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Bolton v. Weiner

Court of Appeals of Mississippi

June 24, 2014

BARBARA ANN THOMPSON BOLTON, APPELLANT
v.
ROGER WEINER, M.D., APPELLEE

Page 333

[Copyrighted Material Omitted]

Page 334

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/14/2012. TRIAL JUDGE: HON. JOHNNIE E. WALLS JR. TRIAL COURT DISPOSITION: GRANTED APPELLEE'S MOTION IN LIMINE TO STRIKE THE TESTIMONY OF APPELLANT'S EXPERT WITNESS AND APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

FOR APPELLANT: ALLAN D. SHACKELFORD.

FOR APPELLEE: DIANE PRADAT PUMPHREY, L. CARL HAGWOOD, MARY FRANCES STALLINGS-ENGLAND.

BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR AND JAMES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 335

CARLTON, J.

¶1. Barbara Bolton filed a medical-malpractice claim against Dr. Roger Weiner, alleging negligence in his care and treatment of her. The Coahoma County Circuit Court granted both Dr. Weiner's motion in limine to strike the testimony of Bolton's expert witness and Dr. Weiner's motion for summary judgment. Bolton appeals the circuit court's judgment and raises the following issues: (1) whether the circuit court judge erred by admitting a journal article into evidence over Bolton's objection; (2) whether the circuit court judge erred by granting Dr. Weiner's motion in limine to strike the testimony of Bolton's expert witness; and (3) whether the circuit court judge erred by granting Dr. Weiner's motion for summary judgment. Finding no error, we affirm.

FACTS

¶2. Between April 4, 2002, and November 8, 2002, Dr. Weiner, a cardiologist, treated Bolton for her heart problems. During the course of treatment, Dr. Weiner prescribed Cordarone [1] for Bolton. After Bolton started taking Cordarone, she noticed that her vision began to blur. The condition worsened, and Bolton consulted Dr. Richard Drewry, a neuro-ophthalmologist, who believed her loss of sight was related to Cordarone.

¶3. Bolton filed a lawsuit against Dr. Weiner, alleging medical negligence. Bolton retained the services of Dr. Keith Mansel, an internist practicing primarily in the field of pulmonology, to review her records. Specifically, Bolton sought Dr. Mansel's opinion on whether Dr. Weiner had breached the standard of care by: (1) failing to warn her of the potential vision problems caused by Cordarone; and (2) failing to advise her to schedule regular eye examinations with an ophthalmologist.

¶4. Dr. Mansel testified at his deposition that a physician who prescribes a drug should possess knowledge of the drug and its side effects. Dr. Mansel further testified that the physician should not only warn patients about the side effects but should also advise them of any follow-up they might need. According to Dr. Mansel, this standard did not vary from specialty to specialty. Therefore, although not a cardiologist like Dr. Weiner, Dr. Mansel testified that in his opinion Dr. Weiner breached the standard of care by failing to refer Bolton for periodic eye examinations. Dr. Mansel also testified that a physician should make sure to inform patients of any potentially severe side effects that a drug might have, and he stated that he considered blindness to be a severe side effect.

¶5. When asked whether he agreed with Dr. Drewry's deposition testimony that no medical literature existed to indicate a direct causal relationship between amiodarone and optic neuropathy, Dr. Mansel responded, " I would certainly defer to Dr. Drewry's opinion and would agree with that." Dr. Mansel further testified that he based his opinion regarding the proper standard of care on medical literature he read. He could not remember any specific literature other than the 2002 version of the Physicians' Desk Reference (PDR), which he considered to be very authoritative and " the primary reference that physicians use about medications." The PDR, which provides a compilation of drug manufacturers' medication package inserts, states the following:

Page 336

Cases of optic neuropathy and/or optic neuritis, usually resulting in visual impairment, have been reported in patients treated with amiodarone. In some cases, visual impairment has progressed to permanent blindness. Optic neuropathy and/or neuritis may occur at any time following initiation of therapy. A causal relationship to the drug has not been clearly established. If symptoms of visual impairment appear, such as changes in visual acuity and decreases in peripheral vision, prompt ophthalmic examination is recommended. Appearance of optic neuropathy and/or neuritis calls for re-evaluation of Cordarone therapy. . . . Regular ophthalmic examination, including fundoscopy and slit-lamp examination, is recommended during administration of Cordarone.

Physicians' Desk Reference 3489 (2002) (emphasis added).

¶6. Trial for this case was scheduled for July 30, 2012. Although both Dr. Drewry and Dr. Mansel would be unavailable for trial, Bolton planned to introduce their deposition testimony during the proceedings. On July 27, 2012, however, Dr. Weiner filed a motion in limine to strike Dr. Mansel's expert testimony and an ore tenus motion to strike Dr. Drewry's causation testimony. In support of ...


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