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GABE BYRD AND ELLA MAE BYRD v. J. ELMER NIX

SEPTEMBER 13, 1989

GABE BYRD AND ELLA MAE BYRD
v.
J. ELMER NIX, M. D.



BEFORE ROY NOBLE LEE, ANDERSON AND BLASS

ANDERSON, JUSTICE, FOR THE COURT:

Gabe and Ella Mae Byrd (the Byrds), plaintiffs below and appellants here, sued Dr. J. Elmer Nix (Dr. Nix), defendant below and appellee here, for medical malpractice and sought to recover for personal injury, loss of income, loss of consortium and other damages. Specifically, the Byrds alleged that Dr. Nix failed to exercise the appropriate standard of care in the post-operative stage of Gabe Byrd's (Gabe) treatment. Aggrieved by the verdict of the jury in favor of Dr. Nix, the Byrds perfected this appeal. Finding no merit to any of the issues, we affirm the judgment of the lower court. In affirming, we address one of the five assigned errors because the issue of telephonic testimony raises a question of first impression for the Court.

FACTS

 On Thursday, February 17, 1983, Dr. Nix performed spinal fusion surgery on Gabe's back in Hinds General Hospital located in Jackson, Mississippi. This was Gabe's fourth surgery on his back and the second performed by Dr. Nix. Approximately one hour after surgery, Dr. Nix left the hospital and did not examine Gabe again until the following Wednesday, February 23, 1983.

 The Byrds alleged that when Dr. Nix allowed a six-day period

 to elapse before post-surgical examination, he deviated from the accepted medical standards and thereby caused Gabe's physical impairment. Specifically, the Byrds alleged that Gabe suffered, among other things, a permanent neurogenic bladder, permanent drop foot, a shrunken left leg, and sexual impotence.

 Dr. Nix explained that his regular hospital rounds were scheduled for Wednesdays. He was associated, however, with several other physicians and one of Dr. Nix's partners examined Gabe on the Friday morning following his surgery.

 Gabe's medical chart evinced that his overall progress was satisfactory, but it did not show that a neurological examination was performed on Gabe immediately after surgery. The Byrds' expert, Dr. Roy Selby, testified by videotape deposition at trial, and opined that Gabe had a hematoma (blood clot) immediately after surgery which caused neurological problems. Dr. Selby testified that a neurological examination would have prevented Gabe's impairment and that Dr. Nix deviated from accepted medical standards in not performing such an examination.

 Dr. Nix' expert, Dr. Patrick Barrett, testified contrary to Dr. Selby's opinion. Dr. Barrett testified further that the" hemovac "device inserted in Gabe after surgery served as a preventive measure of hematoma. The Byrds argued that Dr. Barrett's testimony raised a new issue and therefore, they had a right to offer rebuttal testimony. In an effort to rebut the newly-raised issue, the Byrds sought to offer the telephonic testimony of Dr. Selby, located in Texarkana, Texas. The Byrds were ready to present such testimony by speaker-phone which had been installed and tested in the courtroom.

 The court was willing to allow the Byrds to offer in-court rebuttal testimony, but would not permit Dr. Selby to testify by telephone. In overruling the Byrds' motion the court stated:

 In this particular case, you are asking that a witness testify, but just not be present in the courtroom. As I have stated to you in camera, I still believe that the fact that the jury is not able to view the witness, not able to determine the demeanor and the physical appearance of the witness, I certainly don't mean to indicate that there would be anything improper done in the event the Court should allow this, but in practicality the Court would have no way of really knowing the identity of the person on the other end of the telephone without being able to see them and hear them and swear them in. The court would have absolutely no control over the witness. Not only would they be not in the courtroom, but even outside the

 jurisdiction of the court; and the witness might take off on any course of conduct that he should see fit, and there would be absolutely no remedy this court would have should the witness do so. Documents in evidence which the defendant may wish to cross examine the witness on would not be able to be presented to the witness. He could not see it or review those documents, and the process would be just much too cumbersome and to [sic] inexact for the court to permit this type of testimony to be brought before the jury. So the motion would be overruled.

 The Byrds then informed the court that Dr. Selby suffered from a severe heart condition, which prohibited him from traveling, and as a rule, testified only by deposition. The court found that the Byrds knew of Dr. Selby's condition prior to employing him as an expert, and that his condition ...


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