West v. Sanders Clinic for Women, P.A.

• Citation: 661 So.2d 714
• Decision Date: 21 September 1995
• Docket Number: No. 91-CA-00801-SCT,91-CA-00801-SCT
• Parties: Barbara WEST and C.M. West v. SANDERS CLINIC FOR WOMEN, P.A., a Mississippi Professional Corporation; C.J. Sanders, M.D., W. Carl Kellum, Jr., M.D., A.S. Kellum, M.D., and C.K. White, M.D.
• Court: Mississippi Supreme Court

Page 714

661 So.2d 714

Barbara WEST and C.M. West v. SANDERS CLINIC FOR WOMEN, P.A., a Mississippi Professional Corporation; C.J. Sanders, M.D., W. Carl Kellum Jr., M.D., A.S. Kellum, M.D., and C.K. White, M.D.

No. 91-CA-00801-SCT.

Supreme Court of Mississippi.

Sept. 21, 1995.

E. Farish Percy, Grady F. Tollison, Jr., Tollison Austin & Twiford, Oxford; Timmons Randle & Russell, Tupelo; Robert H. Bass, Jackson, for appellant.

L.F. Sams, Jr., John G. Wheeler, Mitchell McNutt Threadgill Smith & Sams, Tupelo; Robert K. Upchurch, Thomas Wicker, Holland Ray & Upchurch, Tupelo, for appellee.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

This medical negligence case, where a jury returned a verdict in favor of the Defendants, Sanders Clinic for Women and C.J. Sanders, M.D., an obstetrician/gynecologist, W. Carl Kellum, Jr., M.D., a gastroenterologist, and A.S. Kellum, M.D., a general surgeon, is appealed from the Lee County Circuit Court. At issue is whether an expert witness who is a specialist in a particular area of medicine can testify to the standard of care regarding a procedure which could be performed by a general practitioner. Finding that the lower court ruled properly, we affirm the judgment in favor of the defendant physicians. On the cross-appeal, we affirm the circuit court's finding that the Wests' action was not barred by the statute of limitations.

I.

Barbara West alleged that during 1986, the defendants failed properly to diagnose and treat a cancerous mass which was located in her rectum and attached to her vagina. West first complained of chronic pelvic pain to Dr. Sanders on April 22, 1982, who diagnosed her condition as mild endometriosis. She continued to see him from 1982 through 1986, during which time he referred her to various specialists in an attempt to diagnose the source of her pain. Dr. Sanders first referred West to Dr. John Bowlin in January, 1983, who found a mass located on the posterior wall of her rectum. This mass was described by various doctors as being anywhere from three centimeters to the size of a lemon. West also was treated by gastroenterologist Dr. Barney Guyton, recommended by Dr. Sanders, on a number of occasions.

Dr. Carl Kellum discovered a bloody mass in West's rectum and stated he was concerned about colon cancer. He conducted a biopsy in May, 1986 with the results being "[b]enign. No evidence of endometriosis." Not satisfied, Dr. Kellum, along with Dr. A.S. Kellum, performed a flexible sigmoidoscopy, which allowed the physicians to view inside the rectum and retrieve additional samples of the mass. Two other physicians also examined West while she was hospitalized. Once again, no cancer or endometriosis was found. The mass was reported to be a hyperplastic polyp with moderate dysplasia, which Dr. Carl Kellum admitted at trial was a characteristic of a carcinoma. However, he disagreed with the characterization of the mass as a "hyperplastic polyp."

Dr. Sanders performed a total hysterectomy on West on June 20, 1986, ostensibly to treat both the endometriosis and the rectal mass. West stated that she was under the impression from Dr. Sanders that a total hysterectomy was necessary "to get that knot out," and indicated that she would not West returned to Dr. Sanders in August with stomach pains and continued rectal bleeding. He prescribed Danocrine and told her this would "shrink" the knot in her rectum. She then voluntarily returned to Dr. Carl Kellum in August with the same complaints. Dr. Kellum consulted with Dr. A.S. Kellum, who performed a proctoscopy to biopsy the rectal mass. Dr. Carl Kellum claimed he discussed surgery with West and suggested that she get a second opinion from a major center. The Drs. Kellum did not see West again.

have wanted the procedure unless it would take care of the rectal mass. Dr. Sanders testified that he did not think he actually told West that the mass was not cancerous, but admitted that he told her, after surgery, that there was no evidence to make him think there was cancer, and that hopefully, the surgery was "definitive therapy for her endometriosis and the condition she had."

West returned to Dr. Sanders in November, at which time he noted an increase in the size of the mass in her rectum. In January, 1987, he referred West back to Dr. Bowlin, who advised her that there was a possibility that a colostomy was needed. West denied having this discussion with Dr. Bowlin, but stated that he told her that she would have to consult with other colon specialists. West subsequently left the hospital before being discharged.

On February 7, 1987, West went to Dr. William Barnett, a physician in Jackson who was recommended by Dr. Sanders after she asked him who else she might see. Because the tumor persisted after months of benign biopsies, Dr. Barnett immediately admitted her to Baptist Hospital for a colon resection which removed the mass, a colostomy and an additional biopsy on February 9, 1987. That report gave no evidence of endometriosis in the mass, but indicated that the tumor in the mid-rectum adherent to the vagina was cancerous. West then underwent chemotherapy under the direction of Dr. Julian Hill, an oncologist in Tupelo. Dr. Hill determined that she suffered from "Dukes' C rectal carcinoma and had a low anterior resection with diverting colostomy."

At trial, there ensued a battle of the experts. Dr. Neil Wolfson, an expert in obstetrics and gynecology, testified that contrary to Dr. Sanders' actions, he would have excised the mass in the rectum while conducting the hysterectomy. He further stated that a hysterectomy alone was not the treatment for the mass. Dr. Sanders, however, countered that he would not remove a benign lesion.

Dr. Wolfson further testified that the location of the mass on the posterior wall of the rectum, was a "very unusual place" for a mass associated with endometriosis. Furthermore, Dr. Wolfson said he could not find any "hard evidence" from the medical records that West even suffered from endometriosis. He opined that Dr. Sanders' treatment of West fell below the minimally accepted standard of care, and he should have at least had a surgeon present to remove the rectal mass. Dr. Wolfson further felt that Dr. Sanders' treatment fell below the acceptable standard even though he referred West to a specialist, and that he should have referred her to another specialist when Dr. Carl Kellum was unable to successfully treat her.

Dr. Sanders admitted stating in his deposition testimony that he was concerned that his diagnosis of endometriosis, as far as the rectal mass, might have been inaccurate. He observed the mass in May, August, November, and December and did nothing to treat it except refer West to other specialists. The mass continued to grow from August until November, at which time he testified that he told West that if it did not get better in three weeks, he would probably send her to someone else. Although he admitted that early treatment of cancer was important, he opined that one month was not necessarily too long to wait for treatment of someone suspected of having cancer. Dr. Barnett, West's surgeon, testified on behalf of Dr. Sanders and the clinic that immediately after the surgery, holding the tumor in his hand, he still could not determine if it was cancerous, so he sent it to the lab. He further testified that there was no actual invasion of the vagina by the tumor.

Dr. Atilla Ertan, a gastroenterologist from Metairie, Louisiana, ascertained from his review At trial, the main fact question for the jury to decide, therefore, was whether the defendants failed properly and timely to diagnose West's condition and further, whether they breached the standard of care of a minimally competent physician. The jury returned verdicts for all the defendants and judgment against the Wests was entered February 28, 1991. Their motion for a new trial, based on the exclusion of various statements made by their experts and jury instruction issues, was denied on July 31, 1991.

of the records that West's mass ran from the posterior to the anterior part of the rectum. Based upon his experience, training, and teaching, he believed to a reasonable degree of medical certainty that West was suffering from a tumor during the time she was treated by Dr. Kellum. Dr. Jeremiah Henry Holleman, testifying on behalf of the Drs. Kellum, discussed the standard of care for a general surgeon in 1986. He stated that Dr. A.G. Kellum's proctoscopic view of Barbara's rectum using alligator forceps to attempt to diagnose and treat her illness met the acceptable standard of care at that time.

II.

The first assignment of error arises from the trial court's exclusion of testimony by expert witnesses, Drs. H. Grant Taylor and William Stein, who stated that under the standard of care common to all medical doctors, the large rectal tissue growth should have been removed upon discovery and without delay. In addition to his other opinions, the Wests sought to offer Dr. Taylor's deposition to show his opinion as a general practitioner to demonstrate that the defendants had failed to adhere to the standard of care of a general practitioner, not to his specialty, since the procedures used to diagnose West were of a general nature and not limited to a particular area of specialization. The Kellums, who had reserved their right to object to introduction of the testimony at trial before the deposition was taken, asserted that "he can testify about other matters about cancer or treatment of cancer, but we do not think that he is qualified and have preserved that objection to testify as to the standard of care for a gastroenterologist or for a general surgeon." The three areas where Dr. Taylor's deposition was marked out and not read to the jury involved what he would have done as an oncologist, what acceptable medical care was as opposed to the "minimally acceptable" standard,...