Patterson v. Tibbs

• Decision Date: 19 May 2011
• Docket Number: No. 2009–CA–01037–SCT.,2009–CA–01037–SCT.
• Citation: 60 So.3d 742
• Parties: Angelia PATTERSON, On Behalf of the Wrongful Death Beneficiaries and as Administratrix of the Estate of Atravius Coleman, Deceasedv.Dr. Bob TIBBS, Dr. William McArthur and Bolivar County Medical Center.
• Court: Mississippi Supreme Court

60 So.3d 742

Angelia PATTERSON, On Behalf of the Wrongful Death Beneficiaries and as Administratrix of the Estate of Atravius Coleman, Deceased

v.Dr. Bob TIBBS, Dr. William McArthur and Bolivar County Medical Center.

No. 2009–CA–01037–SCT.

Supreme Court of Mississippi.

March 17, 2011.Rehearing Denied May 19, 2011.

George F. Hollowell, Jr., Greenville, attorney for appellant.L. Carl Hagwood, Mary Frances Stallings–England, Diane V. Pradat, Bradley K. Overcash, Kimberly Nelson Howland, Jackson, attorneys for appellees.Before CARLSON, P.J., LAMAR and CHANDLER, JJ.CARLSON, Presiding Justice, for the Court:

¶ 1. Atravius Coleman was born at Bolivar County Medical Center (BMC) on February 22, 2002, at 4:23 a.m. Atravius died less than one day later, on February 23, 2002, at 12:05 a.m. His mother, Angelia Patterson, brought a wrongful-death claim against BMC, Dr. Bob Tibbs, and Dr. William McArthur (the defendants), claiming that they had caused Atravius's death either through negligence or by breaching the standard of care. The defendants filed a motion to exclude Patterson's expert witnesses on causation, claiming that their testimony was not reliable. After a two-day Daubert ¹ hearing in the Circuit Court for the Second Judicial District of Bolivar County, the trial judge granted the defendants' motion and excluded the expert witnesses' testimony on the predeath levels of Demerol in Atravius's blood. The trial court subsequently granted summary judgment in favor of the defendants.

¶ 2. Patterson now appeals to this Court. We find that the trial court did not abuse its discretion in excluding the experts' testimony and that the trial court did not err in granting summary judgment in favor of Dr. William McArthur. However, we are constrained to find that the trial court erred in granting summary judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center. Thus, we affirm in part and reverse in part the trial court's judgment in favor of all defendants, and we remand this case for further proceedings relating to Patterson's claims against Dr. Tibbs and Bolivar County Medical Center.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. Angelia Patterson arrived at BMC on February 21, 2002, and was attended to by Dr. McArthur. She gave birth to a baby boy, Atravius Coleman, on February 22, 2002, at 4:23 a.m. Atravius appeared to be healthy at birth, receiving a nine-out-of-ten APGAR score one minute after delivery and five minutes after delivery.² Atravius was placed under the care of Dr. Tibbs after his birth, even though Dr. McArthur performed the circumcision on Atravius.

¶ 4. Atravius was taken for circumcision at 1:45 p.m. on February 22, 2002. Dr. McArthur performed the circumcision and stated in his affidavit that he did not give Atravius Demerol for pain relief. Also, according to Atravius's medical records, no pain medication was administered for this procedure. A nurse noted that Atravius looked pale at 3:30 p.m. Dr. Tibbs was notified of Atravius's condition and ordered an echocardiogram. The results of the test were “suspicious for hypoplastic left heart syndrome.” Plans were then made to transport Atravius to the University of Mississippi Medical Center Pediatric Department (UMC). Atravius died at BMC before the ambulance from UMC arrived.

¶ 5. The defendants claim that Atravius died as a result of hypoplastic left heart syndrome and that the condition is fatal without surgery. Patterson claims that Atravius died from an overdose of Demerol, which he either received from his mother before delivery or after his birth, likely during his circumcision. To support this claim, Patterson retained two expert-causation witnesses: Dr. Steven Shukan and Dr. Steven Hayne.

¶ 6. Dr. Shukan is a board-certified pediatrician. Dr. Shukan's opinion is that Atravius received a lethal dose of Demerol (meperidine)—approximately 100 milliliters—around the same time as his circumcision. To form this opinion, Dr. Shukan used a process called backextrapolation. Dr. Shukan started with the amount of Demerol and normeperidine in the blood sample taken from Atravius after his death.³ Using the half-life of the drug ⁴ and the post-death drug levels in Atravius's blood sample, Dr. Shukan was able to calculate a predeath level of the drug. The half-life used is essential to the calculation. Because neonates metabolize drugs more slowly than adults, a different half-life must be used in calculations involving neonates.

¶ 7. Dr. Shukan used a half-life of three to three-and-one-half hours in his back-extrapolation calculation. Dr. Shukan testified in his deposition that he referred to his pharmacy textbooks, Nelson's Textbook of Pediatrics, The Physicians' Desk Reference, and WebMD (a website) in forming his opinion. He also stated that he used his professional knowledge of Demerol when forming his overall opinion that Atravius had died from a lethal dose of Demerol. Although Dr. Shukan testified that he had referred to these sources in forming his opinion, he did not state which source specified a half-life of three to three-and-one-half hours. However, he did testify that Demerol has a half-life of two to five hours in adults and that the half-life is a “little longer than the two hours in kids, most authorities would say in the neighborhood of slightly above three hours.” He did not testify as to what authorities he was relying upon when he stated that “most authorities” say the half-life of Demerol in a neonate is slightly above three hours.

¶ 8. Patterson also retained Dr. Steven Hayne as an expert-causation witness. Dr. Hayne, a pathologist, performed an autopsy on Atravius. Using the same back-extrapolation process, Dr. Hayne determined that Atravius likely had died from a lethal dose of Demerol that he had received from his mother prior to birth.⁵ Dr. Hayne used a half-life of four-and-one-half to five hours. He obtained this half-life by calling the director of the Mississippi State Crime Laboratory and a toxicologist employed at the lab.

¶ 9. The defendants moved to exclude the expert testimony of both Dr. Shukan and Dr. Hayne. A two-day Daubert hearing was held, and the trial judge ultimately excluded the testimony of Dr. Shukan and Dr. Hayne on Atravius's predeath Demerol levels.

¶ 10. At the hearing, the depositions of Dr. Shukan and Dr. Hayne were admitted, and several other experts testified. Dr. Christopher Long, a forensic toxicologist, testified for the plaintiff. Dr. Long reviewed a number of articles on the half-life of Demerol in neonates and acknowledged that a wide range of half-lives is documented.

¶ 11. Dr. John Cleary, a board-certified pharmacotherapist, testified for the defense. Dr. Cleary testified that there are multiple articles on the half-life of Demerol in newborns and that the average half-life is approximately eleven hours.⁶ When asked if the half-life of three to three-and-one-half hours has a scientific basis, Dr. Cleary responded that “[i]t is scientifically and medically based in an adult. It does not apply to an infant within the first few days of life.”

¶ 12. Dr. John Joel Donaldson, a licensed physician, also testified for the defense. Dr. Donaldson testified that, contrary to Dr. Shukan's testimony, he had never seen any research or literature that supported the use of a three to three-and-one-half-hour half-life in a newborn.

¶ 13. After the Daubert hearing, the trial court entered an order excluding the testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius's system. The trial judge noted that the half-lives used by Dr. Shukan and Dr. Hayne are of particular significance because the reliability of the doctors' mathematical calculations depends on the correct half-life being used.⁷ The trial court also noted that it is generally accepted that the half-life of Demerol in an adult is approximately three hours, but that there is difficulty in “attempting to correlate the half-life of [Demerol] to an infant.” It is difficult to determine an exact half-life in newborns because the liver—which is the organ responsible for eliminating drugs from the body—is not fully developed and is not capable of working at its full capacity, which results in a longer half-life in newborns versus adults. The trial court further noted that there is minimal, and varied, scientific documentation on the half-life of Demerol in newborns, stating that “[i]t appears that the breadth of such ranges [is] limited only by the number of medical journals one reads.”

¶ 14. With regard to Dr. Shukan's assertion that the half-life of Demerol in a newborn is three to three-and-one-half hours, the trial court stated that:

No evidence was presented explaining exactly how Dr. Shukan came to choose three to three and one-half hours as the half-life of meperidine to be used in his back extrapolation calculations. It seems to this court that arbitrarily choosing a half-life from the panoply of half-lives available when dealing with a neonate is tantamount to choosing a half-life by throwing darts at a medical dartboard. While one may occasionally hit the proper number, it is not a process that instills confidence in the result.

¶ 15. When discussing Dr. Hayne's opinion that the half-life of Demerol in a newborn is four-and-one-half to five hours, the trial court noted in its order that Dr. Hayne received this number from personnel at the Mississippi Crime Laboratory and in a footnote, stated that “[c]ertainly there is nothing untoward in Dr. Hayne seeking additional input from another expert, a practice which appears not to be uncommon among academicians.” The trial court then stated that it had

the same reservations regarding the use of a half-life for meperidine in the range of 4.5 to 5 hours as it does when considering a half-life of 3 to 3.5 hours. To be clear, the court does not question the process of back extrapolation. Rather, the court's reservations in this case grow...