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R. S. CLAYTON, M. D. v. MICHAEL B. THOMPSON

AUGUST 28, 1985

R. S. CLAYTON, M. D.
v.
MICHAEL B. THOMPSON



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

The subject matter of this appeal is medical malpractice in which the plaintiff relies upon the theory of "loss of a chance" of "greater" recovery.

This medical malpractice suit was filed by Michael B. Thompson against R. S. Clayton, M. D., in the Circuit Court of Pike County. The jury awarded Thompson $75,000 damages. The circuit court granted a remittitur in the amount of $40,000 and, following acceptance of the remittitur, entered final judgment against Dr. Clayton in the amount of $35,000.

 Clayton appeals assigning as error:

 (1) The trial court erred when it qualified Dr. Hugh Robertson as an expert witness in the field of Diagnostic Radiology;

 (2) The trial court erred in failing to grant the motion of appellant Clayton for a directed verdict;

 (3) The trial court erred in overruling the motion of appellant Clayton for a new trial on the issue of liability;

 (4) The jury verdict of $75,000 and the trial court's final judgment of $35,000 are excessive and evidence extreme bias and prejudice against appellant Clayton by the jury in the trial court;

 (5) The trial court erred in failing to grant appellant Clayton's requested peremptory instruction; and in granting an instruction on behalf of the appellee regarding his theory of the case.

 Thompson cross-appeals assigning as error:

 (1) The trial court erred in granting a new trial as to damages unless the plaintiff accepted a remittitur of $40,000.

 I.

 On July 8, 1979, appellee Michael Thompson of McComb injured his thumb while playing in a softball tournament.

 The following day, Thompson went to see his family physician, Dr. John Boyd, who referred Thompson to the Southwestern Regional Medical Center for x-rays. The appellant, Dr. R. S. Clayton, chief radiologist at Southwest Medical Center, examined and interpretated x-rays of appellee Thompson's thumb and concluded in his written report that the x-rays revealed "no evidence of a fracture or dislocation."

 Dr. Boyd, relying on his visual examination of Thompson's thumb and the findings of Dr. Clayton, diagnosed Thompson's

 injury as a "sprained thumb" , prescribed medication for pain and recommended hot soaks.

 Approximately four months later, on November 19, 1979, appellee Thompson returned to Dr. Boyd complaining of continued problems with his thumb. Dr. Boyd again referred Thompson to the Southwest Regional Medical Center for x-rays. At this time, Dr. Clayton found that the x-rays indicated a fracture of the metacarpal phalangeal joint (joint connecting thumb to hand). Based on this report, Dr. Boyd referred Thompson to Dr. Wm. H. Meyer, an orthopedic surgeon. On January 18, 1980, Dr. Meyer performed surgery upon Thompson to repair the torn ligament of the metacarpal phalangeal joint. Two stainless steel pins were drilled into the bone of the thumb and placed across the joint to hold it in place while the ligaments healed. Very little mobility was recovered in the joint where the ligament reconstruction was attempted and, over the next several months, Thompson continued to complain of pain. On March 23, 1981, Dr. Meyer performed a second operation in order to fuse the joint of Thompson's thumb.

 As a result of the surgical fusion, Thompson can no longer bend the thumb joint. At trial, Dr. Meyer described Thompson's injury as permanent, with a resulting disability of 50 percent impairment to the thumb and 25 percent impairment to the hand. Dr. Meyer further testified that the chance of a more reasonable function of the thumb would have definitely been better if he had seen Thompson in July of 1979 rather than November of 1979.

 Dr. Hugh Robertson, associate professor of radiology at Louisiana State University School of Medicine was qualified as an expert and testified on behalf of appellee Thompson at trial. Dr. Robertson testified that his examination of the July 9, 1979 x-rays revealed three separate fragments of bone around the metacarpal phalangeal joint of the thumb. According to Dr. Robertson, the presence of the three fractures would be critical to a treating physician, and the diagnosis of Dr. Clayton, by its failure to mention these fractures, deviated from the average standard care applicable to radiologist.

 Dr. James M. Packer, a Jackson radiologist, was qualified as an expert and testified on behalf of the defendant that he found no fractures on the July x-rays of Thompson's thumb. Dr. John G. Caden, an orthopedic surgeon from Jackson, was qualified as an expert and testified for the defendant that no fractures or fragments of bone were visible in the July x-rays. Dr. Kenneth G. Carter, a Jackson radiologist, was qualified as an expert and testified for the defendant that he found nothing in the July x-rays that he would call a

 fracture. Carter, however, admitted that in a letter dated August 6, 1981, he stated that a review of the July x-rays revealed a tiny density overlying the first metacarpal head which "could represent a small cortical evulsion or might be nothing more than a film artifact." Dr. Carter explained that a cortical evulsion is a tiny splinter of bone which could be called a fracture.

 II.

 Did the trial court err in qualifying Dr. Hugh Robertson as an expert in the field of diagnostic radiology?

 Appellant objected at trial to the qualifications of Dr. Hugh Robertson as an expert in the field of diagnostic radiology based upon his absence of any familiarity with the standard of care applicable for a radiologist in McComb, Mississippi. The trial court overruled this objection and appellant assigns this ruling as error, relying on King v. Murphy, 424 So. 2d 547 (Miss. 1982).

 In the recent case of Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985) this Court stated that every doctor has a duty to use his or her knowledge and therewith treat through maximum, reasonable, medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options. "This Court held that a qualified medical expert witness may express an opinion regarding the meaning and import of the above duty of care given the peculiar circumstances of the case. The national standard of care announced by this Court in Hilbun contains a" resources - based caveat ", that is, the duty of care is based upon the use of such medical facilities, services, equipment and options as are reasonably available. In the case sub judice, there was no suggestion that the x-ray facilities and equipment available to Dr. Clayton at Southwest Medical Center were in any way more limited than that available in other areas of the country.

 Hall reaffirmed our general rule that a qualified expert witness may testify in cases where scientific or technical knowledge will be of assistance to the trier of the facts in determining a fact in issue. Hall, supra, at 873. Obviously, medical malpractice cases generally require expert witnesses to assist the trier of the facts to understand the evidence. Kilpatrick v. Mississippi Baptist Medical Center, 461 So. 2d

 765, 768 (Miss. 1984).

 It is apparent from this record that Dr. Robertson is in fact" qualified as an expert by knowledge, skill, experience, training or education. Hall, at p. 873; Hardy v. Brantley, 471 So. 2d 358, 366 (Miss. 1985). He was familiar with the x-ray equipment and facilities available to Dr. Clayton.

 In light of this Court's decision in Hall v. Hilbun, supra, which was expressly made retroactively applicable to "any case in which an appeal is pending and in which the issue has been preserved . . ." , qualification of Dr. Robertson as an expert in the field of diagnostic radiology was proper and appellant's first assignment of error is without merit. See Hardy v. Brantley at 366.

 III.

 Did the trial court err in failing to grant appellant's motion for a directed verdict?

 Appellant contends that the testimony of appellee's own orthopedic surgeon, Dr. William Meyer, so contradicted that of appellee's expert witness, Dr. Robertson, as to require a directed verdict for the appellant. At trial, Dr. Meyer testified that, while performing surgery on appellee's thumb, he did not observe any fractures in the area. The testimony of Dr. Meyer, an orthopedic surgeon, regarding his observations during surgery would not therefore negate the testimony of appellee's duly qualified expert in the field of diagnostic radiology.

 In determining whether to grant a directed verdict, "the Court must look solely to the testimony in behalf of the party against whom the directed verdict is requested and consider that testimony as true along with all inferences which could be drawn therefrom favorable to such party, and if such evidence could support a verdict for him, the directed verdict or peremptory instruction should not be given." Gates v. Murphree, 286 So. 2d 291, 292 (Miss. 1973). Hall v. Hilbun, supra, at 36-38.

 The trial court was of the opinion that Dr. Robertson's testimony created a jury issue on the question of defendant's liability. This Court has recognized that the trial judge's determination of whether or not a jury issue is tendered is entitled to great respect on appeal. City of Jackson v. Locklar, 431 So. 2d 475, 479 (Miss. 1983).

 This assignment of error is without merit.

 IV.

 Did the trial court err in overruling defendant's motion for a new trial on the issue of liability?

 Appellant offers no legal authority but simply submits that "by ordering a new trial on all issues in this case the trial court would have exhibited good judgment from the standpoint that throughout the entire proceedings there was only one witness, Dr. Hugh Robertson, who found fault with the work of the appellant." Appellant's argument here ignores the testimony of defense witness Dr. Carter, who conceded that a pretrial review of the July 9, 1979 x-rays of Thompson's thumb revealed a "tiny density" which "could represent a small cortical evulsion" . This cortical evulsion, which Dr. Carter admitted could be called a fracture, was in the same area where appellee's expert, Dr. Robertson, observed fractures.

 The granting or denial of a new trial in a civil case is a matter committed to the sound discretion of the trial judge. Such motions should be granted sparingly and only when the trial judge is convinced that the jury has wholly departed from its oath to follow the law and has been actuated by bias, passion and prejudice. Jesco, Inc. v. Whitehead, 451 So. 2d 706, 714-716, (Miss. 1984); Beard v. Williams, 172 Miss. 880, 884, 161 So. 750, 751 (1935).

 We find no basis for holding that the trial judge abused his discretion in this regard and thus conclude that this assignment of error is without merit.

 V.

 Was the jury's verdict of $75,000 and the trial court's final judgment of $35,000 against the overwhelming weight of the evidence and so excessive as to evidence extreme bias and prejudice?

 Appellant argues that the final judgment of $35,000 has no reasonable relationship to the facts of this case in light of the fact that appellee's total medical expenses were $3,0125.14.

 This Court generally will not vacate or reduce a damage award unless it is so "out of line as to shock the conscience of the court. City of Jackson v. Locklar, 431 So. 2d 475, 481 (Miss. 1983).

 VI.

 Did the trial court err in refusing to grant appellant's requested peremptory instruction and in granting appellee's requested instruction P-28?

 Appellant contends that a peremptory instruction should have been granted because plaintiff's case rested entirely upon the theory that an earlier referral to an orthopedic surgeon would have resulted in a greater chance for more flexibility of the thumb. Appellant argues that a" chance "of a better result is not a sufficient causal connection to justify imposition of liability in a medical malpractice case. Since these last two assignments of error deal with the same substantive issue, they will be addressed jointly.

 The instruction granted to the appellee covering his theory of the case is as follows:

 The Court instructs the jury that if you find by a preponderance of the evidence that defendant Dr. R. S. Clayton made an incorrect finding on the July 9, 1979 x-ray film of Plaintiff Michael B. Thompson, and you further find from the preponderance of the evidence that such an incorrect finding, if any, by Defendant, Dr. R. S. Clayton was a result of negligence under all the circumstances of this case and that Dr. John Wood Boyd used reasonable care in relying upon Dr. R. S. Clayton's report did not refer the plaintiff to the immediate attention of an orthopedic surgeon and if you further find from the preponderance of the evidence that immediate attention by an orthopedic sureion [sic] would probably have given Michael B. Thompson a good chance to recover greater flexibility of his left thumb, then you must find for Plaintiff Michael B. Thompson.

 The plaintiff's theory of his case was as follows:

 (1) That Dr. Clayton was under a duty to use minimally sound medical judgment in his reading of the plaintiff's x-rays, consistent with the level of expertise the doctor holds himself out to possess and consistent with the circumstances of the case, recognizing that the doctor is not liable per se for a mere error of judgment, mistaken diagnosis or occurrence of an undesirable result. Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985).

 (2) That Dr. Clayton failed to provide the required level of care by falling below objectively ascertainable

 minimally acceptable levels of competence in the interpretation of the x-rays, which failure constituted negligence.

 (3) That Dr. Boyd, the general practitioner used reasonable care in relying upon Dr. Clayton's report and not referring the plaintiff to the immediate attention of an orthopedic surgeon.

 (4) That permanent damage resulted to the plaintiff's thumb and hand as a whole which was proximately caused by the breach by Dr. Clayton of his duty.

 (5) And that immediate medical attention by an orthopedic surgeon immediately following the x-ray examination by Dr. Clayton would" probably "have given the plaintiff a" good chance "to recover" greater flexibility of his left thumb. "

 This theory of recovery has been termed the" loss of a chance "or" value of a chance. "Our Court has not addressed the theory before. The appellant raises the question here and asserts that the theory should not be accepted into our law because it falls short of requiring a causal connection between malpractice on the part of the physician and injury to the patient. See Dazet v. Bass, 254 So. 2d 183 (Miss. 1971); Hall v. Hilbun, supra. Appellant particularly challenges the instruction in two aspects, (1) absence of the requisite casual connection, and (2) inadequacy of guideline in jury's deliberation as to the measure of the injury.

 There was also evidence which, if believed by the jury, would establish that the erroneous diagnosis of Dr. Clayton was the proximate cause of the injury. This Court notes that proximate cause arises when the omission of a duty contributes to cause the injury. Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, (4th. Cir. 1962) cert. denied, 372 U.S. 913, 83 S. Ct. 728, 9 L.Ed.2d 721 (1963). Harvey v. Siller, 300 Mich. 510, 2 N.W.2d 483 (1942)." Proximate cause here is implicit in the breach of duty. Indeed, the duty would be empty if it did not itself embrace the loss as a consequence of its breach. "Gardner, supra, at page 287.

 This Court first observes that instruction P-28 only impliedly addresses proximate cause, but that two other granted instructions more than adequately cover the law on this point. Repeatedly, this Court has held that each instruction does not necessarily have to cover every element of the theory of the case, but that it is ...


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