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MRS. ANNIE THERESA HARDY, ADMINISTRATRIX OF ESTATE OF BRAD EMMITT EWING, DECEASED, APPELLANT v. TERRY K. BRANTLEY

MAY 22, 1985

MRS. ANNIE THERESA HARDY, ADMINISTRATRIX OF ESTATE OF BRAD EMMITT EWING, DECEASED, APPELLANT
v.
TERRY K. BRANTLEY, M.D. AND HINDS GENERAL HOSPITAL, APPELLEES



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Evidence in this medical malpractice action reflects that practically no one ever dies of a perforated duodenal ulcer, but Brad Ewing did. The testimony also suggests that detection of a perforated ulcer is a relatively straight forward diagnosis provided the proper tests are run, but an emergency room physician misdiagnosed Brad Ewing's condition following which Brad died.

 Because of outmoded rules we have finally dispatched in Hall v. Hilbun, ___ So.2d ___ (Miss. 1984), Brad Ewing's personal representative was denied a fair opportunity to prove a claim of malpractice against the emergency physician and the hospital. We reverse and remand for a new trial under the Hall principles. Beyond that we clarify our law regarding the liability of a hospital for the malpractice of its emergency physician and provide that under certain circumstances the hospital may incur vicarious liability under the theory of respondeat superior.

 II.

 A.

 On the morning of September 10, 1980, Brad Emmitt Ewing, at that time an unmarried 35 year old resident of Jackson, Mississippi, began to experience severe stomach pains. He was taken by his brother, Larry Ewing, to Hinds General Hospital Emergency Room in Jackson. At this time, Brad was practically doubled over with pain in his abdomen. Larry Ewing testified that he and Brad did not seek the services of any particular physician. *fn1 Rather, they sought emergency care from whatever health care personnel Hinds General had available as Brad was in great pain.

 Larry checked Brad in at the front desk at Hinds General, giving the clerk the needed information about his brother. Larry then helped his brother into the emergency room where Brad was treated by Dr. Terry K. Brantley, an emergency services physician. Dr. Brantley took Brad's blood pressure and ordered various blood tests. Brad's blood pressure was slightly elevated and his white blood count, 14,300, was above the upper limits of normal, 10,000-11,000. Dr. Brantley

 requested a urinalysis although it appears that this test was never performed. Dr. Brantley also failed to check Brad's stool, and he failed to order an x-ray examination of the lower and upper abdomen of the deceased.

 Apparently, Dr. Brantley concluded that Brad was suffering from heat exhaustion. He put him on an IV and gave him Tylenol and Valium. Brad remained at the hospital for approximately four hours. Prior to his release at approximately 6:00 p.m. Dr. Brantley took the Brad's blood pressure again, and again the results were somewhat high. However, during his stay at the emergency room, Brad's condition seemed to improve. His pain in the abdomen became less severe, no doubt aided by the Tylenol and Valium, and he was dismissed with a prescription for Darvon Compound 65 for pain and with instructions to drink large quantities of liquids such as Gatorade, orange juice, etc.

 Certain facts regarding this initial visit are in conflict. The history of the patient as shown on the hospital record reveals that he had been out working in the fields in the hot sun prior to his hospital visit. *fn2 His brother Larry claims that, prior to the visit, he and his brother had been lying on the couch watching T.V. Larry denies ever having told anyone at the hospital that his brother had been in the hot sun. The other fact in conflict is whether, as Dr. Brantley claims, he told Brad if he had any further problems to contact his own physician. Again, Brad's brother, Larry, denies this. Finally, there is some question as to whether Brad complained of pains in his extremities, especially his legs, as the hospital report shows.

 Following his initial visit to the Hinds General emergency room, Brad rested fairly well the night of September 10, 1980. However, on the afternoon of September 11, 1980, he again began to experience steady and intense abdominal pain. Larry took Brad back to Hinds General Hospital, and shortly thereafter, Brad Ewing expired. The cause of death noted on the hospital records is cardio-respiratory arrest.

 An autopsy report was requested by the Hinds County Coroner and was performed by Dr. Rodrigo Galvez. Dr. Galvez concluded that Brad was suffering from a perforated duodenal ulcer and peritonitis which caused his death. Dr. Galvez said that it was his opinion that Brad had been suffering from this condition for approximately 48 to 72 hours prior to his death.

 Dr. Galvez also testified that he had performed over 2,000 autopsies and had never performed an autopsy where

 someone had died from a perforated duodenal ulcer. He said that people did not normally die from this condition since it was easily diagnosed and treatable. Dr. Galvez expressed no opinion as to whether Dr. Brantley had been negligent, nor was he asked.

 B.

 The record reflects that Dr. Terry K. Brantley is one of three physicians organized as The Hinds Emergency Group (HEG). At all relevant times, Dr. Brantley served as an emergency physician at Hinds General in accordance with a rather elaborate contract between Hinds General and HEG.

 The contract provides that HEG shall have the complete and sole responsibility for furnishing professional services in the Emergency Department of . . . [Hinds General] so as to provide twenty-four hour coverage.

 HEG was obligated to provide an emergency physician to render emergency care to each patient presenting himself at the emergency room, except patients known to have their own private physician.

 Fees for services rendered by HEG were to be determined by HEG subject to review by Hinds General's administrator. The Hinds General accounting department was charged administratively with all billings and collections on behalf of HEG, for which services HEG paid to Hinds General 20 per cent of all such billings.

 HEG agreed that during the term of the agreement none of its physicians would maintain an office for the private practice of medicine other than in the Emergency Department of the hospital and

 that they [HEG physicians] will confine their practice to emergency coverage at this Hospital; . . .,

 except as otherwise expressly authorized by Hinds General's administrator.

 Significantly, the contract then provided:

 10. Disclaimer. In this performance of the work, duties and obligations devolving upon him under this agreement, it is mutually understood and agreed that The Hinds

 Emergency Group is at all times acting and performing as an independent contractor providing to the Hospital the services of Emergency Physicians who are practicing their profession in medicine and surgery and specializing in Emergency care. The Hospital shall neither have nor exercise any control or direction over the methods by which the Hinds Emergency Group or its contract physicians shall perform their professional work and functions; the sole interest and responsibility of the Hospital is to ensure that the Emergency Department and service covered by this agreement shall be performed and rendered in a competent, efficient, and satisfactory manner. The standards of medical practice and professional duties of the partners and the contract physicians of the Hinds Emergency Group shall be determined by the medical staff of the Hospital. All applicable provisions of law and other rules and regulations of any and all governmental authorities relating to licensing and regulations of Physicians and Hospital and to the operation of the department shall be fully complied with by all parties hereto; in addition, the parties shall also operate and conduct the department in accordance with the standards and recommendations of the Joint Commission on Accreditation of Hospitals, the bylaws of the Hospital, and the bylaws, rules and regulations of the medical staff as may be in effect from time to time. Nothing in this agreement shall be in any way construed to constitute The Hinds Emergency Group or the Emergency Physicians as agents or employees of the Hospital, nor shall anything contained herein be construed to constitute the Hospital as agent for The Hinds Emergency Group or the Emergency Physicians except as specifically provided for in respect to billing and collection matters set forth in Paragraph 2 above.

 11. Liability Insurance. The Hinds Emergency Group shall at its own expense or at the expense of its Emergency Physicians, cause each of its Emergency Physicians to carry professional liability insurance to cover himself, with a minimum of $100,000.00 for each person and $300,000.00 for each incident.

 12. Indemnity. The Hinds Emergency Group shall defend, indemnify and hold Hospital, its Board of Trustees, employees and agents harmless from and against any and all claims, demands, liabilities, damages and expenses for injury to persons or damage to property caused or asserted to have been caused by the negligent or intentional acts of The Hinds Emergency Group or its employees, agents or partners. [Emphasis supplied]

 There is no evidence in the record that Brad or Larry Ewing had any knowledge of this agreement or its terms.

 C.

 Procedurally, this civil action was commenced on March 19, 1981. On that day Mrs. Annie Theresa Hardy, Administratrix of the Estate of Brad Emmitt Ewing, deceased, filed her declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, invoking the provisions of the Mississippi Wrongful Death Act, Miss. Code Ann. 11-7-13 (Supp. 1984). Named as Defendants, among others, were Terry K. Brantley, M.D., and Hinds General Hospital, a community hospital situated in the First Judicial District of Hinds County. Plaintiff Hardy charged negligence on the part of the Defendants in the diagnosis and treatment of her son, Brad Emmitt Ewing; this negligence was said to have caused or contributed to Brad's death. In their separate answers, the Defendants denied the operative allegations of the declaration.

 In the course of discovery the Defendants became aware that Plaintiff intended to call as an expert witness Dr. Frederic G. Ransom, a specialist in emergency medicine from Birmingham, Alabama, and in that connection Defendants filed on July 22, 1982, a motion in limine wherein they asserted that Dr. Ransom was not competent under our law to testify as an expert witness in such cases. By order entered August 4, 1982, the motion was overruled.

 Defendant's motion in limine was renewed on December 29, 1932, in the wake of this Court's then recent decision in King v. Murphy, now reported in 424 So.2d 547. On January 6, 1983, the renewed motion was overruled, subject to the right of Defendants to question Dr. Ransom on voir dire regarding his competency as an expert witness in the case.

 On January 10, 1983, this matter was called for trial in the Circuit Court sitting in Jackson, Mississippi, Honorable

 Charles T. Barber, Circuit Judge, presiding and sitting with a jury.

 The outcome-determinative event at trial was Plaintiff's attempt to present the testimony of Dr. Ransom. After extensive voir dire examination, the Circuit Judge ruled that Dr. Ransom could not testify and stated that he was of the opinion that Dr. Ransom

 does not possess the standards as outlined in the last decision [King v. Murphy] I have before me at this time and therefore I am going to sustain the motion in limine.

 This ruling was not otherwise explained.

 In due course thereafter, the Plaintiff rested her case and both Defendants moved for a directed verdict. The trial judge granted each motion and on January 14, 1983, entered a final judgment dismissing with prejudice the declaration of Plaintiff against both Dr. Brantley and Hinds General Hospital. This appeal has followed.

 III.

 A.

 Our first concern is whether the trial judge correctly excluded the testimony of Dr. Ransom. At the outset of our consideration of this question, we note Dr. Ransom's professional qualifications and background as they are reflected in the record.

 Dr. Ransom graduated from Morehouse College in Atlanta, Georgia in 1968. Thereafter, he attended the University of Alabama School of Medicine. His internship and his residency in internal medicine were taken at University of Alabama Hospitals in Birmingham, Alabama. He was certified by the American Board of Internal Medicine in June of 1975. Currently he serves as the medical director of the University Emergency Department at University of Alabama Hospitals. He also serves on boards of directors or as a member or instructor for numerous other health-related organizations. He has never practiced medicine anywhere other than Alabama.

 Dr. Ransom had been engaged in the practice of emergency medicine for seven years on a full-time basis. In that time, he has supervised about 250 interns and residents. A fair number of those people originally trained in Mississippi and several are now in practice in the state of Mississippi. Some

 of the patients Dr. Ransom has treated have come from the eastern portion of the state of Mississippi, and he has occasionally interacted with doctors in Mississippi regarding transfers and the like.

 During the seven years of his practice, Ransom participated in continuing education programs on a nationwide and regional basis and many of the programs included doctors from Mississippi. He has had the occasion to talk with them about medical issues generally and more specific matters relating to their practice of emergency medicine. One of the continuing education activities that Dr. Ransom has been involved in is the Southeastern Conference on ...


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