NED O. KRONFOL, M.D. APPELLANT
BARBARA S. JOHNSON APPELLEE
OF JUDGMENT: 12/21/2016
LEFLORE COUNTY CIRCUIT COURT TRIAL JUDGE: HON. CAROL L.
ATTORNEYS FOR APPELLANT: R.E. PARKER JR. CLIFFORD C. WHITNEY
III PENNY B. LAWSON
ATTORNEY FOR APPELLEE: CHYNEE ALLEN BAILEY
Barbara Johnson brought a medical malpractice suit against
Dr. Ned Kronfol for injuries she suffered from an infected
catheter in her dialysis port. After a trial on the matter,
the jury found Dr. Ned Kronfol one-hundred percent
responsible for Barbara Johnson's injuries and awarded
Johnson a total of $271, 000 in damages.
Dr. Kronfol now appeals the Leflore County Circuit
Court's final judgment and jury verdict. Dr. Kronfol also
appeals the trial court's order denying his motion for
summary judgment. Finding no error, we affirm.
In 2007, Johnson was diagnosed with kidney failure. As a
result of her diagnosis, Dr. John Lucas III, a surgeon at
Greenwood-Leflore Hospital (GLH) who specializes in
dialysis-access surgeries, performed a surgical procedure in
which he created a fistula on Johnson's right arm at her
wrist. Dr. Lucas explained that a fistula is a
"high-flow vein . . . close to the skin [and] connected
directly to [an] artery that has a lot of flow," which
allows the vein to tolerate kidney dialysis three times a
week. In 2010, due to clotting issues, Dr. Lucas performed
another surgical procedure, placing a fistula in
Johnson's left arm at her elbow. ¶4. From 2007
through May 2013, Johnson received dialysis through a port in
her right arm, and later left arm, approximately three times
a week at Fresenius Clinic. Dr. Ned Kronfol, a nephrologist
who treated Johnson at the Fresenius Clinic, was in charge of
her dialysis and kidney care.
On April 12, 2013, Johnson was unable to receive dialysis due
to access issues with the dialysis port in her left arm.
Staff members from the Fresenius Clinic referred her to GLH.
Dr. Donald Russell, an interventional radiologist at GLH,
attempted to perform a de-clot of Johnson's dialysis
port, but he was unable to do so. Dr. Russell then placed a
temporary dialysis port in Johnson's internal
jugular (neck) to allow her to be dialyzed. Johnson continued
to receive dialysis through the temporary port in her neck.
On April 16, 2013, Dr. Lucas performed a surgical procedure
on Johnson to try to restore flow in her fistula in her left
arm. Dr. Lucas testified that he was not able to restore the
flow to his satisfaction. As a result, Dr. Russell performed
a fistulogram procedure that same day, where he attempted to
open and stretch areas of Johnson's fistula. Dr. Lucas
testified that this procedure was also unsuccessful.
On April 30, 2013, Dr. Lucas surgically created a new fistula
for Johnson in her right arm. Dr. Lucas explained that since
most fistulas require around six weeks to mature, Johnson was
unable to immediately utilize that fistula.
On May 6, 2013, after receiving dialysis at the Fresenius
Clinic, Johnson presented to the emergency room (ER) at Delta
Regional Medical Center complaining of severe pain and
swelling in her face. Johnson was treated by Dr. Xander
Buenafe, a nephrologist, who diagnosed her with sepsis with
tachycardia arising from an infected
hemodialysis catheter in her internal jugular (neck).
Johnson received treatment at the hospital and was released
on May 15, 2013.
On August 21, 2014, Johnson filed a medical malpractice suit
against Dr. Lucas and Dr. Russell, alleging negligence in
their care, treatment, and usage of Johnson's
hemodialysis catheter. On September 17, 2014, Johnson amended
her complaint to include GLH as a defendant. On May 8, 2015,
Johnson sent Dr. Kronfol a notice of intent to sue, and on
July 8, 2015, she amended her complaint to add Dr. Kronfol as
On November 4, 2015, Dr. Kronfol filed a motion for summary
judgment and argued that Johnson failed to file her medical
malpractice claim within the two-year statute of limitations
as prescribed by Mississippi Code Annotated section
15-1-36(2) (Rev. 2012). In his motion, Dr. Kronfol also
argued that summary judgment was proper on the grounds of
judicial estoppel and lack of an expert. Dr. Kronfol claimed
that Johnson knew or should have known of his alleged
negligence on May 6, 2013, the day Johnson was diagnosed with
sepsis, because he had been her nephrologist since 2007 and
had referred her to GLH, where she was seen by Dr. Lucas and
Dr. Russell. Dr. Kronfol therefore argues that Johnson's
May 8, 2015 notice of intent to sue and July 8, 2015 amended
complaint adding Dr. Kronfol as a defendant were untimely and
should be barred.
On January 20, 2016, the trial court entered an order denying
Dr. Kronfol's motion for summary judgment. In its order,
the trial court stated that "Johnson gave deposition
testimony that she saw Dr. Kronfol or his nurses twice a week
for dialysis." The trial court also acknowledged that
when Johnson was asked if Dr. Kronfol sent her to GLH because
his staff was having problems dialyzing her, she answered,
"[y]es, that's it." However, the trial court
opined that "reasonable minds can differ" as to
whether Johnson's deposition testimony showed that she
knew or should have known of Dr. Kronfol's alleged
negligence in her injuries. The trial court explained that
"[a] full reading of the deposition supports
[Johnson's] contention that she thought that only Dr.
Lucas and Dr. Russell were involved in the installation of
her temporary catheter." The trial court therefore ruled
that since a genuine issue of material fact existed as to
when Johnson knew of Dr. Kronfol's alleged negligence,
summary judgment was improper.
A jury trial was held on December 12, 2016. After the trial,
the jury returned a verdict for Johnson and awarded her $225,
000 in noneconomic damages and $46, 000 in economic damages.
The jury found that Dr. Kronfol was 100% responsible for
Johnson's injuries. The trial court entered a final
judgment and jury verdict on December 21, 2016. Dr. Kronfol
then timely filed a motion for a judgment notwithstanding the
verdict (JNOV) or, in the alternative, for a new trial, which
the trial court denied. Dr. Kronfol now appeals.
On appeal, Dr. Kronfol asserts sixteen assignments of error,
which we quote as follows:
1. Whether the trial court erred in denying summary judgment
on the statute of limitations grounds.
2. Whether the trial court erred in failing to grant the
Defendant's Daubert challenge to Johnson's
expert's reliance upon "guidelines," which were
not the standard of care, were outdated and were not
3. Whether the trial court abused its discretion by allowing
Johnson's expert to testify about undisclosed opinions.
4. Whether the trial court erred in allowing a treating
physician to offer expert opinions about a temporary catheter
causing infection, when he was not designated to so testify.
5. Whether the trial court erred in preventing defense
counsel from informing the jury that Johnson had alleged that
Dr. Lucas and Dr. Russell were negligent and grossly
negligent in the treatment of Johnson, which caused or
contributed to her injuries.
6. Whether the trial court erred in excluding the testimony
of Dr. Lucas regarding the length of time to leave a
temporary catheter in place.
7. Whether the trial court erred in excluding deposition
testimony of Dr. Russell, which deposition was noticed by
counsel for Johnson.
8. Whether the trial court erred in allowing Johnson's
counsel to cross examine witnesses and parties with
statements made by other witnesses in their depositions.
9. Whether the trial court erred in not allowing into
evidence the package insert of the temporary catheter used on
10. Whether the trial court erred in sustaining Johnson's
objection to Dr. Kronfol's response to a cross
examination question regarding medical authorities and
granting a curative instruction.
11. Whether the trial court erred in allowing into evidence a
hospital bill as the proper predicate had not been laid for
its for its introduction.
12. Whether the trial court erred in failing to grant
Defendant's instruction on equally probable causes.
13. Whether the trial court erred in denying Dr.
Kronfol's motion to summons a new jury panel.
14. Whether the trial court erroneously denied Dr.
Kronfol's Batsonchallenge to the all-African
American jury and improperly refused to quash the jury panel.
15. Whether the trial court erred in not granting a directed
verdict/JNOV for Dr. Kronfol.
16. Whether the verdict was against the overwhelming weight
of the evidence, thus entitling Dr. Kronfol to a new trial.
Dr. Kronfol argues that since Johnson failed to bring her
medical-malpractice claim within the two-year statute of
limitations, the trial court erred in denying his motion for
summary judgment. In his appellate brief, Dr. Kronfol asserts
that he was "Johnson's treating nephrologist and saw
[her] at least twice per week since 2007." Dr. Kronfol
also asserts that at the very latest, Johnson possessed
actual notice of her claim against Dr. Kronfol on May 6,
2013, the date that Johnson received her sepsis diagnosis.
Dr. Kronfol therefore maintains that the statute of
limitations on Johnson's claim against him expired on May
6, 2015, and that as a result, Johnson's May 8, 2015
notice of intent and subsequent amended complaint were not
timely filed and therefore are barred.
As a procedural matter, the record shows that on May 8, 2015,
Johnson sent Dr. Kronfol a notice of intent to sue. On July
8, 2015, Johnson amended her complaint to add Dr. Kronfol as
a defendant. "The medical negligence statute does
provide for a sixty-day tolling period once notice has been
given." Arceo v. Tolliver, 19 So.3d 67, 73
(¶24) (Miss. 2009) (citing Mississippi Code Annotated
section 15-1-36(15)). The supreme court has held that
"whenever a plaintiff files the statutorily required
sixty days of notice, the time to file an action is
effectively extended by sixty days." Scaggs v.
GPCH-GP Inc., 931 So.2d 1274, 1277 (¶11) (Miss.
2006). We therefore recognize that Johnson's May 8, 2015
notice of intent to sue extended the time for her to file her
complaint against Dr. Kronfol by sixty days.
Johnson denies that she knew she had a claim against Dr.
Kronfol on May 6, 2013. Johnson claims that she assumed Dr.
Lucas and Dr. Russell were responsible for the temporary
catheter, as opposed to Dr. Kronfol. Johnson also maintains
that she was diligent in seeking her medical records: she was
discharged from the hospital on May 15, 2013 and requested
her medical records on June 25, 2013. Johnson argues that
after Dr. Russell placed her temporary catheter, she had no
contact with Dr. Kronfol regarding the access point to her
temporary catheter. Johnson alleges that when she saw Dr.
Kronfol at the Fresenius Clinic, he never even looked at the
"This Court has held that appeals from the denial of a
motion for summary judgment are interlocutory in nature and
are rendered moot by a trial on the merits."
Franklin Collection Serv. Inc., v. Collins, 206
So.3d 1282, 1284 (¶8) (Miss. Ct. App. 2016) (quoting
Britton v. Am. Legion Post 058, 19 So.3d 83, 85
(¶7) (Miss. Ct. App. 2008)); see also Gibson v.
Wright, 870 So.2d 1250, 1254 (¶8) (Miss. Ct. App.
2004). However, in Franklin Collection Services, 206
So.3d at 1285 (¶14) (internal quotation marks omitted),
we recognized that "some federal courts of appeals have
recognized an exception to this rule and will review purely
legal issues decided on summary judgment even after a jury
trial and verdict."
Turning to the case before us, Mississippi Code Section
15-1-36(1) provides that an action for medical malpractice
must be brought "within two (2) years from the date the
alleged act, omission or neglect shall or with reasonable
diligence might have been first known or discovered."
Miss. Code Ann. § 15-1-36(1). The supreme court has
clarified that "[a]pplication of the discovery rule [in
a medical-malpractice action] is a fact-intensive
process." Huss v. Gayden, 991 So.2d 162, 166
(¶6) (Miss. 2008). "Mississippi substantive
jurisprudence requires questions of disputed fact to be
decided by juries, such as when [a claimant] 'with
reasonable diligence might have first known or
discovered' the 'alleged act, omission, or
neglect'" referenced in section 15-1-36. Huss v.
Gayden, 991 So.2d 162, 168 (¶10) (Miss. 2008).
In denying Dr. Kronfol's motion for summary judgment, the
trial court acknowledged that "application of the
discovery rule is a fact-intensive process." The trial
court determined that "reasonable minds can differ as to
when . . . Johnson knew of Dr. Kronfol's alleged
negligence" and held that "an issue of material
fact" existed. We therefore find that the issue before
the trial court on summary judgment was not "purely
legal." See Franklin Collection Servs., 2016
So.3d at 1286 (¶14). The record reflects that after the
trial judge determined a factual question existed, the
factual issue was not submitted to the jury to determine as
to when Johnson knew or should have known of the alleged
negligence of Dr Kronfol.
After our review, we find that the trial court's
"pretrial ruling on [Dr. Kronfol's] motion for
summary judgment was rendered moot by the trial on the
merits. It is not reviewable on appeal and therefore is not a
basis for reversal." Id. at 1285 (¶10).
At trial, Dr. Orlando Gutierrez testified for Johnson as an
expert in the field of nephrology. Dr. Kronfol argues that
the trial court erred in failing to grant his
Daubert challenge to Dr. Gutierrez's reliance
upon "guidelines," which were not the standard of
care, were outdated, and were not scientifically valid. At
trial, Dr. Kronfol moved under Mississippi Rule of Evidence
702 and Daubert to strike Dr. Gutierrez's
opinions relying on the National Kidney Foundation's 2006
Updates to Clinical Practice Guidelines and Recommendations
("2006 guidelines"). The trial court ultimately
denied Dr. Kronfol's motion to strike, but the trial
court stated that "if you have an expert or some article
that states that these [guidelines] are no longer applicable
or that these are no longer . . . what's used, I guess at
that point it will be a question for the jury to determine
whether or not what weight they want to give to it." On
appeal, Dr. Kronfol argues that Dr. Gutierrez never
articulated any national standard of care for nephrologists;
rather, he just articulated the recommendation "best
practices" contained in 2006 guidelines.
We review the trial court's admission or exclusion of
expert testimony for an abuse of discretion. Patterson v.
Tibbs, 60 So.3d 742, 748 (¶19) (Miss. 2011).
"This Court should find error in the trial court's
decision to exclude expert testimony only if the decision was
arbitrary or clearly erroneous." Id.
The supreme court has stated that "[i]n addressing
Daubert issues, our analysis must be guided by Rule
702, which addresses the admissibility of expert
testimony." Id. at (¶20).
702 provides as follows:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
witnesses must be qualified to render an opinion, and expert
witnesses "should be given wide latitude when offering
opinions within their expertise." Patterson,
630 So.3d at 748 (¶21). "[E]xpert testimony must be
relevant and reliable." Delta Reg'l Med. Ctr.
v. Taylor, 112 So.3d 11, 25 (¶41) (Miss.
Ct. App. 2012).
In Daubert, the United States Supreme Court provided
factors for the trial court to consider when determining the
relevance and reliability of expert testimony:
(1) whether the expert's theory can be or has been
tested; (2) whether the theory has been subjected to peer
review and publication; (3) the known or potential rate of
error of a technique or theory when applied; and (4) the
general acceptance that the theory has garnered in the
relevant expert community.
Daubert, 509 U.S. at 593-94. The Mississippi Supreme
Court explained that "[t]hese factors are nonexclusive,
and their application depends on the nature of the issue, the
expert's expertise, and the subject of the testimony
offered by the expert." Patterson, 630 So.3d at
749 (¶21) (citing Miss. Transp. Comm'n v.
McLemore, 863 So.2d 31, 37 (Miss. 2003)). Furthermore,
"[w]hen determining whether expert testimony is
admissible, our trial judges should act as gatekeepers and
must determine whether the proposed testimony meets the
requirements of Rule 702 and Daubert's relevance
and reliability prongs." Id. at (¶22).
Regarding the provision in Rule 702 that "[a] witness
who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if . . . the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue[, ]" Daubert provides as follows:
The subject of an expert's testimony must be
"scientific knowledge." The adjective
"scientific" implies a grounding in the methods and
procedures of science. Similarly, the word
"knowledge" connotes more than subjective belief or
unsupported speculation. The term "applies to any body
of known facts or to any body of ideas inferred from such
facts or accepted as truths on good grounds."
Daubert, 509 U.S. at 589-90. Our supreme court has
also provided that "[e]xpert testimony admitted at trial
must be based on scientific methods and procedures, not on
unsupported speculation or subjective belief." McKee
v. Bowers Window & Door Co., 64 So.3d 926, 932
(¶18) (Miss. 2011).
In the present case, Johnson designated Dr. Gutierrez, a
nephrologist, as her trial expert. In Johnson's
Designation of Experts for Dr. Gutierrez, she asserted the
[Dr. Gutierrez] is of the opinion that there was a breach of
care in connection with the care and treatment provided to
Barbara Johnson relative to the temporary catheter.
Specifically, there was a breach of care [by Dr. Kronfol]
when the temporary catheter was allowed to remain in place
for approximately twenty-five (25) days. Current vascular
access guidelines provide that internal jugular catheters
should be used for no more than seven (7) days. See the
article entitled Clinical Practice Guidelines for Vascular
Access, 2006, which has been previously produced.
Dr. Gutierrez will further opine that the sepsis suffered by
Barbara Johnson, her hospitalization at Delta Regional
Medical Center from May 6, 2013, through May 15, 2013, and
any other subsequent treatment for the sepsis were
proximately caused by Barbara Johnson's retention of the
internal jugular catheter for approximately twenty-five (25)
days, well beyond current vascular access
(Emphasis added). Dr. Gutierrez opined at trial that Dr.
Kronfol breached the standard of care in his treatment of
Johnson. Specifically, Dr. Gutierrez stated that Dr. Kronfol
breached the standard of care by allowing Johnson's
temporary catheter to be in for more than one week, which led
to Johnson's infection from Methicillin-resistant
Staphylococcus aureus (MRSA) and later sepsis.
Kronfol maintains that it was inappropriate for Dr. Gutierrez
to use the 2006 guidelines to set the standard of care.
At trial, Johnson's attorney asserted that the 2006
guidelines relied on by Dr. Gutierrez set forth
"guidance regarding what nephrologists are supposed to
do in terms of managing temporary catheters." Dr.
Gutierrez informed the trial court that the guidelines were
produced by a work group called The Kidney Disease Outcomes
Quality Initiative (KDOQI), which was put together by the
National Kidney Foundation. Dr. Gutierrez stated that the
specific task of the work group "is to review the
literature and determine, based upon a review of the
literature, what are the best practices for different aspects
of nephrology care." Dr. Gutierrez further explained
during voir dire that "it's really the sort of
guidelines that any nephrologist refers to in terms of
understanding what is the standard of care, what is the best
practice of care." Dr. Gutierrez stated that the
guidelines are generally updated every five to ten years.
Dr. Gutierrez testified that the 2006 guidelines establish
that "[t]he rate of infection for internal jugular
catheters suggests they should be used for no more than one
week." Dr. Gutierrez explained that he relied on the
2006 guidelines in forming his opinion, and he also stated
that "this is part of the training that any minimally
competent nephrologist gets in terms of how long . . . a
temporary catheter should stay in for a patient on dialysis.
So I'm also relying on just basic experience and
training." Dr. Gutierrez further testified that the
primary nephrologist generally bears the responsibility for
managing catheters in patients like Johnson, who are
suffering from end-stage renal disease.
In Delta Reg'l Med. Ctr. v. Taylor, 112 So.3d
11, 18 (¶14) (Miss. Ct. App. 2012), Dr. Wiggins, an
expert witness in the field of emergency medicine, agreed
that "the American Stroke Association's (ASA)
Guidelines for the Early Management of Patients with Ischemic
Stroke: A Scientific Statement from the Stroke Council of the
American Stroke Association," constituted "an
authority for establishing the standard of care in stroke
patients." Upon review, this Court found no abuse of
discretion in the trial court's admission of Dr.
Wiggins's expert testimony, "since [he] grounded
[his] expert opinions and testimony upon [the
defendant's] medical records, the methods and scientific
principles taught in residency programs, and methods and
principles instructed upon by medical texts . . . ."
Id. at 28 (¶51). This Court also held that
"[Dr. Wiggins's] expert opinion [was] supported by
and consistent with medical literature, including . . . an
American Stroke Association article setting forth the
standards of care for stroke patients." Id.
Guidelines alone do not establish the standard of care.
However, in the present case, Dr. Gutierrez testified that he
did not base his expert opinion solely on the 2006
guidelines-he also relied on his training and experience as a
nephrologist. We therefore find the trial court did not abuse
its discretion in allowing Dr. Gutierrez to testify as an
expert in the field of nephrology.
Dr. Kronfol argues that the trial court also erred by
allowing Dr. Gutierrez to testify about undisclosed opinions.
Specifically, Dr. Kronfol takes issue with Dr.
Gutierrez's testimony during redirect examination that a
permanent catheter could be placed in the same opening where
Johnson's temporary catheter had been placed and that the
procedure was a "simple procedure" without risks.
Dr. Kronfol objected to the testimony, arguing that Dr.
Gutierrez's opinion as to this issue was not brought up
in cross-examination or contained in Johnson's
designation of experts. The trial court overruled Dr.
Kronfol's objection. Dr. Kronfol now claims that this
testimony was "egregiously prejudicial" and that
such testimony countered the testimony by Dr. Lucas that
there are multiple and serious risks associated with
installing a temporary catheter and installing a permanent
catheter in a patient like Johnson.
Mississippi Rule of Civil Procedure 26 provides as follows:
[U]pon request from the opposing party, a party must provide
the name of each expert witness it plans to call at trial
along with the subject matter on which the expert is expected
to testify, the substance of the facts and opinions to which
the expert is expected to testify, and a summary of the
grounds for each opinion.
Bailey Lumber & Supply Co. v. Robinson, 98 So.3d
986, 997 (¶30) (Miss. 2012) (internal quotation marks
omitted) (quoting Miss. R. Civ. P. 26(b)(4)(A)(i)). The
supreme court "has emphasized that it is imperative for
parties to disclose more than just the general subject matter
on which an expert will testify." Id. The
disclosure must be sufficient to put the opposing party
"on notice of the proffered testimony and [any] new
theory at trial." Robinson v. Corr, 188 So.3d
560, 570 (¶30) (Miss. 2016).
However, Johnson argues that Dr. Kronfol opened the door to
questions regarding the risks involved with temporary and
permanent catheters by asking Dr. Gutierrez during
cross-examination whether he heard Dr. Lucas's testimony
that "the risks of placing the central line, which is a
permanent catheter-of rupturing the lungs, puncturing the
heart or the veins or the arteries-was more risky than the
patient perhaps having an infection, which was the least risk
. . . ." We recognize that "[t]he scope of redirect
examination, while largely within the discretion of the trial
court, is limited to matters brought out during
cross-examination." McDonald v. Lemon-Mohler Ins.
Agency LLC, 183 So.3d 118, 133 (¶52) (Miss. Ct.
App. 2015). Upon review, this Court "will not disturb a
trial court's ruling on matters pertaining to redirect
examination unless there has been a clear abuse of
During redirect examination, Johnson asked Dr. Gutierrez:
"What would be the procedure or would it be possible to
convert that temporary catheter to a tunneled [permanent]
catheter?" Dr. Kronfol objected, arguing
"[T]hat's not in his designation to discuss."
During a bench conference on the matter, the trial court
stated that during cross-examination, Dr. Kronfol "did
talk about the dangers of putting in a permanent catheter, a
tunneled catheter." The trial court ultimately overruled
Dr. Kronfol's objection, and the following exchange
occurred during redirect:
[Counsel]: You were asked about -- going back where we were,
you were asked about dangers involved in placing
a central line. Do you recall that?
[Dr. Gutierrez]: I do.
[Counsel]: Okay. Are those dangers always present when
you're changing a temporary catheter to a tunneled
[Dr. Gutierrez]: No.
[Counsel]: Explain to the jury why they are not.
[Dr. Gutierrez]: When you have a temporary catheter -- well,
let me back up. When you're placing a tunneled catheter
for the first time or just from anew, there is certainly
risks involved with the needle going into the vein and that
catheter having problems getting into the vein and causing
damage. When you already have a temporary catheter in the
vein, you can exchange the temporary catheter for a new one.
[Dr. Gutierrez]: When you have a temporary catheter, you can
exchange that catheter by putting a wire through it and put
in a tunneled [(permanent)] catheter in its place, which has
many fewer risks involved with it than if you had to place a
tunneled catheter fresh or just new.
[Counsel]: And that would have been the procedure since Ms.
Johnson already had a temporary catheter. Is that correct?
[Dr. Gutierrez]: That's correct. It's a simple
After our review, we find no abuse of discretion by the trial
court in allowing Dr. Gutierrez to testify as to his opinion
that through a simple procedure, a permanent catheter could
be placed in the same opening where Johnson's temporary
catheter had been placed. Dr. Kronfol opened the door to this
line of questioning during cross-examination, and the trial
court was within its discretion to allow Dr. Gutierrez to
testify on the matter during redirect examination.
Expert Opinion from a Treating Physician
Dr. Kronfol argues that the trial court erred by allowing
Johnson's treating physician, Dr. Xander Buenafe, to
offer an expert opinion that the temporary catheter placed in
Johnson presented a "very high risk" of infection
and that the catheter was the source of the MRSA infection.
Dr. Kronfol asserts that the testimony by Dr. Buenafe about
the risk of infection from a temporary catheter went well
beyond his treatment of the patient and should have been
excluded by the trial court. Dr. Kronfol maintains that
Johnson's expert designation of Dr. Buenafe simply states
"this treating physician is expected to testify in a
manner consistent with medical records," yet
Johnson's medical records make no mention of the
temporary catheter placing Johnson at a high risk for
infection. Dr. Kronfol further maintains that the designation
does not disclose any opinion by Dr. Buenafe that the
catheter caused Johnson's infection, or that Dr. Buanefe
knew of the multiple shots, procedures, or frequency of
dialysis that Dr. Guiterrez admitted could have precipitated
In Johnson's designation of experts, she lists Dr.
Buenafe and provides the following description:
The physician listed below is the treating physician of
[Johnson], and, as such, is not an expert who has been
retained or specifically employed to provide testimony in
this matter. This treating physician is expected to
testify in a manner consistent with his medical records and
reports, a copy of which has been previously provided to [Dr.
The supreme court has held that "[a] physician can
testify without being accepted as an expert regarding: (1)
'the facts and circumstances surrounding the care and
treatment of the patient'; (2) 'what his records
about the patient reveal'; and (3) 'what conditions
the patient was suffering from if the opinion was acquired
during the care and treatment of the patient.'"
Chaupette v. State, 136 So.3d 1041, 1046 (¶8)
(Miss. 2014) (quoting Griffin v. McKenney, 877 So.2d
425, 439-40 (¶50) (Miss. Ct. App. 2003)). However, the
supreme court cautioned that "a physician cannot testify
about the significance of a patient's condition or
industry standards without first being accepted as an
expert." Id. (internal citations omitted);
see also M.R.E. 701 and 702. We review "[a]
trial court's admission of testimony . . . for an abuse
of discretion." Id. at1045 (¶7).
In response to Dr. Kronfol's argument, Johnson maintains
that Dr. Buenafe's testimony regarding the temporary
catheter and the high risk of infection was consistent with
Johnson's medical records from her admission and
treatment at Delta Regional Medical Center between May 6-15,
2013. On Johnson's discharge summary prepared by Dr.
Buenafe and admitted into evidence, the discharge diagnoses
states, among other things, "Bacteremia, MRSA,
The disputed testimony occurred during Dr. Buenafe's
Q: Okay. And you just testified that you took a look at the