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LORETTA ROSS BOYD v. DR. R. H. F. LYNCH & SHARKEY-ISSAQUENA COMMUNITY HOSPITAL

SEPTEMBER 10, 1986

LORETTA ROSS BOYD
v.
DR. R. H. F. LYNCH & SHARKEY-ISSAQUENA COMMUNITY HOSPITAL



BEFORE WALKER, C.J., PRATHER AND ANDERSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The sufficiency of proof necessary to sustain a cause of action in a medical malpractice suit against a treating" on-call "doctor, and a negligence suit against the hospital and its administrator is the subject of this appeal.

Loretta Ross Boyd filed a suit against Dr. R. H. F. Lynch and the Sharkey-Issaquena Community Hospital, its administrator and trustees, for alleged negligence in connection with the death of Boyd's two-year old son, Jeremy Ross. At the close of plaintiff Boyd's case in chief, Dr. Lynch made a motion for and was granted a directed verdict. Sharkey-Issaquena Hospital put on no defense, but received a unanimous jury verdict in its favor. Appellant Boyd appeals and assigns the following as error:

 (1) The trial court erred in granting defendant Dr. R. H. F. Lynch a directed verdict at the close of plaintiff's case.

 (2) The trial court erred in refusing to allow Dr. Edward Rose to testify as an expert with regard to hospital care.

 (3) The trial court erred in allowing voir dire examination of Dr. Rose to occur in the presence of the jury.

 (4) The trial court erred in refusing to allow Alyne Foresman to testify.

 On September 7, 1980, at approximately 2:30 a.m., the plaintiff, Loretta Ross Boyd, brought her 29 month old son, Jeremy Ross, to the emergency room at the Sharkey-Issaquena Community Hospital. Dr. R. H. F. Lynch was the physician" on call "for the hospital's emergency room that night.

 Mrs. Boyd and the child's grandmother, Mrs. Ross, informed both the licensed practical nurse (LPN) and the nurse's aid that Jeremy would not take water, had swollen glands in the neck, and was having difficulty breathing. After observing the child and obtaining a history from the child's mother and grandmother, LPN Stevens telephoned Dr. Lynch at home and related to him that the child had 103 degree fever, was unable to sleep, would not take water, had swollen glands around the throat, and had" raspy "respiration but good color. Dr. Lynch ordered that the child be admitted to the hospital, and given tests and treatment. Dr. Lynch also instructed the nurse to call him back if the child's condition got worse or if his temperature did not come down.

 Jeremy was placed in a hospital room with a baby bed and humidifier. His mother and grandmother stayed with him. The LPN administered a shot of penicillin, gave the child Tylenol and took throat swabs as ordered by the doctor. The child's temperature was taken several times, the last time at 4:30 a.m. At about 5:00 a.m., the grandmother rushed out in the hallway with Jeremy, who had unexpectedly stopped breathing. Dr. Lynch was telephoned immediately by a hospital employee and cardiopulmonary resuscitation was unsuccessfully attempted by the LPN.

 The child was pronounced dead upon Dr. Lynch's arrival. The mother filed suit against the hospital and Dr. Lynch, alleging that both parties were negligent and that such negligence resulted in Jeremy's death.

 II.

 Negligence as to the Physician

 Did the lower court err in granting defendant, Dr. R. H. F. Lynch, a directed verdict at the close of the defendant's case?

 When considering a motion for a directed verdict, all evidence in favor of the party against whom the motion is made must be considered as true and evidence of contradiction thereof must not be considered. See, e.g., White v. Hancock Bank, 477 So.2d 265 (Miss.1985), Hammond v. Grissom, 470 So.2d 1049 (Miss. 1985). This is the standard to be applied by an appellate court in evaluating a trial court's action in granting a directed verdict. This Court now addresses the plaintiff's proof in support of her claim that the general practitioner, Dr. Lynch, was negligent.

 For expert proof of the standard of care for a general practitioner, the plaintiff offered the expert testimony of Dr. Edward Rose of Red Bay, Alabama, who testified that Dr. Lynch was negligent in not acquiring more information about the child before attempting to diagnose and treat the illness.

 Dr. Rose testified that Dr. Lynch's only deviation from the standard of practice was that he should have obtained a pulse rate, a respiratory rate, and a better description of the child's general condition. On the other hand, however, Dr. Rose did admit that if Dr. Lynch obtained sufficient information from a nurse and had grounds to reasonably rely upon the competence of that nurse to report anything out of the ordinary, the doctor would not violate the standard of medical care for general practitioners. In the use of the term" nurse, "Dr. Rose defined nurse as a registered nurse who had been known to him for at least a six month period.

 Dr. Lynch had only known the licensed practical nurse Stevens for one month. The plaintiff contends that it is highly unlikely that a doctor could justifiably establish confidence that a nurse would accurately examine and report all symptoms of a patient within such a short time, and that this alone was sufficient to create a jury issue on negligence.

 In the opinion of Dr. Rose, the cause of the child's death was epiglottitis *fn1, but he admitted the disease to be a very rare and an extreme form of respiratory ailment which he has never seen in twelve years of medical experience. The treating doctor, Dr. Lynch, likewise testified that in forty years of active medical practice he ...


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