Worthy v. McNair, No. 2008-CA-01642-SCT (Miss. 6/10/2010)
| Decision Date | 10 June 2010 |
| Docket Number | No. 2008-CA-01642-SCT.,2008-CA-01642-SCT. |
| Parties | VICKI WORTHY AND FRED WORTHY, INDIVIDUALLY AND AS WRONGFUL DEATH BENEFICIARIES OF MACKENZY WORTHY, DECEASED v. ROBBYE D. McNAIR, M.D., WOMEN'S CLINIC OF GREENWOOD, P.A. |
| Court | Mississippi Supreme Court |
¶ 1. The plaintiffs, Vicki and Fred Worthy, brought this medical-malpractice and wrongful-death action against the defendants, Dr. Robbye D. McNair and the Women's Clinic of Greenwood, alleging that their unborn child died as a result of Dr. McNair's negligent provision of prenatal care. The defendants, through a Daubert1
¶ 2. motion, argued that the obstetrician-gynecologist whom plaintiffs have offered as an expert is unable to provide reliable testimony regarding the cause of the baby's death. The trial court agreed that the challenged testimony is unreliable and thus inadmissible, basing its ruling primarily on the following facts: the expert is not a pathologist; the expert did not study the placental tissues of the baby under a microscope; and the plaintiffs offered as an expert witness, in addition to the obstetrician-gynecologist, a pathologist who gave an opinion different from the obstetrician-gynecologist's. The trial court also found that, without the obstetrician-gynecologist's testimony regarding cause of death, the plaintiffs had no expert to link the alleged breach of the standard of care to the baby's death, and therefore, summary judgment and a directed verdict were warranted.
¶ 3. The plaintiffs appealed to this Court, arguing that: 1) the trial court abused its discretion in excluding the obstetrician-gynecologist's testimony as to cause of death, and 2) the trial court committed reversible procedural error by issuing an order "granting summary judgment and directed verdict" after a jury had been empaneled. Finding that the trial court committed no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 4. On October 7, 1999, plaintiff Vicki Worthy visited the Women's Clinic of Greenwood, where she met with defendant Dr. McNair, an obstetrician, who confirmed that she was pregnant. Dr. McNair and the Women's Clinic provided prenatal care to Worthy throughout her pregnancy. On May 23, 2000, Worthy visited Dr. McNair's office, reporting that she had experienced decreased fetal movement since the previous evening. Tests performed that day determined that the fetus had died, and Dr. McNair delivered the stillborn baby via cesarean section.
¶ 5. Dr. Michael Montes, a local pathologist, performed an autopsy on the baby. The "microscopic diagnosis" included in the autopsy report stated, among other things:
— Slightly immature placenta with increased syncytial knotting of chorionic villi consistent with fetoplacental insufficiency.
. . .
— Fetal hydrops with associated hepatomegaly and cardiomegaly
— Oligohydramnios
The "discussion" included at the end of the autopsy report stated:
. . . The two main findings were: 1. Hydrops fetalis and 2. Oligohydramnios gross features.
The list of disorders associated with hydrops fetalis is extensive . . . .
Oligohydramnios (decreased amniotic fluid) may be caused by a variety of unrelated maternal, placental, or fetal abnormalities. The features of fetoplacental insufficiency in the placenta could certainly have contributed [sic] fetal placental insufficiency which in turn has a host of etiologies. Chronic leakage of amniotic fluid due to rupture of amnion, uteroplacental insufficiency from maternal hypertension or severe toxemia, and [sic] are all causes of oligohydramnios. The fetal compression associated with significant oligohydramnios in turn results in the phenotype observed in this fetus. That is, flattened faces, malpositioned limbs, and thickened skin membranes. Clinical correlation is suggested.
Thus, the autopsy report stated that the autopsy revealed conditions consistent with placental insufficiency, but suggested that it could not be concluded, one way or the other, whether the fetus died from placental insufficiency. Dr. McNair explained at her deposition that the phrase "clinical correlation" in Dr. Montes's autopsy reports "usually means he doesn't have enough information from the findings to say exactly what the cause was . . . it means . . . how well does this correlate with the clinical scenario to determine what the etiology was."
¶ 6. On May 23, 2002, Worthy and her husband, Fred Worthy, brought suit against Dr. McNair and the Women's Clinic, alleging that the defendants were negligent, and that their negligence had led to the death of the Worthys' unborn child. The plaintiffs selected Dr. Bruce Halbridge, an obstetrician-gynecologist, and Dr. Carole Vogler, a pediatric pathologist, to testify as expert witnesses. Prior to trial, the plaintiffs took the evidentiary depositions of both experts for use at trial.
¶ 7. On April 29, 2008, the matter proceeded to trial and a jury was selected, duly sworn, and empaneled. After the jury was dismissed for the day and instructed to return the next morning, the trial court took up the defendants' Daubert motion. The motion challenged the reliability of Dr. Halbridge's testimony regarding the baby's cause of death.
Dr. Halbridge's Testimony
¶ 8. At his deposition, Dr. Halbridge testified that Dr. McNair had been negligent in the care of Worthy. Dr. Halbridge testified that Dr. McNair had failed to diagnose Worthy with gestational diabetes and chronic hypertension. He proceeded to testify that an obstetrician caring for a pregnant woman with these conditions is required to initiate a program of testing referred to as antenatal surveillance. This consists of non-stress tests, contraction stress tests and/or biophysical profiles — all of which are methods of testing for fetal well-being. Dr. Halbridge testified that, had this program of testing been carried out, Dr. McNair would have learned that placental insufficiency complicated the pregnancy. Dr. McNair would have then delivered the fetus earlier, resulting in the delivery of a live baby. In sum, Dr. Halbridge testified that Dr. McNair had breached the applicable standard of care by failing to diagnose Worthy with gestational diabetes and chronic hypertension, and thus failing to initiate the appropriate program of testing.
¶ 9. Dr. Halbridge also testified regarding the cause of the baby's death — linking the alleged breach of the standard of care to the baby's death. He unequivocally testified that the hydrops,2 or diffuse swelling of the tissues, was due to placental insufficiency. He explained that the maternal diabetes and chronic hypertension resulted in placental insufficiency, which led to the hydrops, and ultimately led to the baby's death.
Dr. Vogler's Testimony
¶ 10. Dr. Vogler, the pathologist whom the plaintiffs selected as an expert witness, testified that the cause of the hydrops, and thus the baby's death, was unknown. Dr. Vogler testified that there was no evidence of placental insufficiency. She based her determination on her experience as a pathologist, her review of Worthy's medical records and the autopsy report, and her study of the Worthy baby's placental tissues under a microscope.
¶ 11. The trial court concluded that Dr. Halbridge's testimony as to cause of death, though relevant, was not reliable and did not meet the criteria required by Rule 702 of the Mississippi Rules of Evidence and Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The trial court held that Dr. Halbridge's background in obstetrics, along with his review of Worthy's medical records and the autopsy report, were sufficient to deem his testimony regarding standard of care reliable. However, the trial court ruled that his background and review of the records was not sufficient to deem his testimony reliable as to cause of death. The trial court found that Dr. Halbridge's testimony failed to establish his expertise as a pathologist, nor did he presented any literature or scientific evidence that supported his opinion as to cause of death. Further, the trial court found that the issue of placental insufficiency as the cause of death fell within the speciality of pathology, not obstetrics. The trial court then reasoned that, since the autopsy report did not establish placental insufficiency as the cause of death, and since the plaintiffs' own expert in pathology found no evidence of placental insufficiency, Dr. Halbridge's testimony that placental insufficiency was the cause of death was unreliable.
¶ 12. The trial court orally announced at trial that it was granting the defendants' motion to exclude Dr. Halbridge's testimony as to causation. The trial court reasoned that, without Dr. Halbridge's testimony, the plaintiffs lacked an expert to testify as to causation (i.e., an expert to link the alleged breach of the standard of care to the harm — in this case, hydrops and death) which is needed to establish negligence. Subsequently, the court prepared a written order excluding Dr. Halbridge's testimony as to causation, and also an order "granting summary judgment and directed verdict." The plaintiffs timely appealed to this Court.
DISCUSSION
¶ 13. The Worthys raises the following two issues on appeal:
I. Whether the trial court erred in finding Dr. Halbridge's testimony to be unreliable and, therefore, inadmissible under Mississippi Rule of Evidence 702 and Daubert, 509 U.S. 579.
II. Whether the trial court erred by dismissing the action after a jury had been empaneled.
¶ 14. A trial court's admission or exclusion of expert testimony is reviewed for abuse of discretion. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003). The trial court's decision will stand unless the reviewing court concludes...
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