Troupe v. McAuley
| Decision Date | 10 May 2007 |
| Docket Number | No. 2006-CA-00252-SCT.,2006-CA-00252-SCT. |
| Citation | 955 So.2d 848 |
| Parties | Charlean TROUPE v. James McAULEY, M.D., North Mississippi Medical Center, Inc., North Mississippi Health Services, Inc., and North Mississippi Surgical Center, Inc. |
| Court | Mississippi Supreme Court |
James H. Arnold, Durant, Johnnie E. Walls, Jr., Greenville, Jim Davis Hull, Moss Point, Attorneys for Appellant.
Janelle Marie Lowrey, Robert K. Upchurch, John G. Wheeler, William Daniel Prestage, Tupelo, Attorneys for Appellees.
Before SMITH, C.J., CARLSON AND DICKINSON, JJ.
¶ 1. From the trial court's refusal to accept the plaintiff's expert medical witness, grant of a directed verdict against the plaintiff, and entry of a final judgment in favor of the medical providers in this medical malpractice case, the plaintiff, Charlean Troupe (Bradley), appeals to us. Finding no reversible error, we affirm the final judgment entered by the Lee County Circuit Court.
¶ 2. Charlean Troupe Bradley (Troupe)1 was referred to Dr. James McAuley, a neuro-otolaryngologist,2 by Dr. Harold Hudson, who was Dr. McAuley's partner. The referral to Dr. McAuley was for the purpose of reviewing what Dr. Hudson suspected was a glomus tympanicum, or a benign tumor, in Troupe's left middle ear. Dr. Hudson had performed a physical examination of Troupe and had ordered a Computerized Tomography Scan (CT Scan). Dr. McAuley then conducted a physical examination of Troupe's ear and ordered Magnetic Resonance Imaging (MRI) to be done. Based upon the information provided by the CT scan and MRI, Dr. McAuley concluded that Troupe did indeed have a glomus tympanicum and scheduled surgery.3
¶ 3. On March 1, 2001, Dr. McAuley performed surgery on Troupe's middle ear at North Mississippi Medical Center (NMMC) in Tupelo.4 During the surgery, Dr. McAuley made contact with what he thought was a tumor. Instead, what was thought to be a tumor turned out to be a doubly anomalous carotid artery,5 which he could not see on the CT scan and MRI that had been conducted. The artery tore, and because Dr. McAuley could not seal it with stitches, he used surgical packing to control the bleeding.
¶ 4. Immediately after surgery, Dr. Robert Becker (Dr. Becker), NMMC's interventional radiologist, then performed another CT Scan and an arteriogram on Troupe's ear. Dr. Becker confirmed that Dr. McAuley did not lift a tumor, but in fact lifted Troupe's carotid artery. Because Dr. Becker was going to be out of town the next day, Dr. McAuley arranged for Troupe to be transferred to the University of Alabama Hospital in Birmingham, Alabama (UABH), for treatment, because he wanted to make sure an interventional radiologist would be available if needed. Troupe was prescribed narcotics for pain by Dr. Ethel Beasley at North Mississippi Health Services, Inc. (NMHS),6 prior to being transported from NMMC to UABH.
¶ 5. Upon her return home from UABH, Troupe was sent to Mississippi Methodist Rehabilitation Center (MMRC) in Jackson for therapy. While at MMRC, Troupe developed a movement disorder that physicians determined was not due to the injury to her artery but was instead due to a psychological problem. The record revealed the medical opinion was that Troupe's "pattern of apparent abnormal movements is not compatible with any neurologic disorder," but instead, "improvement with distraction is a strong indication that these are psychologically and not neurologically mediated."
¶ 6. On June 4, 2001, Troupe filed her original complaint against Dr. McAuley, NMMC, Mississippi Methodist Rehabilitation Center Auxiliary, Inc. (MMRCA), and "John Doe Person(s)" and "John Doe Entity(ies)," in the Circuit Court for the First Judicial District of Hinds County. On July 6, 2001, MMRCA filed a motion to dismiss based on a failure to state a claim and failure to sue the correct entity.7 On July 12, 2001, Dr. McAuley and NMMC filed a joint Motion for Change of Venue, or in the Alternative, to Sever and Change Venue. On February 14, 2002, the Hinds County Circuit Court, Judge Swan Yerger, presiding, entered an Order Severing Claims and Transferring Venue, thereby transferring Troupe's severed claims against Dr. McAuley and NMMC to the Circuit Court of Lee County.8
¶ 7. In her first amended complaint filed in the Lee County Circuit Court on December 23, 2002, Troupe added as party-defendants North Mississippi Health Services, Inc. (NMHS), North Mississippi Surgical Center, Inc. (NMSC),9 Dr. Robert Becker, and Dr. Etha S. Beasley10 as defendants. However, the trial judge eventually entered orders dismissing Dr. Becker and Dr. Beasley, with prejudice.
¶ 8. On September 26, 2005, NMMC, NMHS, and NMSC filed a Motion to Strike Plaintiff's Designation of Expert Witnesses. This motion, asserted, inter alia, that Troupe's "formal designation of trial experts, dated September 6, 2005, was submitted less than the sixty (60) days required by Rule 4.04 of the Uniform Circuit and County Rules," inasmuch as the trial was scheduled to begin on October 31, 2005. On September 28, 2005, Dr. McAuley filed a Joinder of the Defendant, James McAuley, M.D., in Motion of North Mississippi Medical Center, Inc., et al., to Strike Plaintiff's Designation of Expert Witnesses. We find nothing in the record concerning the trial court's disposition of these motions.
¶ 9. On October 31, 2005, and November 1, 2005, a jury trial was conducted in the Circuit Court of Lee County, Judge Thomas J. Gardner, III, presiding. Troupe commenced her presentation of the evidence by calling Dr. McAuley as an adverse witness. Troupe then called Dr. Charles E. Rawlings to the witness stand in an effort to qualify him as an expert witness in the field of neurosurgery as opposed to otolaryngology or neuro-otolaryngology.
¶ 10. During his voir dire of Dr. Rawlings in an effort to qualify him as an expert, Troupe's attorney elicited from Dr. Rawlings before the jury, inter alia, that he was a physician, neurosurgeon and attorney; that he was board certified in neurosurgery, current on his continuing medical education, but he was not currently practicing neurosurgery; that he had a law degree from Wake Forest University; and that, as to Troupe's litigation, he had reviewed her medical records from NMMC and UABH. Troupe's attorney then asked Dr. Rawlings, "[b]ased upon your review of [Troupe's] records, medical records and your opinion to a reasonable degree of medical certainty, tell the jury what happened to [Troupe]." At this point, the attorneys for Dr. McAuley and NMMC objected, and Troupe's counsel then asked Judge Gardner to accept Dr. Rawlings as an expert in the specialty of neurosurgery rather than otolaryngology or neuro-otolaryngology. Judge Gardner put the jury in recess, and outside the presence of the jury, Troupe's counsel argued that Dr. Rawlings's testimony was acceptable because Dr. Rawlings had training in surgery, and because the doctor who treated Troupe at UABH was a neurologist. Outside the presence of the jury, Judge Gardner allowed Troupe's counsel to continue to attempt to qualify Dr. Rawlings as an expert in neuro-otolaryngology, and the following questioning occurred:
Q. Dr. Rawlings, are you trained in surgery in the head area?
A. Yes.
Q. Is it sometimes commonly referred to a neurosurgeon as a brain surgery (sic)?
A. It is.
Q. Okay. And are you competent to do any type of surgery involving the area of the brain and the internal organs of the head?
A. Neurosurgery is that part of the surgery that does procedures upon the head, the scalp, the skull, the covering of the brain, the brain and the arteries that lead to the brain.
Q. Okay. Would you be familiar with the left internal carotid artery?
A. I would be.
Q. And the other arteries communicating or surrounding, receiving blood off of that main artery and all of the vessels of the head, including those in and around the ear?
A. Yes, sir.
. . . .
Q. Doctor, you read the records, medical records concerning Charlean. Have you had experience, direct experience with things, cases involving the carotid artery and the matters concerning the vascular system about which we're here today in the case of Charlean Troupe Bradley?
A. Yes. I mean the neurosurgeons operate upon the carotid artery, and the case today is primarily about biopsying a normal carotid artery.
Q. How many such cases have you performed or been involved in involving the carotid artery and the items that would relate to the case that we're here about today?
A. It would be hard to put a number on them, but doing carotid endarterectomies and also clipping aneurisms you're dealing with the carotid artery yourself.
Q. Could you tell the Court what percentage of your practice dealt with that type surgery?
A. Intracranial procedures were about 30 to 40 percent.
[PLAINTIFF'S COUNSEL]:
May it please the Court, based upon Doctor Rawlings' testimony regarding his experience and training, we again offer him as an expert in this case.
¶ 11. In refusing to accept Dr. Rawlings as an expert in neuro-otolaryngology where he was tendered as an expert in neurosurgery, Judge Gardner stated, inter alia:
The Court is of the opinion that the burden imposed on the Plaintiff in this case is to establish as to the defendant doctor in his particular field of specialty a standard of care which he owed to the Plaintiff in this case and to demonstrate — and that standard of care is because of where he is in the discipline that he is trained in. It's not a general practitioner's standard, it's higher than that, and the voir dire or qualification, the attempt to qualify this witness doesn't even touch on that.
Further, there must be some showing of some violation of that standard of care imposed on the doctor within the specialty that he pursues and that that in some way resulted in the damages or injuries sustained by the Plaintiff.
To say that a neurosurgeon knows intuitively what the...
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