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NOVEMBER 30, 1983




Medical malpractice of a surgeon, Dr. James W. Holmes, the appellant here, is the subject matter of this action, which pertains to his surgery upon his patient, Mrs. Carol Dean Elliott (the plaintiff/appellee). Trial in the Circuit Court of Stone County, the Honorable Ruble Griffin, presiding *fn1 resulted In a Five Hundred Thousand Dollar ($500,000) jury verdict for Mrs. Elliott. However, the trial judge ordered a remittitur of one-half, resulting in a $250,000 judgment for her. We reverse.

On his appeal, Dr. Holmes argues: (1) the evidence of his negligence was insufficient, (2) plaintiff's expert witness was not qualified, (3) the verdict is unsupported by adequate evidence, (4) his counsel was erroneously restricted in cross-examination of Mrs. Elliott's medical expert, (5) evidence of the propriety of Mrs. Elliott's "bladder irrigation" erroneously went to the jury, (6) excusing six jurors for cause was error, and (7) the verdict amount is "grossly excessive."

 Plaintiff Mrs. Elliott was employed as a licensed practical nurse by the Lumberton Citizens Hospital where Dr. Holmes, on September 27, 1977, performed a hysterectomy on her. Earlier in August, 1977, another physician, Dr. Robert Cook, did a pap smear and apparently saw symptoms causing him to refer her to her family physician, Dr. Warren Dale, who referred her to the defendant/appellant Dr. Holmes for specialized attention. Dr. Holmes then, on September 2, 1977, did a D & C and conization procedure (removal of tissue scrapings from the uterus and outside the cervix). Pathology revealed pre-cancerous symptoms, indicating the need for the hysterectomy which Dr. Holmes performed September 27, 1977, 25 days after the D & C and conization.

 Dr. Holmes was the only practicing surgeon at the Lumberton, Mississippi, hospital where he did surgery for patients referred to him by other physicians at Poplarville, Wiggins, and Lumberton. Having graduated from the University of Tennessee Medical School in 1957, he has over 20 years practice in South Mississippi. He took extensive training in gynecological surgery and has been president of the Coast Counties Medical Society and received American Medical Association awards in 1977 and 1980 for special continuing education. Prior to performing Mrs. Elliott's hysterectomy, he had performed over 500 such operations.

 While yet hospitalized several days after her hysterectomy, Mrs. Elliott experienced incontinence (uncontrolled urination) which she reported to Dr. Dale, her regular physician in charge of her post-operative care. She went home from the hospital on October 13, and her incontinence continued. Then on October 25 she went to the Lumberton Hospital Emergency Room where Dr. Holmes saw her. Holmes examined her by inserting a tinted dye solution into her bladder through a catheter. Appearance of the solution in her vagina established the fact of leakage from a rupture (fistula) between her bladder and vagina. At her request, he turned her over to Dr. Jack Daniels, a Hattiesburg urologist, who waited until some time in March, 1978, when he was able to repair the fistula and stop Mrs. Elliott's incontinence. During that period of time, she suffered much embarrassment, discomfort, and mental frustration, and was unable to engage in sexual relationships. She lost about a year's wages, $7,000, and had medical bills over $5,000.

 Chief charge of negligence against Dr. Holmes was that he should have waited "at least four, and preferably

 six weeks" after the D & C and conization until doing the hysterectomy, rather than waiting only 25 days. Other charges of negligence were set forth in the pleadings but not pursued at trial. Her expert from Georgia, Dr. William D. Daniel (no relation to urologist Dr. Jack Daniels), testified that Dr. Holmes should have waited at least 28 days following the conization before doing the hysterectomy. In addition to this aspect of malpractice, jury instruction P-3 advised the jurors that they could find for Mrs. Elliott if they found that on October 25, 1977, Dr. Holmes' bladder irrigation (dye insertion test) was improperly done. Other facts will be stated as needful herein.

 First argument is that the "uncontradicted scientific evidence establishes the plaintiff's expert was wrong" and on that basis Dr. Holmes "was entitled to a directed verdict" . of course, in deciding whether there was sufficient evidence to make out a case to go to the jury, under our rule we are bound to favorably consider the evidence given on behalf of the plaintiff (together with reasonable inferences) and accept it as true. Then if such evidence makes out a case, it should not be held as insufficient to create a jury issue.

 Summarized, the testimony of plaintiff's expert witness, Dr. William D. Daniel, was that the fistula or hole which occurred in Mrs. Elliott's bladder was caused by devascularization of the bladder wall during the hysterectomy, which was Dr. Holmes second operation upon Mrs. Elliott. According to Dr. William D. Daniel, when the first operation, the conization, was done 24 days earlier, tissues became inflamed. At the time of the hysterectomy 25 days later, the tissues had not healed, according to him, and removal of the cervix and uterus caused the bladder to lose its blood supply and develop a hole or rupture. Daniel opined that Dr. Holmes should have waited 28 days, and then the tissues of the cervix, uterus, and bladder would have been sufficiently healed so that no fistula would have resulted.

 In this regard, we note the following excerpt of expert Dr. William D. Daniel's testimony:

 Q What is your opinion?

 A In my opinion the timing of the surgery, which I have mentioned before, was the cause of the devascularization. The devascularization of that portion of the bladder was then the cause of the

 necrossis, and the necrossis was the cause for the death of the tissue in that area, and when the tissue had, if you will let me use the term, rotted, or died, then there was a hole.

 Argument of Dr. Holmes is that because of the anatomy of the female organs with reference to her bladder, there was no way for the inflammation to reach the bladder. He contends that the pathology report shows conclusively there was no inflammation, infection or necrossis of the bladder and that therefore the actual proof contradicts, supersedes, and in effect rules out the opinion evidence of the expert Daniel. Gulf Insurance Company v. Provine, 321 So.2d 311 (Miss. 1975). Dr. Holmes also relies in his brief upon the fact that he was the only witness who actually treated the plaintiff, and testified that at the time of the second operation he saw no evidence of inflammation, devascularization, nor necrosis. His testimony in this regard is said to be uncontradicted. He says that expert Daniel's testimony is shown conclusively to be wrong by scientific and other uncontradicted evidence and, therefore, was insufficient to make out a case for jury resolution.

 Upon this record neither this Court nor any other court could properly hold that interpretation of the pathology report established a scientific principle which would absolutely negate negligence by Dr. Holmes in this case. Perhaps the argument here more properly goes to the evidence's weight which was for jury resolution, but it did not utterly destroy the charge of negligence based upon the expert's thesis that the second operation was performed too soon after the conization and thereby "was the cause for the death of tissue in that area" resulting in a hole or fistula which is now the basis of this suit. Accordingly, we find no merit to the present argument.

 Second argument advanced is that the lower court erred in allowing Dr. William D. Daniel to testify as a medical expert upon the record showing he was unfamiliar with the manner in which medicine generally, or surgery in particular, is practiced in the South Mississippi area. Dr. Holmes contends that the action of the lower court in allowing Daniel's expert testimony conflicts with King v. Murphy, 424 So.2d 547 (Miss. 1982). He asserts that there was no showing of the expert's "familiarity with the standard of care in Mississippi or the area reasonably adjacent to the boundaries of Mississippi."

 The expert, whose testimony is challenged here, is Dr. William D. Daniel, an obstetrician-gynecologist licensed in Oklahoma and Georgia, presently practicing in Oklahoma City. He stated he had done more than five hundred hysterectomies either as surgeon or assistant surgeon. Part of his testimony is:

 Q But you know that the standard of medical care and the way treatment is rendered in Lumberton is the same as it is in Oklahoma? A It should be, yes.

 Q Do you know whether it is or not?

 A The standard of care, as defined from a medical standpoint, and from my understanding from a legal standpoint also, is the same throughout the country. King v. Murphy held that:

 [T]he standard of care by which the acts or omissions of physicians, surgeons or specialists are to be judged shall be that degree of care, skill and diligence practiced by a reasonably careful, skillful, diligent and prudent practitioner in such field of practice or specialty in this state, and for a reasonable distance adjacent to state boundaries. An expert witness who is knowledgeable of, and familiar with, the state-wide standard of ...

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