Smith ex rel. Smith v. Gilmore Mem. Hosp.

• Decision Date: 22 March 2007
• Docket Number: No. 2005-CT-00166-SCT.,2005-CT-00166-SCT.
• Citation: 952 So.2d 177
• Parties: Jordan Kyle SMITH, A Minor, by and Through his Natural Mother and Next Friend, Stephanie SMITH v. GILMORE MEMORIAL HOSPITAL, INC. and Gilmore Health Systems, Inc.
• Court: Mississippi Supreme Court

952 So.2d 177

Jordan Kyle SMITH, A Minor, by and Through his Natural Mother and Next Friend, Stephanie SMITH v. GILMORE MEMORIAL HOSPITAL, INC. and Gilmore Health Systems, Inc.

No. 2005-CT-00166-SCT.

Supreme Court of Mississippi.

March 22, 2007.

Monroe County Circuit Court, Paul S. Funderburk, J.

Roy O. Parker, Sr., attorney for appellant.

John G. Wheeler, Margaret Sams Gratz, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. This case comes to this Court on writ of certiorari from a judgment of the Court of Appeals which reversed and remanded the circuit court's grant of summary judgment. Jordan Smith, a minor, by and through his mother Stephanie Smith (Smith), sued Gilmore Memorial Hospital, Inc., Gilmore Health Systems (GMH), G. Edward Bryant, Jr. (Dr. Bryant) and others for alleged injuries received when Dr. Bryant mistakenly performed a surgical operation on Jordan Smith's unimpaired left eyelid rather than on his impaired right eyelid.¹

¶ 2. GMH moved for summary judgment, arguing entitlement to judgment as a matter of law based on Smith's failure to designate a medical expert witness as required in Mississippi to prove a claim of medical negligence. Smith responded to GMH's motion by advancing he was exempt from producing an expert witness under the "layman's exception." The circuit court declined to apply the layman's exception and granted GMH's motion for summary judgment. Smith appealed. The Court of Appeals reversed the decision of the circuit court and remanded the case. Smith v. Gilmore Mem'l Hosp., Inc., 952 So.2d 245, 2006 WL 1390554, 2006 Miss.App. LEXIS 402 (Miss.Ct.App.2006). GMH appealed and this Court granted certiorari.

¶ 3. Finding that the circuit court's grant of summary judgment was proper, we reverse the judgment of the Court of Appeals and affirm the circuit court's grant of summary judgment in favor of GMH.

FACTS

¶ 4. On March 28, 2001, then two-year-old Jordan Smith (Jordan) was admitted to Gilmore Memorial Hospital to undergo elective outpatient surgery to repair a ptosis² of his right eyelid. Dr. Bryant, who was not an employee of GMH, was to perform the corrective surgery on the right eye and conduct an examination under anesthesia to the left eye. Prior to beginning the surgery, Dr. Bryant confirmed with the operating room staff that the surgery was to be conducted on the right eye. Nonetheless, Dr. Bryant inadvertently began operating on the left eye.

¶ 5. After making only a small incision, Dr. Bryant realized his mistake. He instructed Shirley Phillips (Nurse Phillips), the circulating nurse for the operating room, to contact Jordan's mother, Stephanie Smith (Smith), to confirm that the surgery was to be performed on the right eye. Smith alleges that during the conversation with Nurse Phillips that Smith asked if everything was all right and that Nurse Phillips assured her that "everything was fine."³

¶ 6. After Nurse Phillips's discussion with Smith, Dr. Bryant completed the operation on Jordan's right eyelid. Following the procedure, Dr. Bryant discussed his mistake with Smith. The mistake resulted in Jordan's left eye being swollen for approximately two weeks. Jordan suffered no long-term damage to his left eye and now has good vision in both eyes.

¶ 7. In his complaint against GMH, the Smiths alleged that by not telling Mrs. Smith about Dr. Bryant's mistake prior to continuing the operation on Jordan's right eye, that GMH and Nurse Phillips failed to meet the required standard of care. The circuit court rejected Smith's argument, holding:

In the absence of guidance from a qualified health expert . . . a lay jury would not be able to determine the standard of care for a surgical nurse in the applicable circumstance where the attending surgeon unilaterally and independently exercised his judgment not to tell a minor patient's parent about a surgical mishap and specifically asked the surgical nurse to contact the parent for the purpose of confirming which eyelid was to be surgically repaired.

The Court of Appeals reversed and remanded the grant of summary judgment, concluding that the layman's exception applied and that whether Nurse Phillips failed to meet the standard of care was a question of fact that should be decided by a jury. We granted certiorari.

ISSUE

I. Does the Layman's Exception Apply Where the Jury Would Be Required to Determine the Standard of Care of a Medical Professional?

STANDARD OF REVIEW

¶ 8. "We employ the de novo standard in reviewing a trial court's grant of summary judgment." Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003) (citing O'Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). The moving party shall be granted judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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).

¶ 9. "Summary judgments, in whole or in part, should be granted with great caution." Brown, 444 So.2d at 363. However, "[s]ummary judgment is mandated where the respondent has failed `to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987)) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

DISCUSSION

¶ 10. In asserting his negligence claim, Smith argued that GMH breached its required standard of care when Nurse Phillips failed to inform Smith's mother of Dr. Bryant's mistake prior to his beginning operation on the correct eyelid. However, Smith failed to designate an expert witness to testify to the appropriate standard of care. "`In a medical malpractice action, negligence cannot be established without medical testimony that the defendants failed to use ordinary skill and care.'" Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996) (quoting Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)). Indeed, in the absence of a recognized exception, "expert testimony is generally required to survive summary judgment." Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss.1999) (citing Coleman, 706 So.2d at 698-99; Travis, 680 So.2d at 218; Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 795 (Miss.1995)). As such, the circuit court properly determined that Smith, without providing a medical expert witness, would not be able to prove his prima facie case of medical negligence in this complicated case, therefore the trial court appropriately granted summary judgment.

¶ 11. Notably, this Court has long recognized an exception to the general rule requiring a medical expert in "instances where a layman can observe and understand the negligence as a matter of common sense and practical experience." Coleman, 706 So.2d at 698 (quoting Erby v. North Miss. Med. Ctr., 654 So.2d 495 500 (Miss.1995)). See also Hammond v. Grissom, 470 So.2d 1049, 1052 (Miss.1985); Trapp v. Cayson, 471 So.2d 375, 380 (Miss. 1985); Dazet v. Bass, 254 So.2d 183, 187 (Miss.1971). This exception has been termed the "layman's exception." The layman's exception is commonly applied in situations where physicians or hospital staff have left foreign objects inside the patient, Coleman, 706 So.2d at 696, or given the patient the wrong medication, Dailey v. Methodist Med. Ctr., 790 So.2d 903 (Miss.2001). However, an application of the layman's exception not only to situations where there is blatant negligence but also to situations involving judgment calls made by professionals would be overly broad.

¶ 12. "Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence." Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1357 (Miss.1990) (citing Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 768 (Miss.1984)) (citations omitted). In the instant case, at first glance it might appear to a layman, even without the assistance of a medical expert, that the physician was negligent. Dr. Bryant has admitted to the plaintiff that he made a mistake. This, however, is not the situation with which this Court is confronted. Here, we must decide whether a nurse failed to meet the required standard of care by choosing not to go beyond her supervising physician's authority and inform a patient's mother of the doctor's initial mistake. To ask a jury to determine whether this was beyond the standard of care without being told what constituted the proper standard of care by an expert would be inappropriate.

¶ 13. In Sheffield v. Goodwin, 740 So.2d 854 (Miss.1999), this Court declined to apply the layman's exception to allow a dental patient to testify that her doctor acted negligently because he "did nothing." Sheffield, 740 So.2d at 857. We stated "[d]iagnosing symptoms and prescribing antibiotics is beyond the `common knowledge of laymen.'" Id. at 858. Diagnosing symptoms and prescribing antibiotics are activities that involve a medical professional's judgment — judgment that would require a medical expert to determine whether it failed to meet the required standard of care.

¶ 14. Similarly, a nurse's decision not to go beyond her supervisor's authority to inform a patient's mother of an initial mistake is a judgment call. "Lay testimony is sufficient to establish only those things that are purely factual in nature or thought to be in the common knowledge of laymen." Sheffield, 740 So.2d at 857 (quoting Coleman, 706 So.2d at 698). Since Nurse Phillips' actions involved a judgment call, and not something "purely factual in nature," expert testimony is required.

¶ 15. We note that Judge Irving of the Mississippi Court of Appeals correctly wrote in his...