Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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On Tuesday the Mississippi Court of Appeals affirmed a $4.6 million Hinds County jury verdict in Miss. Baptist Health Systems v. Kelly. Here is the Court's opinion. This was the appeal of a 2009 trial that I wrote about in this 2009 post.

This was a pre-tort reform cap case. Ellen Kelly died as a result of exposure to latex during a surgery procedure at Baptist Hospital in Jackson. A form from an earlier surgery procedure indicated that Ellen was allergic to latex. The jury rendered a verdict against Baptist, but exonerated the doctor defendants.

The awarded damages were:

• $29,604.52– funeral and medical expenses
• $992,109– loss of household services
• $1,415,880– lost wages
• $2,253,065.48– pain and suffering

A big part of Baptist's appeal seemed to center on the fact that the jury exonerated the doctor-defendants, who also had a duty to take a proper history from Ellen. The Court rejected the argument finding that the doctors and nurses had a separate duty.

Baptist also complained because the trial court did not allow the jury to apportion fault to an anesthesiologist. I can't tell for sure, but Baptist may have been trying a version of the sneaky finger-pointing defense that I talked about in this post. The Court rejected this argument because there was no testimony suggesting that the anesthesiologist deviated from the standard of care.

Judge Ishee wrote the majority opinion. Judge Maxwell wrote a specially concurring opinion. Judge Carlton dissented based on her assessment that the plaintiff did not prove medical causation.

Joey Diaz, Christopher Williams and Dennis Sweet represented the plaintiff. Mike Wallace and a bunch of other lawyers from Wise Carter represented Baptist. Judge Winston Kidd was the trial judge.

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Here is some more information on yesterday's $2.2 million verdict in Hinds County that was the subject of this post.

The jury deliberated for 45 minutes. Judge Winston Kidd presided in the case. Mark Caraway with Wise Carter in Jackson represented CMMC. Lance Stevens of Jackson represented the plaintiff.

CMMC's main defense was that there was no contract. CMMC lost this issue on summary judgment, but plans to appeal the decision.

CMMC also believes that it was denied a fair trial because the court did not grant a continuance. The basis for the continuance request was that CMMC's main fact witness was recently diagnosed with cancer and is currently experiencing the ravages of chemotherapy. The witness was hospitalized the morning that the trial started due to injuries sustained in a fall.

My Take:

Sounds like this was a swearing match case. A doctor is almost always going to win a swearing match. Even when he is the plaintiff. I believe that this is because Americans are indoctrinated from birth to trust their doctor. This carries over into the courtroom. 

Here, the doctor and hospital disputed whether a contract existed. The doctor is going to win this type of swearing match most of the time regardless of whether he is the plaintiff or defendant in the case and whether there are holes in his story. 

I reject cases all the time because they are going to come down to a swearing match between the doctor and patient over what was said and happened. I feel like I have better odds in a casino that on winning a swearing match against a doctor.

CMMC's argument on appeal will likely be that the existence of a contract was a question of law and the trial court got the ruling on this issue wrong. That would take the doctor swearing match out of play. 

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The September edition of the Mississippi Jury Verdict Reporter hit news stands this week and once again does an excellent job of reporting on Mississippi verdicts.

The verdicts reported in the issue include:

• the October 2010 $103 million legal malpractice verdict against Baker & McKenzie discussed in these posts;
• the $578,000 employment discrimination case discussed in this post;
• an August defense verdict in a federal court case involving a train-truck collision; (winning lawyer: George Ritter of Wise Carter)
• a July Hinds County verdict of $500,000 in a FELA case; (losing lawyer: George Ritter of Wise Carter)
• a May $175,000 verdict in a Jones County electrical negligence case;
• a July defense verdict in a Jackson County medical malpractice case;
• an August defense verdict in a Northern District Federal Court race discrimination case;
• a June $180,000 Hancock County verdict for negligence related to a mobile home;
• a plaintiff verdict awarding $0 in damages in a Harrison County negligence case; and
• a $13,680 verdict in a Monroe County eminent domain case.

My Take:

Aside from the anomaly of the Baker McKenzie verdict, it was another mediocre verdict report for plaintiffs.

How can you have a plaintiff verdict with no damages? If there are no damages, shouldn't it be a defense verdict? I don't get that one.

What a Summer for George Ritter of Wise Carter in Jackson. Let that be a lesson for all trial lawyers. You win some. You lose some. 

Ritter has never been afraid to tee one up, which is a characteristic of all good trial lawyers.  

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On August 23, 2011 the Circuit Court of Leflore County rendered a $500,000 bench trial verdict against Greenwood Leflore Hospital in a medical malpractice case. Here is the trial court's judgment and findings of fact and conclusions of law in Long v. Greenwood Leflore Hospital and Francois Lesage, M.D.

Facts:

Monica Long, age 10, became sick on Friday September 21, 2007. Monica's mother Stephanie took her to the emergency room at Greenwood Leflore Hospital on Sunday Sept. 23. Monica was in pain and had a fever of 102.

At the hospital Dr. Lesage diagnosed Monica as having an ear infection and prescribed antibiotics.

Later that night, Monica seemed worse and vomited. Her mother called the hospital twice and was told to give Monica antibiotics and bring her back in the morning. At 9:30 a.m. the next morning, Monica collapsed and was taken back to the emergency room. She stopped breathing and was transferred to UMC.  Monica died on Sept. 25 from bacterial meningitis.

Noel Harris of Greenville and Michael Cory and Ken Miller of Jackson represented the plaintiff. Gaye Nell Currie and Rex Shannon with Wise Carter in Jackson represented the hospital.

The Court's Decision:

The case was tried as a bench trial before Judge Ashley Hines because the hospital is subject to the Tort Claims Act. The trial court found that the hospital breached the standard of care in giving medical advice over the phone and not telling Monica's mother to bring her back to the hospital on Sunday night. The court found that if the hospital had instructed Stephanie to bring Monica back to the hospital, she would have been properly diagnosed and treated and would have survived.

The court awarded the maximum damages of $500,000.

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The $3.3 million verdict in Rankin County last week is confirmed. It was an 18-wheeler case where a drunk truck driver ran a red light on highway 49 in Florence. The truck driver pleaded guilty to DUI homicide. The case was a wrongful death suit on behalf of the family of a nineteen-year-old passenger. It was a pre-tort reform case, so the $1 million cap on non-economic damages does not apply. The jury was eleven whites and one African-American. There were ten women on the jury and two police officers. The average age of the jury was approximately 34. The trial judge was Judge Samac Richardson.

John Toney represented the plaintiffs. The defense lawyers were Jack Price of Wise Carter, Ed Taylor of Daniel Coker and Walter Dukes from Gulfport.