Starcher v. Byrne

Decision Date30 January 1997
Docket NumberNo. 94-CA-00320-SCT,94-CA-00320-SCT
Citation687 So.2d 737
PartiesSharilynn STARCHER and Elton Starcher v. Dr. David BYRNE.
CourtMississippi Supreme Court

John D. Giddens, Diaz Lewis & Giddens, Jackson, for Appellants.

Harry R. Allen, Allen Vaughn Cobb & Hood, Gulfport; Rodney D. Robinson, Allen Vaughn Firm, Gulfport, for Appellee.

Before SULLIVAN, P.J., and SMITH and MILLS, JJ.

SMITH, Justice, for the Court:

Sharilynn Starcher and her husband Elton, appeal a jury verdict from the Circuit Court of Harrison County, First Judicial District, denying relief for injuries stemming from an adverse reaction to the induction of anesthesia from which Sharilynn Starcher suffered brain damage. The Starchers charge that: (1) the jury verdict for the operating physician was against the overwhelming weight of the evidence; (2) that the court should have ruled that the operating physician was liable under either (a) the borrowed servant doctrine or (b) the "captain of the ship" doctrine; and (3) the trial court erred in not granting a jury instruction as to the doctor's negligence in the failure to follow guidelines for the administration of anesthesia. This Court affirms the verdict of the jury. Furthermore, we hold that the borrowed servant doctrine is not applicable in this case; that the "captain of the ship" doctrine is not well-suited to this case; and that there was no error in the trial court's refusal to give the requested jury instructions.

FACTS

Sharilynn Starcher was admitted to Gulf Coast Medical Center on September 18, 1988 for elective surgery to correct a ventral hernia which was to be performed by the defendant At the beginning of the anesthesia induction process, Dr. Byrne received an emergency page concerning another surgery that he had completed earlier that day on another patient. He went into the hallway to answer that page while the anesthesia process was being completed. The hallway was, of course, outside the operating room, but was within the operating suite and only about thirty feet from the operating room door. The operating suite is the area consisting of all the operating rooms as well as the doctors' lounge and scrub room. It was the hospital policy at that time that the surgeon was not expected to be in the operating room, but only had to be in the operating suite at the time that the anesthesia process began. After completing the telephone call, Dr. Byrne returned to the operating room where he noticed that there was a problem with the anesthesia induction. Dr. Byrne and Nurse Wright determined that Sharilynn was suffering from a bronchospasm, which is a constriction of the muscles of the throat that makes the passage of air to and from the lungs very difficult. Based on their diagnosis, the operating team conducted emergency treatment for a bronchospasm. Due to the patient's condition, her heart rate began to fall rapidly. It is the testimony of all persons present that Dr. Byrne administered Epinephrine, a drug which raises the heart rate and relaxes muscles, to counteract both the constricted throat muscles and the falling heart rate, although no notation was made in the hospital records to that effect. Dr. Byrne successfully administered CPR to Sharilynn Starcher at which time she was stabilized. As a result of her inability to breathe and the failure of her heart to adequately pump blood to all regions of her body, specifically her brain for several minutes, Sharilynn suffered brain damage resulting in decreased intellectual and physical capacity. She remained comatose for several days following this incident.

Dr. David Byrne. The surgery was unsuccessfully attempted the next evening. The regular anesthesiologist, Dr. Jack Coursey, was not present to begin the anesthesia process. In his stead was Nurse William Wright, a certified registered nurse anesthetist (CRNA) and an employee of Dr. Coursey. Testimony elicited at trial showed that: Dr. Byrne was not Wright's supervisor; Dr. Byrne had little, if any say over the anesthesia process and was not expected to inject himself into the anesthesia process; Dr. Byrne could not definitively tell Wright what to do and expect that Wright would obey those commands if Wright thought that Dr. Byrne was wrong; it is not at all unusual for a CRNA to perform the anesthesia for surgical procedures in the total absence of an anesthesiologist so long as a physician is available in case of an emergency, and CRNAs in this state are trained to do so.

STANDARD OF REVIEW

The standard of review for jury verdicts in this state is well established. Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 76 (Miss.1996); Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985). Our standard for review is de novo in passing on questions of law. Mississippi Farm Bureau Casualty Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995).

ISSUES

The Starchers cite four primary issues for appeal:

I. WHETHER THE JUDGMENT BELOW IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN NOT HOLDING THAT DR. BYRNE WAS NEGLIGENT.

II. WHETHER DR. BYRNE IS LIABLE AS A MATTER OF LAW UNDER THE BORROWED SERVANT RULE.

III. WHETHER DR. BYRNE IS LIABLE AS A MATTER OF LAW UNDER

THE "CAPTAIN OF THE SHIP" DOCTRINE.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S JURY INSTRUCTIONS.

DISCUSSION OF LAW

I.

WHETHER THE JUDGMENT BELOW IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN NOT HOLDING THAT DR. BYRNE WAS NEGLIGENT.

In order to establish a prima facie case for medical malpractice, the Starchers must prove the following: (1) The existence of a duty on the part of Dr. Byrne to perform to a specific standard of conduct for the protection of others against unreasonable risk of injury; (2) Failure on the part of Dr. Byrne to conform to that standard; (3) Breach of that duty by the defendant was a proximate cause of Sharilynn's injury; (4) Injury to the Sharilynn's person. Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987).

Physicians in this state are under the general duty to employ reasonable and ordinary care in the treatment of their patients. Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993). That duty is commonly stated as follows:

Given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment, and options.

Id.; Palmer v. Biloxi Regional Medical Center, 564 So.2d 1346, 1354 (Miss.1990).

The Starchers contend that Dr. Byrne was negligent because he was not present in the operating room at the induction of anesthesia by Nurse Wright. They contend that the Mississippi Standards of Practice for Nurse Anesthetists require that a CRNA must work under the direction of and in the physical presence of a licensed physician. Because Dr. Coursey was not in the operating room or even at the hospital, they contend that Dr. Byrne, as the operating physician, was in charge of the operating room. Therefore, his failure to be present at the induction of anesthesia constituted a breach of the standard of care as well as a breach of the Standards of Practice for Nurse Anesthetists.

Two factors work against the Starchers in this regard. First, the Standards of Practice, upon which the Starchers so heavily rely, apply to CRNAs, not physicians. Although the Starchers insisted that the Standards apply equally to CRNAs and physicians, absolutely no evidence is present in the record to show that the standards have any application to physicians. Second, with the exception of the Starcher's expert witness, no doctor called by either side stated that the physician must be physically present in the operating room at the induction of anesthesia. Every other doctor called stated unequivocally that the common practice was only that the surgeon must be in the operating suite. It was the general consensus of all doctors who testified, except for the Starcher's expert that the operating physician has a tendency to get in the way more than anything else when he or she is in the operating room at the induction of anesthesia. Further, C.L. Smith, CEO of Gulf Coast Regional Medical Center, testified that it is the hospital policy that the operating physician be within the operating suite, not the operating room at the induction of anesthesia.

There was adequate evidence that the CRNA could administer anesthesia where neither a surgeon nor an anesthesiologist is present in the operating room, that Mississippi CRNAs are indeed licensed to do so, and that this was a fairly common practice. In combination with the fact that Dr. Byrne was in the operating suite, and indeed helped to resuscitate Mrs. Starcher, this Court cannot say that a reasonable juror, taking the evidence in the light most favorable to the verdict, could not find for the defendant. As

a result, this Court affirms the verdict of the jury as to this issue.

II.

WHETHER DR. BYRNE IS LIABLE AS A MATTER OF LAW UNDER THE BORROWED SERVANT RULE.

Diligent research has revealed no Mississippi cases holding that the nurse anesthetist, or any other nurse, for that matter is the borrowed servant of the operating surgeon during the course of surgery. However, recently in Quick Change Oil and Lube v. Rogers, 663 So.2d 585 (Miss.1995) this Court revisited the determining...

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