Ken E. CLEVELAND, George T. Smith-Vaniz, M.D., and Jackson HMA, Inc., d/b/a Central Mississippi Medical Center
Lanell HAMIL, Individually and on behalf of the Wrongful Death Beneficiaries of Emmett O. Hamil, Deceased, Who are Entitled to Recover Under the Wrongful Death and Survival Statute.
Whitman B. Johnson, III, Michael F. Myers, Lorraine Walters Boykin, Stephen P. Kruger, Jan F. Gadow, Kristopher Alan Graham, Mark P. Caraway, Cory Louis Radicioni, Jackson, attorneys for appellant.
Alton Earl Peterson, Larry Stamps, Jackson, Anita M. Stamps, attorneys for appellee.
ON WRIT OF CERTIORARI
DICKINSON, Presiding Justice
¶ 1. At trial in this medical-negligence case, the plaintiff's only expert abandoned his pretrial opinion and— over the objection of the defendant— testified to a new opinion that was never disclosed in discovery. The Court of Appeals reversed and remanded for a new trial. But because the trial court should have granted a judgment notwithstanding the verdict, we reverse in part and render judgment in favor of the defendant.
FACTS AND PROCEDURAL HISTORY
¶ 2. Emmett Hamil was admitted to Central Mississippi Medical Center, complaining
of severe abdominal pain. Dr. George T. Smith-Vaniz, a gastroenterologist, treated Hamil for gastrointestinal bleeding, and Dr. Ken E. Cleveland, a cardiovascular surgeon, surgically repaired his ulcer. After approximately one week, Hamil was discharged. The next morning, Hamil returned to the hospital complaining of further stomach pain and bleeding. Surgery revealed a second ulcer, which had eroded a large blood vessel and precipitated Hamil's death.
¶ 3. Lanell Hamil filed suit, alleging that the medical malpractice of Dr. Smith-Vaniz, Dr. Cleveland, and Jackson HMA caused the wrongful death of her husband. During discovery, Lanell Hamil's expert, Dr. Louis Silverman, opined that Hamil's doctors deviated from the standard of care by failing to prescribe anti-ulcer medication at Hamil's discharge and allowing the second ulcer to develop post-discharge.
¶ 4. At trial, Dr. Silverman admitted he later became aware that the doctors had prescribed such medication. But he had developed a new theory of the doctors' malpractice, opining over objection that, because the second ulcer was developing while Hamil was in the hospital, the doctors should have discovered it prior to Hamil's discharge. The plaintiff presented no additional expert testimony.
¶ 5. At the close of the plaintiff's case-in-chief, the circuit court denied a motion for a directed verdict by Dr. Smith-Vaniz, but granted a directed verdict in favor of Jackson HMA except for any vicarious liability it had through Dr. Smith-Vaniz. The jury returned a verdict in favor of the plaintiff against all three defendants, and the circuit court denied their motions for judgment notwithstanding the verdict (JNOV).
¶ 6. The Court of Appeals reversed the judgment against all three defendants.  The court rendered judgment for Dr. Smith-Vaniz because it found Dr. Silverman— a thoracic and cardiovascular surgeon— unqualified to render an opinion as to the standard of care for a gastroenterologist. Because Dr. Silverman was the plaintiff's sole expert and he was unqualified to testify against Dr. Smith-Vaniz, the court found that the plaintiff could not establish a prima facie case of medical malpractice and rendered judgment in favor of Dr. Smith-Vaniz. Further, because Jackson HMA was only vicariously liable for any negligence of Dr. Smith-Vaniz, the court rendered judgment in its favor.
¶ 7. The Court of Appeals found that Dr. Silverman was qualified as an expert to testify to the standard of care for Dr. Cleveland, but the court found that the circuit court had abused its discretion by overruling the objection to Dr. Silverman's previously undisclosed testimony. The court held that Dr. Silverman's new theory of Dr. Cleveland's ...