of Judgment: 04/06/2015
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
IRVING, P.J., FAIR AND WILSON, JJ.
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.
We find no error in the trial court's rulings and,
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. 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.
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."
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,
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."
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. 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 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.
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, ...