Sessums by Sessums v. McFall, 58540

• Decision Date: 02 August 1989
• Docket Number: No. 58540,58540
• Citation: 551 So.2d 178
• Parties: Ricky Lamar SESSUMS, by Lamar SESSUMS, next friend v. David McFALL and Tri-County Home Health Care, Inc.
• Court: Mississippi Supreme Court

Page 178

551 So.2d 178

Ricky Lamar SESSUMS, by Lamar SESSUMS, next friend v. David McFALL and Tri-County Home Health Care, Inc.

No. 58540.

Supreme Court of Mississippi.

Aug. 2, 1989.

As Modified on Denial of Rehearing Sept. 20, 1989.

Laurel G. Weir, Thomas L. Booker, Weir & Booker, Philadelphia, for appellant.

Johnny Wayne Pope, Robert N. Brooks, Carthage, for appellees.

Before HAWKINS, P.J., and ANDERSON and BLASS, JJ.

BLASS, Justice, for the Court:

Appellant Ricky Lamar Sessums, by his father and next friend Lamar Sessums, filed a complaint in Circuit Court of Leake County for injuries and damages growing out of a motor vehicle/motorcycle accident on a county road. Appellees/Defendants were David McFall, the driver of the vehicle, and Tri-County Home Health Care, Inc. (Tri-County), his employer. Defendants admitted that at the time of the accident McFall was acting as the agent and servant of Tri-County within the scope of his authority and in furtherance of the business of the corporation.

After a jury trial, a verdict was returned in favor of defendants. Feeling aggrieved of this verdict, Sessums appeals assigning the following errors:

(1) THE LOWER COURT ERRED IN PERMITTING THE TREATING PHYSICIAN TO TESTIFY OVER THE OBJECTION OF APPELLANT AND IN REFUSING TO ALLOW APPELLANT CROSS EXAMINATION AS TO BIAS AND PREJUDICE OF SUCH WITNESS.

(2) THE VERDICT OF THE JURY AND JUDGMENT OF THE COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND EVIDENCE AND THE COURT ERRED IN REFUSING TO GRANT A NEW TRIAL.

(3) THE COURT ERRED IN NOT PERMITTING APPELLANT TO CALL ROBIN LEWIS AS A WITNESS.

(4) THE COURT ERRED IN REFUSING INSTRUCTION CD-4 AS REQUESTED BY APPELLANT.

Finding merit in assignment number one, we reverse and remand for a new trial.

I.

The incident which gave rise to this law suit occurred on a narrow county road in Leake County, Mississippi on June 25, 1985. Plaintiff/appellant Ricky Sessums was riding north on his motorcycle on his way home. Defendant/appellee, David McFall was driving his automobile south on the same road. There is a factual dispute as to where and how the accident occurred. Sessums contends he was hit 75 yards south of a fork in the road at a willow bush; that McFall was on the wrong side of the road; and McFall's lack of control of his vehicle caused the accident. McFall contends that the accident occurred in the fork of the road; Sessums pulled out in front of him; and collided with his right fender. At the time of the accident, McFall was working for Tri-County Home Health Care, Inc., acting within the scope of his authority and in furtherance of the business of that corporation.

There were no eyewitnesses to the accident other than the principals.

II.

DID THE LOWER COURT ERR IN PERMITTING THE TREATING PHYSICIAN TO TESTIFY OVER THE OBJECTION OF APPELLANT AND IN REFUSING TO ALLOW APPELLANT CROSS EXAMINATION AS TO BIAS AND PREJUDICE OF SUCH WITNESS?

Dr. James R. Mayfield was called as a witness by McFall. He was the first physician to treat Ricky Sessums after the accident. Dr. Mayfield was asked if he had obtained a history from Sessums as to how the accident occurred. Dr. Mayfield then testified, without further questioning, that Sessums stated that he had a wreck; that he was riding his motorcycle; and pulled out in front of a car. Sessums objected to the testimony asserting the patient/doctor privilege. This objection was overruled. The doctor then went on to say that Sessums told him he was not watching where he was going and ran into the car. He did not testify as to Sessums' injuries or treatment.

Appellee mistakenly states that the privilege is abrogated by Miss. Rules of Evidence, effective January 1, 1986, citing Hughes v. Tupelo Oil Co., Inc., 510 So.2d 502 (Miss.1987).

Rule 503 states:

(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional conditions, ...

(d) Exceptions.

. . . . .

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule.

The comment to Rule 503 goes on to state:

By virtue of this exception a party who seeks recovery of damages for a physical, mental or emotional injury waives the privilege for purposes of that action only and to the extent that he or she has put his or her physical ... condition in issue by his or her pleadings. With respect to any aspect of the party's physical ... condition not put in issue by his or her pleadings, the privilege remains in full force and effect.

Appellees contend that plaintiff waived this privilege, if any, by introducing Dr. Mayfield's bill into evidence. Appellees further argue that by answering questions on cross-examination concerning what he told Dr. Mayfield about the accident Sessums waived the privilege. Thirdly, Appellees argue that by testifying as to his injuries, Sessums waived the privilege, citing Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965); Fishboats, Inc. v. Welzbacher, 413 So.2d 710 (Miss.1982).

Neither Dennis nor Fishboats is applicable in this case. In both Dennis and Fishboats the nature of the injury was at issue, here the cause of the accident is the issue in question.

In Dennis the plaintiff sued for injuries sustained in an automobile accident. Whether plaintiff's back injury was a pre-existing condition was an issue in the case. The court allowed plaintiff to invoke the physician-patient privilege when defendants attempted to call two doctors who had treated plaintiff for previous back injuries. In reversing the lower court the Dennis court held that plaintiff had waived the privilege by exhibiting to the jury the surgical scar on her back, and by testifying in detail about her injuries and communications from and to those physicians and treatment of her by them. The court went on to state that: "(w)here a patient voluntarily goes into detail regarding the nature of her injuries and either testifies as to what the particular...