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DAN REIKES, M.D., CARL HALE, M.D., D. G. KOBS, JR., M.D., AND CHARLES E. STRAUSS, M.D. v. LAVERNE MARTIN AND GARLON MARTIN MISSISSIPPI MEDICAID COMMISSION

MAY 22, 1985

DAN REIKES, M.D., CARL HALE, M.D., D. G. KOBS, JR., M.D., AND CHARLES E. STRAUSS, M.D.
v.
LAVERNE MARTIN AND GARLON MARTIN MISSISSIPPI MEDICAID COMMISSION, STATE OF MISSISSIPPI



ON PETITION FOR REHEARING

EN BANC.

HAWKINS, JUSTICE, FOR THE COURT:

The appellee Mrs. Martin and her husband Garlon Martin have filed a petition for rehearing, which is denied. We are making amendments in the original opinion, however, and to avoid confusion, the original opinion is withdrawn and the following shall be the opinion of the Court in this case.

 This is an appeal from the Circuit court of Forrest County, Mississippi, involving a medical malpractice claim against the appellant doctors, Honorable Jack Weldy, Circuit Judge presiding. At the conclusion of the first trial, the jury returned a verdict against the doctors for $300,000.00 in favor of Mrs. Martin and $40,000.00 in favor of Garlon Martin.

 Subsequent to the above verdict, the defendant doctors filed a motion for a new trial alleging thirty-two grounds in support thereof. This motion was overruled.

 The plaintiffs, Mr. and Mrs. Garlon Martin, filed a motion for a new trial claiming that the damages awarded were inadequate and requested in the alternative that the trial court enter an additur. On the plaintiffs' motion for a new trial or, in the alternative, an additur, the court ruled:

 IT IS THEREFORE ORDERED AND ADJUDGED that the plaintiff, Laverne Martin, be and hereby is granted an additur of $200,000.00 and the defendants are given thirty (30) days in which to accept or reject said additur by a written notice to plaintiffs and the court. A new trial on the question of damages only is granted if the defendants, Reikes, et al, reject the additur.

 The doctors declined to accept the additur and a new trial was ordered on the question of damages only. The second trial resulted in a verdict in favor of Laverne Martin alone in the amount of $543,750.00.

 The doctors have perfected their appeal from the court's order granting a new trial to plaintiffs on condition of additur and from denying defendants' motion for a new trial on all issues. They have assigned nine errors seeking reversal.

 The record *fn1 discloses that in late 1974 Mr. Martin was referred by her family physician, Dr. Leggett, to Dr. J. P. Culpepper, III, a general surgeon in Hattiesburg, who performed a hysterectomy, i.e., the removal of the uterus. Subsequent tests on the uterus revealed that Mrs. Martin was suffering from uterine cancer. Dr. Culpepper submitted the findings to a conference of doctors who recommended that Mrs. Martin undergo cobalt radiation therapy to reduce the risk of future cancer.

 She was referred to the defendant doctors who were partners in a radiology group for this treatment. The treatments were rendered on an outpatient basis and consisted of twenty-three treatments over a period of thirty-one days from February 24 until March 26, 1975. The treatments were administered alternately to the lower abdomen and the lower back.

 Mrs. Martin claims that during the first week of treatments she experienced several side effects including nausea, diarrhea, and redness of the skin at the places where the radiation was administered. She also claims that the skin irritation developed into blisters within two weeks. However, no blisters were ever observed by any of the physicians, including Dr. Culpepper or her family physician, Dr. Leggett, who saw her twelve times during the period of her treatment.

 After the treatments were completed, Mrs. Martin continued to see Dr. Leggett on a regular basis; yet she never reported any skin problems to him.

 After all treatments were completed, most of the side effects, such as nausea, diarrhea, and redness of the skin gradually disappeared, although she testified she experienced back pain. She testified that in August of 1975 the back pain became worse and was accompanied by a rotten odor. At this time Dr. Leggett found a sore (ulcer) on the lower part of her back. (From the time the cobalt treatments were completed until August, Mrs. Martin spent a great deal of time in bed.) Treatment of the sore was unsuccessful and she was referred to Dr. Jabalay, a plastic suregon, who removed part of the coccyx (a part of the tailbone) and a portion of

 the sacrum, and by plastic surgery repaired the sores.

 Mrs. Martin was bedridden and unable to walk after the plastic surgery which was performed at the University Medical Center. She had developed a contracture of her right leg in the hospital and was sent to the Methodist Rehabilitation Center in an attempt to correct the problem. She remained there for approximately one month.

 Thereafter, in the Fall of 1977 Mrs. Martin developed a sore in her lower abdomen and was again admitted to the University Medical Center and was successfully treated by Dr. Jabalay. Mrs. Martin contends that she is permanently disabled as a result of the defendant doctors improperly administering the cobalt radiation treatments and that her subsequent complications, i.e., sores (ulcers) and contracture of her leg resulted from the alleged improper radiation treatments.

 Garlon Martin claims loss of consortium as a result of the alleged improper treatments.

 The record discloses that prior to the radiation treatments Mrs. Martin suffered from severe arthritis, high blood pressure, kidney and gallbladder problems and anxiety.

 The doctors contended that the sores on Mrs. Martin's back and abdomen were not caused by their treatment or any lack of care and skill on their part but were decubitus ulcers (i.e., ordinary pressure sores), which coincidentally developed several months after the treatments were administered in the area where she has received the treatments. Mrs. Martin also has sores on both sides of her hips but she does not contend that they were caused by the radiation treatments.

 The appellants assign as error that the court erred in instructing the jury that the plaintiffs were not contributorily negligent, where proof in the record showed Laverne Martin had not sought follow-up treatment and had been neglectful of her own physical condition.

 The plaintiffs (appellees here) requested and the court granted Instruction P-13, which states:

 The court instructs you that Laverne Martin and Garlon Martin are in no way negligent in this case and you cannot contribute any negligence to them.

 Our statute provides that" All questions of negligence and contributory negligence shall be for the jury to determine. "Miss. Code Ann. 11-7-17 (1972).

 In this case, there was conflicting evidence as to whether Laverne Martin's negligence contributed to her own injuries and damages. The doctors testified that it was their practice to always tell a patient to return in approximately two weeks for a follow-up observation and Mrs. Martin failed to do this. They also contended that Mrs. Martin did not promptly advise any of her attending physicians of the blisters and ulcers until the ulcers had reached a severe state and emitted a rotten odor. It was also the doctors' contention that Mrs. Martin's condition was aggravated by her unnecessarily remaining in bed for long periods and not properly caring for herself considering her condition.

 Therefore, it was reversible error for the judge to remove this question from the jury's consideration.

 Mrs. Martin asserts on her petition for rehearing she was entitled to this peremptory instruction to the jury that she was not guilty of any negligence because the doctors had not pleaded contributory negligence. Even though contributory negligence is not pled by the defendant, the issue may still be considered by the jury. See: Gilliam v. Sykes, 215 Miss. 54, 61 So.2d 672 (1953); Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160 (1954); Medley v. Carter, 234 So.2d 334 (Miss. 1970); Carr v. Cox, 255 So.2d 317 (Miss. 1971); City of Indianola, for Use of Kirkpatrick v. Love, 227 Miss. 156, 85 So.2d 812 (1956).

 Under the unusual facts in this case, it was error for the trial court to remove this issue from consideration by the jury.

 The appellants also assign as error that the court erred in giving several substantive jury instructions at plaintiffs' request, where such instructions omitted necessary elements of the causation and standard of care, injected issues not a part of the case for the jury's consideration, and commented upon the evidence.

 The appellants first complain of Instruction P-5a:

 The Court instructs the jury that if you find from a preponderance of the evidence that

 the defendant doctors, and/or their employees, failed to render a proper post cobalt therapy treatment to Laverne Martin by having Laverne Martin return for post therapy observations and physical examination, and if you further find that the failure to perform post therapy examination of Laverne Martin departed from the standard of care which a person such as Laverne Martin might reasonably expect from the defendant doctors in the specialty of radiology ...


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