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Thomas v. Purdy

Court of Appeals of Mississippi

April 4, 2017

PEGGY THOMAS APPELLANT
v.
DR. JAMES PURDY APPELLEE

          Date of Judgment: 04/06/2015

         COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: DAVID EARL ROZIER JR. J. KEITH PEARSON JENESSA JO CARTER HICKS SARAH LYNN DICKEY.

          ATTORNEYS FOR APPELLEE: GAYE NELL LOTT CURRIE DENNIS JASON CHILDRESS.

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          IRVING, P.J.

         ¶1. Peggy Thomas brought a medical-malpractice action against Dr. James Purdy. A jury found in favor of Dr. Purdy. Thomas appeals, asserting three issues: (1) whether the trial court erred in refusing to redact certain language contained in the medical records of Thomas's treating physicians; (2) whether the trial court erred in allowing one of Dr. Purdy's expert witnesses to testify; and (3) whether the trial court erred in denying Thomas's motion for a continuance of the trial.

         ¶2. We find no error in the trial court's rulings and, accordingly, affirm.

         FACTS

         ¶3. Thomas underwent a routine surgery for repair of a prolapsed bladder on January 15, 2010, at Rush Hospital in Meridian, Mississippi. Dr. Purdy, a gynecological surgeon, performed the surgery, which involved an anterior cystocele repair procedure using a Xenoform graft insertion. This type of procedure required Thomas's body to be placed in a particular position-referred to as a "lithotomy position"-during surgery, where she was to lie on her back with her thighs pressed apart. The procedure itself was uneventful; however, Thomas experienced post-surgical complications of sciatic nerve pain and foot drop.[1] Thomas claims that her nerve pain resulted from a stitch injury-i.e., that Dr. Purdy had injured her sciatic nerve as he was stitching up her bladder upon completion of the procedure. Dr. Purdy maintained that he examined Thomas after surgery and had at that time concluded that her sciatic nerve injury was not the result of a stitch. Dr. Purdy consulted Dr. Rafique Ahmad, a neurologist, and Dr. David Malloy, a neurosurgeon, regarding Thomas's nerve pain. Dr. Purdy ended his care of Thomas after consulting with these two physicians.

         ¶4. Thomas received physical examinations from Dr. Ahmad in 2010 and on several occasions thereafter, during which Dr. Ahmad made note of his opinion that Thomas had suffered a "[r]ight sciatic nerve axonal injury with foot drop, " and that Thomas's "[r]ight foot drop [was] probably secondary to L5, S1 lumbar radiculopathy. Other possibility could be common peroneal nerve palsy." Thomas additionally saw Dr. Malloy, who opined in his notes that Thomas had suffered a "[s]ciatic nerve injury, tibial and peroncal nerve, " with "[m]ultiple levels of degenerative change throughout the lumbar spine. Nothing surgical." Dr. Malloy further wrote that while he found evidence of a degenerative condition in Thomas's spine, "[t]his lady has suffered a sciatic stretch palsy . . . . Her symptoms are not arising from the mild degenerative changes noted in the lumbar spine MRI." Dr. Malloy wrote that he informed Thomas that "her injury [was] probably from a stretch injury to the nerve."

         ¶5. In February 2012, Thomas brought a medical-malpractice action against Dr. Purdy, Rush Hospital, and various Rush Hospital personnel, alleging that Dr. Purdy placed a stitch in or near Thomas's sciatic nerve during surgery and that he failed to take subsequent remedial measures to alleviate the injury. Further, Thomas alleged that Rush Hospital personnel failed to properly place Thomas in the surgical lithotomy position, causing the stretch injury to Thomas's sciatic nerve. The trial court granted summary judgment in favor of Rush Hospital and its personnel in December 2013. Thomas's claim against Dr. Purdy was set to go to trial on March 30, 2015.

         ¶6. On January 3, 2014, the circuit court issued an order limiting the testimony of Dr. Ahmad and Dr. Malloy to that of treating physicians under the Mississippi Rules of Evidence, and held that they could "testify as to their treatment of [Thomas] and their impressions of her injury but . . . not . . . as to the applicable standard of care or give an opinion as to any breach thereof."

         ¶7. On March 16, 2015, Thomas filed a motion to exclude the opinions of Dr. Ahmad and Dr. Malloy, arguing that such exceeded the scope of the court's January 3, 2014 order to only allow Dr. Ahmad and Dr. Malloy to testify as treating physicians.[2] Thomas also requested remedies "including but not limited to an order specifying the redaction of the treating physicians' causation opinions from the medical records in this matter." Thomas furthermore asserted that "because Dr. [James Martin] Tucker's supplemental opinions as to causation are solely based on the medical causation opinions of plaintiff's treating physicians, Dr. Tucker must not be allowed to present such testimony to the jury, as it does not qualify as an expert opinion." Thomas expounded upon this argument in a separate motion[3] also filed on March 16, 2015, wherein she argued that Dr. Purdy wrongfully waited until after the court granted summary judgment in favor of Rush Hospital to reveal the fact that Dr. Tucker believed that a stretch was the cause of Thomas's injury. Further, Thomas asserted that Dr. Purdy had conveyed exactly the opposite in his first two designations of Dr. Tucker as an expert-that he did not believe a stretch was a cause of Thomas's injury or that he had no opinion at all. Thomas argued that Dr. Tucker's revised opinion that Thomas suffered from a stretch injury was based solely on the causation opinions of Dr. Ahmad and Dr. Malloy, and that to base his opinion on such would be improper. Finally, Thomas argued that Dr. Tucker lacked the training and expertise regarding the subject in question. On March 18, 2015, the trial court denied Thomas's motion in limine regarding Dr. Tucker's testimony, as well as Thomas's motion in limine regarding the medical records and potential testimony of Dr. Ahmad and Dr. Malloy.

         ¶8. On March 27, 2015, Thomas moved for a continuance of the trial due to the unavailability of a purportedly material expert witness, Dr. David Preston, which was denied. Immediately prior to trial on March 30, 2015, Thomas moved to redact the word "stretch" in nine instances throughout the medical opinions of Dr. Ahmad and Dr. Malloy on the basis that Dr. Ahmad and Dr. Malloy were merely "lay treating physicians" who were not able to testify about causation. The trial court denied this motion as well, and trial commenced. On April 2, 2015, the jury returned a verdict in favor of Dr. Purdy. Thomas subsequently filed a motion for a new trial or, ...


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