St. Dominic-Jackson Mem'l Hosp. v. Newton

• Decision Date: 07 April 2022
• Docket Number: 2020-IA-00494-SCT
• Parties: ST. DOMINIC-JACKSON MEMORIAL HOSPITAL v. April NEWTON and Travis Newton
• Court: Mississippi Supreme Court

336 So.3d 1089

ST. DOMINIC-JACKSON MEMORIAL HOSPITAL

v.April NEWTON and Travis Newton

NO. 2020-IA-00494-SCT

Supreme Court of Mississippi.

April 7, 2022

ATTORNEYS FOR APPELLANT: JOHN ERNEST WADE, JR., M. PATRICK McDOWELL, SHELDON G. ALSTON, ROBERT LANE BOBO, Jackson

ATTORNEY FOR APPELLEES: GERALD PATRICK COLLIER

EN BANC.

ISHEE, JUSTICE, FOR THE COURT:

¶1. This is an interlocutory appeal from a circuit court order denying summary judgment to a hospital defendant in a medical-malpractice action. The plaintiffs, April and Travis Newton, alleged that St. Dominic-Jackson Memorial Hospital had a duty to "exercise reasonable care in preventing foreseeable injuries to its patients" by requiring St. Dominic to review certain radiation treatments received by April Newton at its facility. On appeal, St. Dominic contends Newton's physician was a third party and that it had no duty to second guess the activities of a patient's attending physician.¹ We agree that Mississippi law does not impose a duty on a hospital to require peer review of a treatment plan before allowing a doctor and patient to use its facilities, and no actionable negligence was alleged of the hospital or its employees; so we reverse the trial court's denial of summary judgment and render a judgment in favor of St. Dominic.

FACTS

¶2. April Newton suffered from a skin condition described in the complaint as advanced severe stage hidradenitis suppurativa

, which "involv[ed] the entire lower abdominal area, perineum, buttocks, and thighs." Newton's hidradenitis suppurativa resulted in irritation and chronic "shallow wounds and sinus tracts with a foul smelling discharge." As an alternative to skin excision and grafting, Newton's doctor, Sidney Albert Johnson Jr., treated Newton's skin condition with radiation at St. Dominic. At first, the treatment helped with Newton's condition, but she later developed painful, chronic skin ulcerations. Newton and her husband filed suit against Dr. Johnson, his clinic, and St. Dominic. Newton's expert, Dr. Phillip Beron, opined that Newton's doctor had prescribed an excessive radiation regimen and that St. Dominic had failed to use reasonable care in its duty "to develop, establish, and enforce certain standards in the operation of its Hospital to insure safe and reasonably adequate care and treatment."

¶3. St. Dominic brought a motion for summary judgment, which the circuit court denied. St. Dominic then petitioned this Court for permission to take an interlocutory appeal, which was granted.

ISSUES

¶4. St. Dominic enumerates two issues:

1. Whether St. Dominic owed Plaintiffs a duty to oversee their chosen physician's medical treatment of Mrs. Newton to insure against his alleged negligence.

2. Whether St. Dominic's alleged failure to adequately oversee Plaintiffs' chosen physician's medical treatment of Mrs. Newton proximately caused Plaintiffs' alleged injuries.

DISCUSSION

¶5. Since the issues are interrelated, we will discuss them together. Ultimately, we conclude that Newton failed to show that St. Dominic breached a duty of care owed to her.

¶6. A hospital is generally not liable for the negligence of independent doctors treating patients on its premises, but it "may be liable for its own negligence and the negligence of its employees." Clark v. St. Dominic-Jackson Mem'l Hosp. , 660 So. 2d 970, 972 (Miss. 1995) (citing Boyd v. Lynch , 493 So. 2d 1315, 1318-19 (Miss. 1986) ). And "[a]s is true of all negligence actions, a hospital must exercise reasonable care in preventing foreseeable injuries to foreseeable plaintiffs." Id. (citing Swan v. I.P., Inc. , 613 So. 2d 846, 856 (Miss. 1993) ; Boyd , 493 So. 2d at 1319 ).

¶7. St. Dominic frames the question on appeal as whether a hospital must require peer review of a treatment plan before permitting a patient to be treated at its facilities. Newton does not agree with this framing of her case, but our review is complicated by her failure to articulate specific allegations of negligence against the hospital. The Newtons' expert, Dr. Beron, did not distinguish between St. Dominic and the other defendants in his affidavits and expert designation; he simply ascribed all of the negligent acts to all of the defendants. In his deposition, however, Dr. Beron explained that he found the hospital's "department policies and procedures" wanting. To be clear, Dr. Beron did not review the hospital's policies and procedures; he said that he was unaware of any policies and procedures at St. Dominic and that the circumstantial evidence suggested there were none or that they were insufficient. Dr. Beron observed that there were no notations in the medical records documenting the sort of discussions he would have expected if adequate policies and procedures had been in place. Specifically, Dr. Beron suggested that two hospital employees, the physicist and the dosimetrist, should have been in a position to discuss the treatment with Newton's physician if the proper policies and procedures had been in place.

¶8. Dr. Beron did testify in a conclusory fashion that the lack of procedures was a "direct cause of the breach," but he failed to identify any specific duty that was breached by hospital employees. Dr. Beron faulted the hospital for not conducting "chart rounds," when hospital employees would have reviewed and discussed Newton's treatment plan and documentation on a weekly basis. He also faulted the hospital for not requiring peer review by another physician.² But, as noted above, under Mississippi law, hospitals do not have a duty to supervise physicians practicing at their facilities.

¶9. Dr. Beron did not testify that the hospital employees should have recognized Dr. Johnson's treatment regimen as excessive. Instead, Dr. Beron suggested that if hospital employees had regularly talked to Dr. Johnson about Newton's treatment, those discussions might have led Dr. Johnson to change his mind about the radiation dose he had prescribed. But Dr. Beron ultimately admitted that he "had no idea what Dr. Johnson would have done" had the hospital had the policies in place he says were required. Dr. Beron further admitted he did not have "any specific criticisms of the [hospital employees] in terms of: Hey, they put this plan together and they should have done X or they should have Y. It's more a global criticism of the department in general in terms of they allowed this patient to be placed in harm's way needlessly." Dr. Beron's testimony simply fails to establish that St. Dominic breached a duty owed to Newton and that the breach proximately caused her injuries.

¶10. On appeal, Newton also contends that St. Dominic breached its duty to obtain informed consent for the treatment due to a faulty consent form, but her arguments on appeal mischaracterize Dr. Beron's testimony. In fact, Dr. Beron did not fault the hospital's consent form. Instead, he testified that informed consent was "a process" of discussions with the treating physician, and his complaints about the hospital's consent form depended on first recognizing that the prescribed treatment was (as Dr. Beron opined) excessive. Dr. Beron testified that the hospital consent form "is only useful if you're within the standard of care[. I]f you're using doses that are not standard doses, and describing side effects that don't take place in the literature with treatment doses that are standard and recommended then—then I'm not sure about how useful this document is." Dr. Beron also testified that informed consent required

conversations and documentation of those conversations with [Newton] that talked about the ... likelihood of these problems happening with the technique and dose that he was going to use as opposed to more standard treatment such as that in the literature in which these don't occur, and should document his reason why he needed to go so far above the recommended doses.

Thus, Dr. Beron's contentions about informed consent fault the treating physician or depend on the medical judgment of a physician and do not implicate the hospital's employees.

¶11. Next, Newton presents the novel argument that radiation therapy is an "inherently dangerous activity" such that the hospital could not delegate the duty of deciding doses to an independent contractor, i.e., Newton's physician. This Court has explained:

It is well settled that one who contracts with an independent contractor to perform certain work or service which is not illegal, dangerous or harmful, is not liable for torts committed by him. Where, however, the work or service to be performed in itself entails the commission of some illegal, dangerous or tortious act, the rule obviously cannot apply, because in such instance the principal and the independent contractor both play an integral part, are both proximate causes, of whatever harm ensues.

Hester v. Bandy , 627 So. 2d 833, 841 (Miss. 1993) (citations omitted).

¶12. Newton makes no effort to advance this argument beyond the bare assertion that radiation treatment is inherently dangerous. But if the Court were to accept this theory, it would swallow up the longstanding rule of law in Mississippi that hospitals are generally not required to supervise independent physicians who practice there. See Hardy , 471 So. 2d 358. If radiation therapy is inherently dangerous, it would be hard to justify not finding many other medical treatments to be inherently dangerous as well.

¶13. As other courts have said, it is the physician, not the hospital, who owes the primary duty to provide for the treatment of the patient. Ests. of Milliron v. Francke , 243 Mont. 200, 793 P.2d 824, 827 (1990). Apparently, a few states have adopted the nondelegation rule as to emergency room physicians. See Simmons v. Tuomey Reg'l Med. Ctr. , 341 S.C. 32, 533 S.E.2d 312, 318 (2000) (noting that Alaska, Florida, and New York courts had applied the nondelegation doctrine to emergency room physicians, though Alaska's legislature largely abrogated the decision through statute). But...