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

• Citation: 311 So.3d 1192
• Decision Date: 01 September 2020
• Docket Number: NO. 2019-CA-00212-COA,2019-CA-00212-COA
• Parties: Edward STUART and Judy Stuart, Appellants v. ST. DOMINIC-JACKSON MEMORIAL HOSPITAL and Stephen Crawford, Appellees
• Court: Court of Appeals of Mississippi

311 So.3d 1192

Edward STUART and Judy Stuart, Appellants

v.ST. DOMINIC-JACKSON MEMORIAL HOSPITAL and Stephen Crawford, Appellees

NO. 2019-CA-00212-COA

Court of Appeals of Mississippi.

September 1, 2020

Rehearing Denied December 8, 2020

ATTORNEYS FOR APPELLANTS: DAVID EARL ROZIER JR., Oxford, RICHARD PAUL WILLIAMS III, JENESSA JO CARTER HICKS, DARYL MATTHEW NEWMAN, Jackson

ATTORNEYS FOR APPELLEES: JOHN ERNEST WADE JR., STEPHEN P. KRUGER, CLAIRE W. KETNER, Jackson, THURMAN LAVELLE BOYKIN III

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. A patient brought a medical-malpractice action against a hospital and his physician alleging that he ended up partially paralyzed as a result of their failures during a CT scan

and myelogram. The trial court found that the patient's expert testimony on the required element of causation was too speculative to be admissible. As a result, summary judgment was granted to the hospital and physician. Aggrieved, the patient now appeals.

FACTS

¶2. Edward Stuart was injured in an auto accident in 1997 that left him totally and permanently disabled. Although Stuart could still "ambulate" and care for himself, he was completely incapable of work of any kind. Following the accident, Stuart was under the care of multiple physicians, including a neurosurgeon.

¶3. In July 2010, Stuart began to experience difficulty opening and closing his hands, as well as increased spasticity, which is a muscular contraction causing tightness or stiffness. Stuart also began to experience increased quadriparesis

, which is weakness in all four extremities. Two weeks after the onset of his symptoms, Stuart was admitted to St. Dominic's Hospital to investigate his complaints.

¶4. On July 28, 2010, a computed tomography

(CT) scan was ordered to explore the cause of his condition.¹ The scan required Stuart to extend his arms above his head to fit into the CT machine. Stuart told the technician that he was physically unable to lift his arms. According to the patient, the hospital technician forcefully pulled his arms over his head to force him into the machine. Stuart then began experiencing uncontrollable, full-body spasms. Stuart continued to experience the spasms for the duration of his hospitalization.

¶5. Two days later, on July 30, Stuart was scheduled to have a three-level myelogram

by Dr. Stephen Crawford.² However, Stuart's paraesthesia prevented him from cooperating as needed to perform the procedure.³ So Dr. Crawford halted the myelogram and converted the procedure to a CT scan with contrast.

¶6. This procedure required Dr. Crawford to perform a lumbar puncture

to inject a contrast dye into Stuart's spine. Stuart informed the physician that he was experiencing spasms about eight minutes apart and asked to wait until he had completed a spasm before proceeding with the injection. Stuart testified that Dr. Crawford ignored his request and continued with the procedure. Stuart stated that he suffered a severe, uncontrollable spasm at the exact time of puncture, and was immediately paralyzed. Following the procedure, a Professional Emergency Response Team was called, and Stuart was admitted to the Intensive Care Unit.

¶7. Stuart has been bedridden since his hospitalization and now requires twenty-four-hour care.

PROCEDURAL HISTORY

¶8. In September 2012, Stuart filed a medical-malpractice claim against St. Dominic and Dr. Crawford for the injuries he allegedly sustained while in their care.⁴

First Motions for Summary Judgment

¶9. Dr. Crawford responded to Stuart's claims with a motion for summary judgment. He alleged that Stuart had failed to provide any sworn, expert testimony establishing a breach in the standard of care or the cause of Stuart's neurologic deterioration. St. Dominic joined and adopted Dr. Crawford's motion as to the lack of causation.

¶10. In his motion, Dr. Crawford argued the claims and conclusions of Stuart's unsworn expert testimony were erroneous and based on facts easily rebutted by a review of the medical records. Specifically, Dr. Crawford argued that Stuart was not paralyzed as a result of the lumbar puncture

. In support, he pointed to flowsheets from Stuart's hospitalization and Stuart's own testimony, where he conceded that he was not paralyzed.

¶11. At 5:00 p.m. on July 30, 2010, it was documented that Stuart had "purposeful" movement in both of his arms but "no movement" in either of his legs. At 7:00 p.m. the same day, it was documented that Stuart could "only lift arms slightly off bed, no use of hands." Thirty minutes later, a note was added, stating, "Dr. Lewis thinks that pain med pump with baclofen

is non functional and the source of his problems today."⁵

¶12. The next morning at 7:00 a.m., the flowsheet documented "wk. move/request purposeful" for each of Stuart's extremities. The sheet also stated, "pt very weak when gripping, pt is able to lift hands slightly. pt able to wiggle toes, but unable to move legs." Later that day at 7:00 p.m., the chart indicted "still very limited" next to each extremity.

¶13. Attached to Dr. Crawford's motion was an affidavit from neurosurgeon Dr. John Davis. Dr. Davis opined that the needle and dye were appropriately placed and the lumbar puncture

did not cause Stuart's alleged paralysis or any other neurological injury.

¶14. Stuart responded to the motions for summary judgment with sworn affidavits from his designated expert witnesses—Dr. Robert Kowalski, an expert in the field of neurosurgery

, and Dr. David Wiener, an expert in the fields of general neurology and neuroradiology. Each expert opined that St. Dominic and Dr. Crawford had breached the standard of care with regard to their treatment of Stuart during his hospitalization. Specifically, "St. Dominic and its staff breached the standard of care by failing to determine Mr. Stuart's physical limitations prior to positioning in radiology, failing to listen and follow Mr. Stuart's instructions regarding his physical limitation in positioning, by forcefully pulling Mr. Stuart's arms over his head ... and by performing the myelogram procedure without regard to Mr. Stuart's uncontrollable spasms."

¶15. Dr. Kowalski and Dr. Wiener each testified that these breaches in the standard of care caused Stuart's "constant, severe and uncontrollable spasms" and that Stuart's "paralysis was directly related to the breaches in the standard of care by St. Dominic Hospital and Dr. Stephen Crawford."

¶16. Dr. Crawford filed a rebuttal to Stuart's response, which St. Dominic joined. Referring to the same evidence presented in his initial motion, Dr. Crawford again argued that Stuart's claims and expert testimony were not supported by sufficient facts and data and contradicted the evidence.⁶

¶17. The trial court denied both motions for summary judgment. The court held that "the sworn expert affidavits [of Dr. Wiener and Dr. Kowalski] ... sufficiently established genuine [issues of] material fact concerning the alleged medical negligence during the treatment of Mr. Stuart at St. Dominic's and during the myelogram

preparation and procedure."

Second Motions for Summary Judgment

¶18. St. Dominic and Dr. Crawford then sought and were granted permission to take out-of-time discovery depositions of Stuart's experts. Thereafter, St. Dominic and Dr. Crawford each filed renewed motions for summary judgment. In addition to reasserting the issues from their first motions for summary judgment, they incorporated challenges to the admissibility of Stuart's expert witnesses. Both argued that Dr. Kowalski's and Dr. Wiener's testimony were speculative, conclusory, facially insufficient to create a genuine issue of material fact for trial, and otherwise inadmissible. They claimed that Stuart lacked admissible expert testimony to support each element of his claim so as to establish a prima facie case of medical negligence—especially in regard to causation.

¶19. St. Dominic included a patient history and the physical Dr. Gary Nowell conducted upon Stuart's admission from the emergency department early on the morning of July 28, 2010—before any radiological procedures were performed. Dr. Nowell documented that Stuart was experiencing increased spasticity and was no longer able to stand from his wheelchair without assistance. Dr. Nowell also documented that Stuart was experiencing burning or tingling and increased weakness of both legs as well as difficulty lifting his arms above his shoulders. The document also recorded that Stuart's pain pump contained baclofen

.

¶20. In Dr. Crawford's motion, he argued that neither of Stuart's experts could testify to causation to a reasonable degree of medical probability. He argued that the depositions only showed a temporal connection.

¶21. Stuart responded with a motion to strike the second motions for summary judgment. In his motion, Stuart argued that the renewed motions were redundant because they raised the same arguments that the trial court had already ruled upon and denied. Stuart pointed out that the case had already been pending for six years—since 2012. He argued that the renewed motions for summary judgment raised merely a month and a half before trial were merely delay tactics by the defendants.

¶22. Dr. Crawford filed a response to Stuart's motion to strike, which St. Dominic joined. In his response, Dr. Crawford argued that the motion was improper because Mississippi Rule of Civil Procedure 12(f) was intended for pleadings and not post-discovery motions. He also asserted that the purpose of his renewed motion for summary judgment was to show that Stuart's experts' testimony was inadmissible, illusory, and speculative. Dr. Crawford conceded that the depositions were taken after the deadline, but he noted that Stuart had agreed to the dates for the depositions.

¶23. Dr. Crawford also asserted that even though the motion came only a month and a half before trial, it was filed "in compliance with the Court's own published [p]olicies requiring potentially dispositive motions to be filed at least 45 days in...