CHARLES NORMAN, JR., INDIVIDUALLY AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF CHARLES NORMAN, SR., AND THE ESTATE OF PAT NORMAN
ANDERSON REGIONAL MEDICAL CENTER
OF JUDGMENT: 12/01/2016
LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON,
COURT ATTORNEYS: H. WESLEY WILLIAMS, III CHRIS J. WALKER
CLAIRE FRANCES STAMM ROMNEY HASTINGS ENTREKIN PEELER GRAYSON
LACEY, JR. SHIRLEY M. MOORE
ATTORNEYS FOR APPELLANT: CHRIS J. WALKER, H. WESLEY WILLIAMS,
ATTORNEYS FOR APPELLEE: ROMNEY H. ENTREKIN P.GRAYSON LACEY,
JR. SHIRLEY M. MOORE BENJAMIN B. MORGAN
WALLER, CHIEF JUSTICE.
The estate and beneficiaries of Charles Norman, Sr., appeal
the trial court's exclusion of Norman's medical
experts and grant of summary judgment in favor of Anderson
Regional Medical Center. Because the trial court properly
found that Norman's experts' testimony lacked
sufficient foundation in the medical literature and because
no genuine issue of material fact remains, we affirm.
AND PROCEDURAL HISTORY
On December 12, 2011, Charles Norman, Sr., was admitted to
Anderson Regional and underwent a cardiac catheterization
with stent placement, which was performed by his
cardiologist, Dr. Michael Purvis. Dr. Purvis performed the
procedure without significant complication, and he expected
to discharge Norman two days later.
At some point during the overnight hours of December 13 to
14, 2011, Norman suffered an ischemic stroke. Norman's
wife complained to nursing staff that she observed symptoms
of a stroke as early as 7:00 a.m. the next morning, which the
nurses documented in Norman's chart at 8:00 a.m. Neither
Dr. Purvis nor any other medical doctor was notified of the
stroke until much later in the day. In fact, Dr. Purvis first
became aware of the stroke when he made his rounds around
2:30 that afternoon. Dr. Purvis then consulted Dr. Jimmy
Wolfe, a neurologist, who performed a CT scan that confirmed
Norman had suffered a stroke. By the time the doctors became
aware of the stroke (at least seven and a half hours after
Norman's wife first complained to the nursing staff), the
time frame within which tissue plasminogen activator
("tPA")-a "clot-buster" drug used to
restore blood flow to a stroke victim's brain-is to be
effectively administered had passed.
Norman remained at Anderson Regional two to three days after
he had his stroke. He was then transferred to a step-down
unit for rehabilitation before finally being transferred to
Bedford Nursing Home at Marion, Mississippi, where he
remained for the rest of his life. Following the stroke,
Norman could no longer care for himself, provide for his
family, or enjoy the quality of life he was accustomed to.
Norman sued Anderson Regional a little more than a year
before his death in the Circuit Court of Lauderdale County.
Both Norman and his wife have since died. The decedents'
estates were substituted as plaintiffs and real parties in
interest. Norman alleges that Anderson Regional, by and
through the nurses on duty when Norman suffered the stroke,
was negligent in its care and treatment of Norman in December
Anderson Regional subsequently stipulated that its nurses
breached the applicable standard of care by not recognizing
and reporting Norman's stroke symptoms to a physician
earlier. Anderson Regional further conceded that the nursing
staff's delay in reporting Norman's stroke prevented
the possible administration of tPA. Anderson Regional,
however, denied that Norman was ever a candidate for tPA
administration, noting that Norman was a "75-year-old,
brittle diabetic with a relevant medical history that was
positive for atrial fibrillation, hypertension, low ejection
fraction, and coronary artery disease."
Anderson Regional filed motions to strike and/or exclude
Norman's experts: Dr. Harmut Uschmann, Dr. Michael
Winkelmann, and Dr. Daisy Marie Thomas. Dr. Uschmann and Dr.
Winkelmann both opined that Norman would have had a greater
than 50 percent chance of a better outcome had Anderson
Regional complied with the applicable standard of care and
administered tPA in a timely fashion. Dr. Thomas opined that
Anderson Regional's failure to give Norman tPA prevented
his recovery and contributed to his death.
Anderson Regional filed its motion for summary judgment based
on the premise that Dr. Uschmann's testimony should be
excluded. After hearing arguments, the trial court
entered its Memorandum Opinion and Order granting summary
judgment in favor of Anderson Regional. The trial court
concluded that Norman's experts' opinions were
neither based on nor supported by reliable data (i.e., the
medical literature) regarding the probability tPA would have
been effective even if it had been timely administered. As a
result, Norman failed to prove by a preponderance of the
evidence that he would have had a greater than 50 percent
probability of a substantially better outcome had his stroke
been timely diagnosed and had tPA been timely administered.
Norman now appeals.
This appeal challenges this Court's longstanding
precedent adopting the loss-of-chance causation standard in
medical-malpractice cases. For Norman to recover under our
loss-of-chance causation standard, he must prove a greater
than 50 percent chance of a substantially better outcome had
Anderson Regional timely recognized and reported his stroke
and administered tPA.
This Court reviews a trial court's grant of summary
judgment de novo. Kilhullen v. Kan. City S. Ry., 8
So.3d 168, 174 (Miss. 2009). Summary judgment is appropriate
when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Miss. R. Civ. P. 56(c).
Evidence will be viewed in the light most favorable to the
nonmoving party. Kilhullen, 8 So.3d at 174-75.
Whether the trial court properly excluded
Norman's experts and granted summary
judgment on the basis that the expert opinions lacked
sufficient foundation in the medical literature.
To establish a prima facie case of medical
malpractice under Mississippi law, a plaintiff must prove by
a preponderance of the evidence (1) the applicable standard
of care; (2) a failure to conform to the required standard;
and (3) an injury proximately caused by a defendant's
noncompliance with the standard. Mem'l Hosp. at
Gulfport v. White, 170 So.3d 506, 508 (Miss. 2015). As a
rule, the plaintiff must demonstrate each of these elements
through medical-expert testimony, and the expert must
articulate and identify the standard of care that was
breached and establish that the breach was the proximate
cause or the proximate contributing cause of the alleged
injuries. Hubbard v. Wansley, 954 So.2d 951, 957
(Miss. 2007). Because Anderson Regional stipulated it
breached the standard of care, this Court's analysis
focuses solely on the issue of causation.
Mississippi law does not require a plaintiff to prove
causation with certainty. Clayton v. Thompson, 475
So.2d 439, 445 (Miss. 1985). Mississippi law requires proof
of causation to a degree of reasonable medical probability
that-absent the alleged malpractice-a significantly better
result was probable, or more likely than not (i.e., a greater
than 50 percent chance of a substantially better outcome than
was in fact obtained). Id.; Ladner v.
Campbell, 515 So.2d 882, 889 (Miss. 1987). In
Mississippi, the threshold of proof required for recovery has
been termed the "loss of chance." Clayton,
475 So.2d at 444.
This Court first addressed Mississippi's loss-of-chance
standard in Clayton, in which we concluded that
"Mississippi law does not permit the recovery of damages
because of mere diminishment of the 'chance of
recovery.'" Id. at 445. Clayton
clearly placed Mississippi in line with those jurisdictions
that require a plaintiff to show that "proper treatment
would have provided the patient 'with a greater than 50
percent chance of a better result than was in fact obtained,
'" and Ladner reaffirmed the notion first
established in Clayton that a mere "better
result absent malpractice" fails to meet the
requirements of causal connection. Ladner, 515 So.2d
at 889. This Court has since applied Mississippi's
loss-of-chance standard consistently in cases such as
Hubbard and White, adhering to our current
and longstanding precedent that "[p]ossibilities will
not sustain a verdict." Kramer Serv., Inc. v.
Wilkins, 184 Miss. 483, 497, 186 So. 625, 627 (1939)
(quoting Il ...