Sullivan v. Washington

• Citation: 768 So.2d 881
• Decision Date: 17 August 2000
• Docket Number: No. 1998-CA-01518-SCT.,1998-CA-01518-SCT.
• Parties: Davis SULLIVAN, M.D. and George Rodney Meeks, M.D. v. Broderick WASHINGTON, Maurice Washington, and the Estate of Doristeen Washington, By and Through Deidra Thompson and Broderick Washington, Administrators for Themselves, Individually, and on Behalf of All Wrongful Death Beneficiaries of Doristeen Washington, Deceased.
• Court: United States State Supreme Court of Mississippi

768 So.2d 881

Davis SULLIVAN, M.D. and George Rodney Meeks, M.D. v. Broderick WASHINGTON, Maurice Washington, and the Estate of Doristeen Washington, By and Through Deidra Thompson and Broderick Washington, Administrators for Themselves, Individually, and on Behalf of All Wrongful Death Beneficiaries of Doristeen Washington, Deceased.

No. 1998-CA-01518-SCT.

Supreme Court of Mississippi.

August 17, 2000.

Rehearing Denied October 26, 2000.

Frank A. Wood, Jr., Mildred M. Morris, Susan L. Steffey, Lanny R. Pace, Michael V. Cory, Jr., Jimmie B. Reynolds, Jr., Jackson, Attorneys for Appellants.

Isaac K. Byrd, Jr., Suzanne Keys, Hiawatha Northington, II, Jackson, Attorneys for Appellees.

EN BANC.

PITTMAN, Presiding Justice, for the Court:

¶ 1. This is an appeal from a jury verdict and judgment of the Hinds County Circuit Court, First Judicial District, against Dr. Rodney Meeks and Dr. Davis Sullivan in the amount of $1.7 million. The complaint in this matter was filed on July 15, 1994, by Doristeen Washington¹ against Dr. Rodney Meeks, Dr. Davis Sullivan and Dr. John Isaacs. The complaint alleged that Washington suffered injury as a result of the defendants' negligent tubal ligation surgery at the University of Mississippi Medical Center ("UMC") on January 14, 1993, and their negligent failure to detect complications arising from the surgery. Without presenting any expert testimony concerning the alleged negligence during the tubal ligation, the plaintiffs abandoned the negligent surgery claim, but the plaintiffs amended the complaint on the first day of trial, over the objections of the defendants, to allege lack of informed consent.

¶ 2. The defendants denied any negligence. Discovery proceeded, and the case was tried from May 11 to 21, 1998. The jury returned a verdict against Dr. Meeks and Dr. Sullivan in the amount of $1.7 million but found no liability by Dr. Isaacs. Judgment was entered accordingly. Drs. Meeks and Sullivan filed motions for judgment notwithstanding the verdict, or in the alternative, for new trial, but the court denied the motions. From this judgment Meeks and Sullivan timely appealed.

STATEMENT OF THE FACTS

¶ 3. From January 14-24, 1993, Doristeen Washington was a 37-year-old mother of two who at the time of the surgery was obese and was suffering from multiple sclerosis, pelvic inflammatory disease, and hypertension. Concerned that another pregnancy might aggravate her multiple sclerosis and convinced that she could not care for another child, Washington elected to have a tubal ligation.

¶ 4. Dr. Sullivan was initially scheduled to perform the tubal ligation with Dr. Meeks as the admitting and attending physician for the surgery. Dr. Isaacs, however, actually performed the tubal ligation on January 14, 1993, because Dr. Sullivan had been assigned to another part of the hospital at the time of the surgery. Dr. Isaacs initially successfully located and ligated the left fallopian tube. When Dr. Isaacs attempted to locate the right fallopian tube, he could not due to the presence of numerous adhesions in Washington's bowel. In order to locate the right tube and complete the tubal ligation, Dr. Isaacs had to convert the surgery from a laparoscopy to a laparotomy.

¶ 5. After Dr. Isaacs converted to a laparotomy, he began cutting back the adhesions in Washington's abdomen. At this time, Dr. Sullivan came to the surgical suite and assisted Dr. Isaacs for the remainder of the procedure, which included ligating the right fallopian tube and closing the abdomen.

¶ 6. On January 15, 1993, Washington developed respiratory difficulty and an increased heart rate. Over the next three days, Washington's condition worsened, and on January 17, 1993, she developed signs of sepsis (i.e., an infection) and was started on antibiotics. On January 18, 1993, Washington was moved to UMC's Medical Intensive Care Unit ("MICU"), while Dr. Sullivan continued to follow her progress. Pulmonary physicians reviewed Washington's chest x-rays and noted the presence of pleural effusions and infiltrate in the lungs (i.e., an area of darkening consistent with pneumonia). She remained in the MICU at UMC until January 24, 1993.

¶ 7. On the morning of January 24, 1993, Washington's condition began to deteriorate dramatically. In response to this change, pulmonary physicians requested a surgical consult with Dr. Edward Rigdon. X-rays taken at this time showed the presence of free air in her abdomen, indicating a probable bowel perforation. During the exploratory laparotomy, Dr. Rigdon found and resected two perforations in Washington's bowel.

¶ 8. After Dr. Rigdon resected the two perforations, he inspected the remainder of Washington's colon to make sure that there were no other perforations. After finding no other perforations, Dr. Rigdon completed the procedure by performing a diverting iliostomy. Dr. Rigdon then sent a tissue sample from the resected portion Washington's bowel to the pathology lab for analysis, which revealed evidence of ulceration.

¶ 9. On March 24, 1993, Dr. Rigdon operated again to close the iliostomy, and at this time, he discovered a third perforation, which apparently had developed since his January 24 procedure. He resected this third perforation. Washington remained in the hospital until June 2, 1993, when she was discharged to the Methodist Rehabilitation Center due to her multiple sclerosis.

STATEMENT OF THE ISSUES

¶ 10. Dr. Meeks raises the following issue:

I. WHETHER PLAINTIFFS OFFERED SUFFICIENT MEDICAL TESTIMONY AGAINST MEEKS TO SUPPORT THE JURY VERDICT.

¶ 11. Drs. Meeks and Sullivan raise the following issues:

II. WHETHER THE LACK OF INFORMED CONSENT CLAIM AND INSTRUCTION WERE WARRANTED BY THE EVIDENCE AND PROPERLY PLACED BEFORE THE JURY.

III. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING EVIDENCE OF MEDICAL BILLS OF DORISTEEN WASHINGTON.

V. WHETHER THE JURY WAS A FAIR CROSS-SECTION OF HINDS COUNTY.

VI. WHETHER COUNSEL FOR THE PLAINTIFFS INTENTIONALLY INCITED BIAS AND PREJUDICE.

VII. WHETHER PLAINTIFFS' CLOSING ARGUMENTS VIOLATED THE "GOLDEN RULE" AND IMPERMISSIBLY ENCOURAGED THE JURORS TO BECOME ADVOCATES FOR THE PLAINTIFFS.

VIII. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW AN APPORTIONMENT INSTRUCTION.

IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT JUDGMENT AS A MATTER OF LAW FOR DEFENDANTS ON THE BASIS OF SOVEREIGN IMMUNITY WHERE THE ALLEGED CAUSE OF ACTION ACCRUED IN JANUARY 1993 AND DEFENDANTS WERE EMPLOYEES OF A STATE HOSPITAL AND UNIVERSITY.

DISCUSSION

¶ 12. This Court need address only the dispositive issue in this appeal:

IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT JUDGMENT AS A MATTER OF LAW FOR DEFENDANTS ON THE BASIS OF SOVEREIGN IMMUNITY WHERE THE ALLEGED

CAUSE OF ACTION ACCRUED IN JANUARY 1993 AND DEFENDANTS WERE EMPLOYEES OF A STATE HOSPITAL AND UNIVERSITY.

¶ 13. This Court does not find it necessary to visit the several issues in this case because the outcome is controlled by Miss. Code Ann. § 11-46-7(2) (amended 1991).

¶ 14. After the final presentation of evidence, Meeks and Sullivan moved for a directed verdict arguing that the Sovereign Immunity Act which was in effect during January 1993 required a judgment as a matter of law. Their motion was denied because the judge refused to dismiss the defendants on an immunity issue at the end of a two-week trial. Given the applicable law at the time of the alleged negligence, however, Drs. Meeks and Sullivan must prevail.

¶ 15. The applicable statute which determines the outcome of this case is Miss. Code Ann. § 11-46-7(2) (amended 1991) which provides:

From and after July 1, 1992, as to state, and from October 1, 1992, as to political subdivisions, an employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties.

This Court has previously held in Jones v. Baptist Mem'l Hosp.-Golden Triangle, Inc., 735 So.2d 993, 996 (Miss.1999), that § 11-46-7(2) (amended 1991) applied to actions that accrue between September 16, 1992 until April 1, 1993. In fact, Jones involved three nurses who were sued individually for failure to diagnose properly and treat a patient from January 29 to January 31, 1993. This Court held that the Circuit properly dismissed the nurses pursuant to § 11-46-7(2).

¶ 16. Similarly, Drs. Meeks and Sullivan were sued individually for negligence alleged during the ten-day period from January 14 to January 24, 1993. There was no dispute that Drs. Meeks and Sullivan were employees of UMC acting within the course and scope of their employment. Furthermore, facts gleaned from the record indicate that Washington was a Medicaid patient who did not choose any particular doctor. Drs. Meeks and Sullivan were assigned Washington in accordance with their duties at UMC as a public hospital and an educational institution. Drs. Meeks and Sullivan were sued individually in clear contradiction to the applicable statute.

¶ 17. Although not raised on appeal, the recent judgment by this Court in Miller v. Meeks, 762 So.2d 302 (Miss.2000), requires that a brief analysis be conducted concerning the employment status of Drs. Meeks and Sullivan for purpose of the Sovereign Immunity Act. Miller enumerates a five-part test for determining the employment status of doctors at public hospitals:

1. the nature of the function performed by the employee;

2. the extent of the state's interest and involvement in the function;

3. the degree of control and direction exercised by the state over the employee;

4. whether the act complained of involved the use of judgment and discretion;

5. whether the

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