OF JUDGMENT: 08/21/2015
LEFLORE COUNTY CIRCUIT COURT HON. MARGARET CAREY-MCCRAY JUDGE
ATTORNEYS FOR APPELLANT: JAMES LAWRENCE WILSON IV TOMMIE G.
ATTORNEYS FOR APPELLEE: TIMOTHY W. PORTER JOHN TIMOTHY GIVENS
LEE, C.J., FAIR AND GREENLEE, JJ.
Jacqueline Deal filed this medical-negligence action
against Greenwood Leflore Hospital (GLH) for personal
injuries she sustained when a 4x4-inch piece of gauze was
found in a wound in her left thigh. She was awarded damages
after a bench trial. The judge denied GLH's motion for
involuntary dismissal and later denied its motion to alter or
amend the judgment or, in the alternative, motion for a new
trial. On appeal, GLH argues that the trial court erred in
admitting testimony from Deal's expert and in denying
GLH's motion for involuntary dismissal. Finding no error,
AND PROCEDURAL HISTORY
On November 7, 2007, Deal sustained a serious injury to her
left thigh when she was dragged by her car down the side of
the road. Over the next three months, Deal was treated by
various hospitals, including GLH, where a surgery to
partially close the wound was performed on January 18,
2008. After Deal was discharged from GLH on
February 14, 2008, she received outpatient wound care, which
included wet-to-dry dressing changes using gauzes, performed
mostly by GLH's Wound Care/Hyperbaric Center.
In March 2008, Deal was evaluated for a possible
skin-grafting procedure at GLH by Dr. John Payne. Her wound
at that time was almost completely healed except for a deep
penetrating wound to the left-groin area, which had developed
purulent drainage. Dr. Payne determined that he was unable to
perform the skin graft, rather referring Deal to the
wound-care clinic for a wound VAC and antibiotics. In between
trips to the wound-care center, Deal continued to have her
dressings changed at her home by Continue Care Home Health
and her sister.
On her May 5, 2008 visit to the wound-care center, Deal's
wound had almost completely healed except for a small opening
near her groin that emitted purulent odor. By May 8, 2008,
the drainage coming from the small opening had increased, and
on June 11, 2008, the drainage became bloody; her pain
increased. On July 1, 2008, the pain became significant, and
Deal reported to the GLH emergency room, where she was
treated and instructed to follow up with Dr. Payne.
On July 15, 2008, Deal returned to the wound-care center
where it was discovered that her wound had worsened with
purulent yellowish, brownish, greenish drainage; a foul odor;
and what appeared to be an abscess. She was admitted to GLH
where an MRI was conducted. It revealed fluid collection
consistent with a subcutaneous abscess. On July 18, 2008, a
nurse performed a pulse lavage in the wound, which resulted in
the nurse seeing something in the wound, and, using tweezers,
the nurse removed a 4x4-inch piece of gauze from the wound.
Deal filed suit seeking damages from GLH on August 30, 2009,
and on September 30, 2009, she amended her complaint. The
amended complaint alleged that GLH breached the applicable
medical standards of care in treating her wound and causing a
delay in the healing process. On November 5, 2009, GLH
answered and moved to dismiss the complaint for lack of
pretrial notice. After a hearing on the matter, the trial
court denied GLH's motion to dismiss, and discovery
ensued. During discovery, Dr. Carrol McLeod was designated as
Deal's expert, and on January 11, 2011, GLH deposed Dr.
The court held a bench trial from April 18-21, 2011. GLH
objected to Dr. McLeod testifying as to the standard of care
of a wound-care professional. The judge considered the
objection, allowed Dr. McLeod to testify as an expert in pain
management and anesthesiology, and permitted Dr. McLeod to
"give opinions about the effect of having a foreign body
in a wound." After cross-examination, GLH moved to
exclude Dr. McLeod's testimony based upon Deal's
failure to timely supplement Dr. McLeod's opinions and
Dr. McLeod's lack of qualifications. The judge denied
At the close of Deal's proof, GLH moved for involuntary
dismissal pursuant to Mississippi Rule of Civil Procedure 41,
arguing that Deal had not articulated an objective standard
of care for any medical professional in any specialty or
field of practice. Further, GLH re-urged its motion to strike
Dr. McLeod's testimony for failure to supplement the
disclosures of his trial court opinions. The trial court
denied GLH's motions.
On September 8, 2015, the trial court issued its
"Findings of Fact and Conclusions of Law, " finding
that Deal's wound was delayed in healing because of the
4x4-inch piece of gauze left in her wound between January and
February while at GLH. Further, the court found that due to
GLH's negligence, Deal was unable to obtain a teaching
contract for the 2008-09 school year. Therefore, the trial
court awarded Jacqueline $185, 000 in compensatory damages.
Unhappy with the trial court's decision, GLH moved to
alter or amend the judgment pursuant to Mississippi Rule of
Civil Procedure 59. Alternatively, GLH requested a new trial.
The trial court denied GLH's post-trial motion.
Aggrieved, GLH appeals.
"In reviewing the decision of a trial judge sitting
without a jury, this Court may only reverse when the findings
of the trial judge are manifestly wrong or clearly
erroneous." Sacks v. Necaise, 991 So.2d 615,
619 (¶6) (Miss. Ct. App. 2007) (citing Singley v.
Smith, 844 So.2d 448, 451 (¶9) (Miss. 2003)). When
sitting without a jury, a trial judge's findings are
reviewed with the same deference as a chancellor-his or her
findings will not be overturned if supported by substantial,
credible, and reasonable evidence. Delta Reg'l Med.
Ctr. v. Taylor, 112 So.3d 11, 20 (¶21) (Miss. Ct.
App. 2012). "Additionally, when sitting as the finder of
fact, the trial judge has the sole authority for determining