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Cleveland Medical Clinic PLLC v. Easley

Court of Appeals of Mississippi

December 17, 2019

CLEVELAND MEDICAL CLINIC PLLC APPELLANT
v.
JESSIE EASLEY, ADMINISTRATOR OF THE ESTATE OF GENE AUTRY EASLEY, DECEASED APPELLEE

          DATE OF JUDGMENT: 09/25/2017

          BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. ALBERT B. SMITH III TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: ROBERT J. DAMBRINO III ASHLEY NOBILE LANE

          ATTORNEY FOR APPELLEE: ELLIS TURNAGE

          BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

          BARNES, C.J.

         ¶1. A Bolivar County Circuit Court jury found Cleveland Medical Clinic PLLC (CMC) liable for the wrongful death of Gene Easley (Gene) and awarded his estate (Easley) $744, 042.25 in damages. After the circuit court denied CMC's motion for a judgment notwithstanding the verdict (JNOV), CMC appealed raising issues about the admissibility of testimony by Easley's expert witness. Due to Easley's failure to file an appellee's brief and the voluminous and complicated record on appeal, we consider the merits of CMC's claims to determine if an apparent case of error exists. Finding the expert testimony was insufficient to support the verdict, we reverse and render the judgment.

         FACTUAL SUMMARY

         ¶2. On December 30, 2007, Gene-a fifty-six year old male-was admitted to Bolivar Medical Center (BMC) by Dr. James Warrington, his physician of ten years who was employed by CMC. Gene's complaints were shortness of breath, malaise, weakness, and black, tarry bowel movements. As noted in CMC's brief, Gene "had a complicated medical history." Among his prior medical issues, he had (1) a stroke; (2) diverticulitis; (3) bilateral below-knee amputation due to gangrene; (4) congestive heart failure; and (5) high blood pressure. Gene also had end-stage renal failure and was a dialysis patient of Dr. Michael Portner, a nephrologist with Renal Care Group.

         ¶3. Upon admission, Dr. Warrington ordered the typing and cross-matching of blood products and periodically ordered blood transfusions. Dr. Portner was consulted and diagnosed Gene with anemia related to his underlying renal condition. Dr. Bennie Wright, a surgeon, performed an esophagogastroduodenoscopy (EGD) to determine the source of Gene's bleeding. Dr. Wright identified the presence of gastric ulcers but found no active bleeding. All three doctors continued to monitor Gene's progress, with Dr. Warrington responding to any changes and ordering more blood transfusions and lab tests.

         ¶4. On the morning of January 9, 2008, Dr. Warrington conducted rounds at BMC and noted in Gene's patient chart that he was "doing well" and would be discharged after receiving dialysis that morning. Gene began hemodialysis at 8:20 a.m. under Dr. Portner's care. He was given heparin, a blood-thinner, and his blood pressure was 141/69. However, at 10:15 a.m., Gene had a large bloody stool; so Dr. Portner cancelled Gene's scheduled discharge from the hospital, and he was taken back to his hospital room at 11:20 a.m. In the meantime, Gene had three more bloody stools.

         ¶5. At 12:09 p.m., Dr Warrington was en route from Cleveland to Clarksdale to see patients when he was informed by BMC of Gene's bloody stools. He gave a telephone order for the BMC nursing staff to type and cross-match blood and to call Dr. Wright, who ordered a transfusion of one unit of blood and for staff to call him if Gene's hematocrit got below 26.[1] The blood transfusion was started at 2:15 p.m. Shortly thereafter, BMC contacted Dr. Warrington to tell him that Gene was complaining of pain; so the doctor ordered a low dose of Demerol at 3:00 p.m. At 3:15 p.m., Gene's blood pressure was 79/49. Thirty minutes later, his blood pressure dropped to 49/29; so BMC called Dr. Warrington to provide a status update. He told BMC to contact his partner, Dr. Kimberly Webb, who was at BMC conducting rounds in his absence.

         ¶6. When Dr. Webb arrived a few moments later, Gene was going into respiratory arrest (a "code blue"). He was resuscitated and transferred to BMC's intensive care unit (ICU). Dr. Webb issued an order to type and cross-match four units of blood and transfuse at 4:20 p.m, and she examined Gene at 6:00 p.m. However, a short while later, Gene went into respiratory arrest again, and he died at 8:08 p.m. The cause of death was respiratory failure secondary to an alleged gastrointestinal (GI) bleed and end-stage renal disease.

         PROCEDURAL HISTORY

         ¶7. On March 10, 2010, Jessie Easley, the administrator of Gene's estate, filed a complaint with the circuit court against PHC-Cleveland d/b/a BMC, CMC, Renal Care Group, and Dr. Portner. The complaint alleged a wrongful-death claim caused by healthcare-provider negligence and sought "monetary damages for defendants' joint and combined negligent acts."[2]

         ¶8. CMC filed a motion for summary judgment on March 2, 2012, asserting that Easley's expert witness, Dr. Carl Blond, failed to provide expert medical testimony establishing that CMC "was negligent in the examination, care and treatment of [Gene], and that negligen[ce] was the proximate cause or proximate contributing cause of his death." Finding Dr. Blond's affidavit "create[d] a genuine issue of material fact as to the causal connection between the treatment rendered and Easley's death," the circuit court denied the motion on December 19, 2013. On August 21, 2017, CMC filed a motion to exclude Dr. Blond as an expert witness, which the court also denied.

         ¶9. A jury trial was held September 11-14, 2017. The circuit court admitted Dr. Blond as an expert in internal medicine, in nephrology, and as a hospitalist. Dr. Blond opined that when Dr. Warrington first became aware of Gene's bloody stools at 12:09 p.m., he or Dr. Webb should have personally assessed the patient, transferred Gene to the ICU, and consulted an endoscopic doctor to find the active GI bleed. On cross-examination, Dr. Blond conceded that when Gene was admitted on December 30, Dr. Warrington appropriately referred him to the surgeon, Dr. Wright, and that Gene's blood counts on the morning of his death had improved since his admission days earlier.

         ¶10. After the plaintiff rested, CMC moved for a directed verdict and renewed its motion to exclude Dr. Blond's testimony. The court denied the motions. Dr. Warrington testified that he visited Gene during his morning rounds, and his impression of Gene's condition was "[t]hat everything was good." He was not notified of Gene's deteriorating condition (i.e., his blood pressure of 49/29) until 3:47 p.m., at which time he told BMC staff to contact Dr. Webb, who was at the hospital. When asked by counsel if there was "anything more that [he or the other physicians] could have done to keep [Gene] alive," he replied, "No, sir." On cross-examination, Dr. Warrington explained that he initially told BMC to call Dr. Wright to look at the patient, rather than Dr. Webb, because Dr. Wright "was in the hospital" and was "the most qualified person to take care of [Gene's] problem at that moment."

         ¶11. Dr. Robert Boyd, CMC's expert witness in the field of surgery and managed care in a hospital setting, opined that Dr. Warrington's actions after being informed of the bloody stool-consulting Dr. Wright and Dr. Webb-were the appropriate standards of care. Dr. Diedre Phillips, an expert witness in family medicine and in the coordination of medical care by a family medicine physician in a hospital, further testified that the standard of care did not require Dr. Warrington to transfer Gene to the ICU when notified of the bloody stools, noting that Gene's blood pressure was stable at that time and that there was no "indication he was actively bleeding."

         ¶12. The jury rendered a verdict against CMC and awarded damages of $744, 042.25, and the circuit court entered a final judgment on September 25, 2017. CMC filed a motion for a JNOV or a new trial, which the court denied on December 8, 2017. Because CMC did not receive notice of the court's order until February 2018, it filed a motion for relief from the judgment under Mississippi Rule of Civil Procedure 60(b). The court granted the CMC's motion for the relief, vacated its December 8, 2017 order, and issued a new order on February 12, 2018, denying the motion for a JNOV or a new trial and granting a remittitur to $500, 000 in accordance with Mississippi Code Annotated section 11-1-60 (Rev. 2014).[3]

         ¶13. CMC appealed the judgment and, on January 31, 2019, filed its appellant's brief. On April 9, 2019, Easley's attorney, Ellis Turnage, filed a motion requesting additional time to file the appellee's brief, which had been due on March 2, 2019. Turnage claimed his staff had been instructed to file the motion for additional time on March 2, but unbeknownst to him, they failed to do so. CMC opposed the motion, seeking relief under Mississippi Rule of Appellate Procedure 31(d), "including (but not limited to) the denial of oral argument to Appellee." The Mississippi Supreme Court denied the motion for additional time, finding counsel's reasons for failing to file the appellee's brief to be "inadequate." CMC's request for relief under Rule 31(d) was dismissed as "premature." Easley has since filed a motion requesting permission to participate in oral argument pursuant to Rule 31(d). There was no proper request for oral argument by either party. Under Mississippi Rule of Appellate Procedure 34(b), an appellee shall mark "oral argument requested" on his principal brief, and the appellant "shall make this notation on his reply brief or, if no reply brief is filed, by letter within the time allowed for filing of the reply brief." As the supreme court denied Easley's request to file an untimely brief, and no reply brief or letter requesting oral argument was filed by CMC, we did not grant oral argument in this case. Easley's motion is hereby denied as moot.

         ¶14. CMC appeals the circuit court's denial of its pre- and post-trial motions-the motion to exclude Dr. Blond's testimony, the motion for summary judgment, and the motion for a JNOV-on the basis that Dr. Blond's testimony was speculative and insufficient to support the verdict. Before considering the merits of the appeal, we must address the appellee's failure to file a brief. As the reviewing court, we have two options. The first option is to "take the appellee's failure to file a brief as a confession of error and reverse." Griffith v. Wall, 224 So.3d 1293, 1295 (¶8) (Miss. Ct. App. 2017) (quoting McGrew v McGrew, 184 So.3d 302, 306 (¶10) (Miss. Ct. App. 2015)). "This should be done when the record is complicated or voluminous, and the appellant has presented an apparent case of error." Id. at 1296 (¶8). However, in "situations where there is a sound and unmistakable basis upon which the judgment may be safely affirmed," the second option "is to disregard the appellee's failure to file a brief and affirm the judgment." Id. Considering the parties' numerous court filings, medical records, and four days of trial testimony, it is evident to this Court that the record is complicated and voluminous, comprising twelve volumes. Accordingly, we will review CMC's claims to determine if there is "an apparent case of error."

         DISCUSSION

         ¶15. In both his original and supplemental affidavits, Dr. Blond stated that Gene "would have survived if he had received blood and fluids on a STAT basis and had been promptly transferred to ICU" after the occurrence of the bloody stools. Arguing that his testimony was "unreliable and based upon speculation and conjecture," CMC filed a motion to exclude Dr. Blond as an expert witness, along with its motion for summary judgment. The circuit court denied the motions and accepted Dr. Blond as an expert witness at trial.

         ¶16. On direct examination, Dr. Blond testified that CMC employees, Drs. Warrington and Webb, violated the national standard of care by failing "to transfer [Gene] to an ICU setting for careful monitoring" and failing "to directly speak with an endoscopist to explain that this patient has had a major change in status and is passing bloody stools." He said that when treating an acute, active GI bleed:

[A] patient, has to be, number one, put in an ICU to be monitored closely; number two; aggressive care, generally. When someone has GI bleeding that's significant, your goal is, first, to resuscitate them with blood and fluids, and then, if you believe, it's an upper GI hemorrhage, you proceed with emergent endoscopy to find out where they're bleeding from, and, hopefully, be able to correct the bleeding or stop the bleeding that's going on, and that's done by someone who does endoscopy. So the first step is close monitoring, and the second step is to proceed with an aggressive workup in an attempt to stop the bleeding.

(Emphasis added). Yet when asked on cross-examination what would have happened had Gene been transferred to the ICU at 12:09 p.m., Dr. Blond admitted that he was not certain.

Q. Now, if [Gene] had been in the ICU, isn't it true that the blood pressures that we've just gone over -- the blood pressure that we read right before we began to see any blood -- would have been the same blood pressure that -- I mean, because it's in the ICU doesn't change what the blood pressure would have been. It would have been the same.
A. I think that's speculation.
Q. Do you? And I think so too. In fact, you can't tell this [c]ourt and this jury what would have happened if he had been ...

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