TRUSTMARK NATIONAL BANK v. JEFF ANDERSON REGIONAL MED. CNTR.

• Citation: 792 So.2d 267
• Decision Date: 30 May 2000
• Docket Number: No. 1998-CA-01304-COA.,1998-CA-01304-COA.
• Parties: TRUSTMARK NATIONAL BANK and Tonya Perkins, Co-Guardians of Jamiene Tyler Perkins, a minor, Appellants v. JEFF ANDERSON REGIONAL MEDICAL CENTER and Ronnye Purvis, M.D., Appellees.
• Court: Court of Appeals of Mississippi

792 So.2d 267

TRUSTMARK NATIONAL BANK and Tonya Perkins, Co-Guardians of Jamiene Tyler Perkins, a minor, Appellants v. JEFF ANDERSON REGIONAL MEDICAL CENTER and Ronnye Purvis, M.D., Appellees.

No. 1998-CA-01304-COA.

Court of Appeals of Mississippi.

May 30, 2000.

Rehearing Denied October 10, 2000.

Paul Snow, Jackson, Attorney for Appellants.

Brooke Ferris, William Bennett Carter, Meridian, Romney Hastings Entrekin, Laurel, Attorneys for Appellees.

BEFORE McMILLIN, C.J., BRIDGES, PAYNE, AND THOMAS, JJ.

THOMAS, J., for the Court:

ISSUES

I. THE LOWER COURT ERRED IN REFUSING TO GRANT APPELLANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

A. BECAUSE OF ADMISSIONS OF THE DOCTOR

B. BECAUSE OF THE PARTICULAR FACTS OF THIS CASE.

II. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

III. THE LOWER COURT COMMITTED REVERSIBLE ERROR BY DIRECTING A VERDICT IN FAVOR OF THE HOSPITAL WHEN THERE WERE MATERIAL FACTS IN DISPUTE.

IV. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY.

A. RES IPSA LOQUITUR

B. SUDDEN EMERGENCY AND/OR CONTRIBUTORY NEGLIGENCE OF MOTHER.

C. PEREMPTORY INSTRUCTION

V. BECAUSE OF THE ACTIONS OF THE ATTORNEY FOR THE DOCTOR, A NEW TRIAL SHOULD BE GRANTED.

A. BY WILLFULLY VIOLATING THE IN LIMINE ORDER OF THE COURT REGARDING THE REPUTATION OF THE DOCTOR

B. BY IMPROPER ARGUMENT REGARDING AN HONEST ERROR IN JUDGMENT.

C. BY APPEALING TO THE PASSION AND PREJUDICE OF THE JURY.

VI. A NEW TRIAL SHOULD BE GRANTED BECAUSE THE JURY'S QUESTION WAS NEVER RESPONDED TO BY THE COURT.

Finding no error, we affirm.

FACTS

¶ 1. Tonya Perkins was thirty-two years old when she was admitted to the hospital for delivery of her first child on September 6, 1994. She had been diagnosed with gestational diabetes at 22 weeks and was treated successfully. At 37 weeks she was brought into the hospital for an amniocentesis, which is a test to determine if the baby was mature. The baby was found to be mature, and the doctor initiated labor. Labor was induced the next day, and she started having contractions about noon on September 7, 1994. The testimony and doctors' records indicate that the mother was brought into the delivery room at 1:25 p.m. and the baby was delivered at 1:34 p.m. Tonya Perkins, who weighed approximately 200 pounds, had trouble pushing the baby out on her own, so the doctor used a Mightivac, an instrument used to suction the baby's head out of the mother. Once the infant's head was delivered, the doctor noticed that the umbilical cord was wrapped around the infant's neck so he removed the same.

¶ 2. There were six people in the delivery room at Jeff Anderson Regional Medical Center in Meridian when Tyler was born: Mrs. Tonya Perkins, her husband, James Perkins, Dr. Ronnye Purvis, labor and delivery nurse Janet Mowdy, nursery nurse Robin Butler, and OB technician Dolly McCarty. James Perkins did not testify, and Nurse Robin Butler testified that she did not see the event.

¶ 3. Dr. Ronnye Purvis is a licensed and board certified gynecologist and obstetrician who has been practicing for more than ten years. He received a Bachelor of Science in Biology at Marquette University and his medical degree at the University of Wisconsin. He completed his residency at Mercy Hospital Medical Center, which is affiliated with the University of Illinois and Loyola University. He received a National Public Health Service Scholarship in medical school in exchange for being sent to work where needed after graduation. He was sent to Meridian, Mississippi and decided to stay once his required term was over. Dr. Purvis testified that once the baby's head had emerged he told the mother not to push so he could remove the cord from around the infant's neck. He then gave the command to push. He testified that the mother moved backwards and pushed aggressively, forcing him to move forward with her which put him in a crouched or half-standing position. Then the baby "shot" out with a great force and hit him in the chest or abdominal area, fell to the floor, and slid toward the head of the bed. The force of the delivery was so severe that the umbilical cord was broken off of the baby at its insertion site.

¶ 4. Nurse Dolly McCarty was in the room and testified that when Dr. Purvis said "push," Janet Mowdy, who was standing behind the mother, would then instruct the patient to push. She testified that after Dr. Purvis removed the umbilical cord from around the baby's neck and told the mother to push that the baby immediately hit Dr. Purvis at the waist and fell to the floor. She testified that she had never seen anything like it.

¶ 5. Nurse Janet Mowdy testified that she was at the head of the bed and that she repeated the Doctor's instructions to encourage the patient. She testified that after the doctor removed the umbilical cord from around the baby's neck and instructed the mother to push the mother sat up and pushed very aggressively and quickly, so quickly that the nurse did not have time to support the mothers shoulders. She testified that she saw a blur shoot out and that Dr. Purvis then came around the mother's right leg and picked up the baby from the floor.

¶ 6. The plaintiff's nurse expert testified that had the nurse instructed the patient to push without the doctor's express instructions to do so then the nurse would have been usurping the doctor's authority and violating hospital and nursing rules.

¶ 7. Dr. Harlan R. Giles testified as an expert witness for the plaintiff. Dr. Giles is a specialist in the field of obstetrics and gynecology and subspecialist in the field of perinatology, which is maternal-fetal medicine; he is board certified in the specialties and is licensed to practice medicine in Pennsylvania, West Virginia, North Carolina, Texas and Massachusetts. Dr. Giles completed undergraduate school, medical school, an internship in internal medicine, his residency in obstetrics and gynecology and his fellowships in reproductive endocrinology and maternal-fetal medicine at Duke University in Durham, North Carolina. Dr. Giles has been practicing for more than twenty-six years and has participated in more than seven thousand deliveries. Dr. Giles testified that he believed that Dr. Purvis had breached the standard of care. Dr. Giles testified that the delivery of Tyler could not have been an explosive delivery because Dr. Purvis had to use the vacuum to get the baby's head to come out, signifying that it was not a spontaneous birth. Furthermore, Dr. Giles testified that the umbilical cord gas showed acidosis, which shows that the baby was deprived of oxygen long enough for his acid level to build up between the time the head was delivered and the time that the baby was fully delivered. Dr. Giles says that it would take between four to six minutes of delay for the acidosis to develop to the level it was at on Tyler, which leads him to believe that shoulder dystocia had developed. Shoulder dystocia is where the shoulder gets trapped or impacted behind the mother's pubic bone. Dr. Giles testified that several maneuvers are used to relieve the dystocia, none of which were used by Dr. Purvis. Dr. Giles testified that had Dr. Purvis reacted correctly to the shoulder dystocia, Tyler would not have fallen to the floor.

¶ 8. Dr. John Morrison was called to testify as an expert witness on behalf of the defense. Dr. Morrison went to undergraduate school at Memphis State University and medical school at University of Tennessee College of Medicine. He did his four-year residency in OB/GYN at the City of Memphis Hospital. Then he served two years in the United States Army and taught at the University of Tennessee before he moved to Jackson and started teaching at the University of Mississippi Medical Center where he is currently a professor of OB/GYN and Pediatrics and is the Chairman of the Department of OB/GYN. He is board certified in OB/GYN and maternal and fetal medicine and licensed to practice medicine in the states of Mississippi, Tennessee, Arkansas and California. He has been practicing for more than twenty-five years and has delivered or assisted in the delivery of eight to ten thousand babies. Dr. Morrison testified that Dr. Purvis did meet the standard of care in delivering Tyler. He stated that an explosive delivery occurs at the University Medical Center around eight or ten times out of four thousand deliveries. Dr. Morrison testified that in the set of circumstances that occurred with the delivery of Tyler, the patient moving, Dr. Purvis trying to reposition himself and the explosive delivery, Dr. Purvis acted within the standard of care and was not negligent. He also testified that the records as well as the testimony of all the people in the delivery room prove that the baby did not have a shoulder dystocia. The doctor testified that had a shoulder dystocia occurred the people in the room would have definitely been aware of that fact.

¶ 9. Dr. Purvis also testified to the events. He testified that the baby did not have shoulder dystocia and if such a problem had occurred he would have instructed the nurses to take the mother's legs out of the stirrups and push one of the legs down toward her chest to change the pelvic tilt to attempt to release the baby's shoulder and deliver the remaining portion of the baby. Furthermore, Dr. Purvis addressed the comments by Dr. Giles regarding the umbilical cord. Dr. Purvis explained that usually the umbilical cord is clamped once near the baby's insertion point and once closer to the mother. Then the cord is cut between the two clamps, freeing up the baby. Then the remaining part of the cord is clamped once again and a part of the cord is cut off and brought to the lab, this retains the elements that were last given to the baby. Dr. Purvis testified that he only paused long enough to remove the umbilical cord from around the baby's neck and there was no "extended" length of time where only the baby's head was delivered. Dr. Purvis explained...