The lower court judge in his Judgment Granting Motion of Anderson Infirmary Benevolent Association For Summary Judgment, set out his findings of fact. He then made his conclusions of law and cited authority to support those conclusions. The lower court held in part:
In a medical malpractice action the Plaintiff has the burden of establishing the content and details of the standard of care to which a physician or hospital is held, and the burden at trial of proving failure to conform to that standard.
* * * * * *
In order for the Plaintiff to prevail at trial and on motions for summary judgment there must be proof of the following: (a) duty, (b) breach, (c) causal connection and (d) damages.... [T]his case is an alleged negligence action as to the hospital.
* * * * * *
For purposes of this Rule 56 Motion only, the Court will assume that the Plaintiff has provided significant probative evidence demonstrating a breach of duty on the part of the Defendant hospital in failing to have two surgeons in the operating suite at the time of Plaintiff's surgery because such procedure constituted an unusual hazard to life. The Court looks next to the question of causation or the existence of a causal relationship between the negligent act and the Plaintiff's resulting damages and/or injuries.
* * * * * *
The sole expert relied upon in this case by Plaintiff to prove the essential elements of this negligence action against Defendant, Hospital, is Dr. Alan Timmcke who testified through a deposition and through two sworn affidavits. The Court in reviewing Dr. Timmcke's deposition and affidavits The court therefore finds that there is no genuine issue as to any material fact and that the Defendant, Anderson Infirmary Benevolent Association d/b/a Jeff Anderson Regional Medical Center is entitled...
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