On Thursday the Mississippi Supreme Court issued an interesting 7–2 opinion in Burnwatt v. Ear, Nose and Throat Consultants of North Mississippi. Here is the Court’s opinion, which Justice Chandler wrote. Justice Kitchens wrote a dissent that Justice Graves joined.

Facts:

The facts of the case were tragic. Alex Burnwatt, aged 9, had a tonsillectomy in 2001 performed by Dr. John Laurenzo. In the days following the surgery, he complained of pain and could not eat or drink without throwing up. After a few days, his parents took him to Baptist Memorial Hospital–North Mississippi (“BMH-NM”). At BMH-NM he vomited blood and collapsed on a bed. A nurse called a code, but resuscitation efforts failed and he died.

Lawsuit:

Alex’s parents sued Dr. Laurenzo, his practice group and the BMH-NM. BMH-NM moved for summary judgment and plaintiffs confessed the motion because neither plaintiff, nor Dr. Laurenzo, designated expert opinions that were critical of BMH-NM.

After the dismissal, Dr. Laurenzo designated an expert who opined that he did not breach the standard of care and that Alex’s death was caused by resuscitation efforts. Plaintiffs moved to exclude the testimony as an improper attempt to blame BMH-NM.

The trial court allowed the expert to testify at trial and there was a hung jury. The Supreme Court granted an interlocutory appeal.

Cynthia Mitchell, John Cocke and Charles Merkel, III with Merkel & Cocke represented the plaintiffs. Shelby Milam, Duke Goza and Dion Shanley represented the defendants.

Majority Opinion:

The Court ruled that the defense expert should be allowed to testify to explain the defendants’ theory of the case: “Alex died as a result of pneumothorax (air around the lung that causes the lungs to collapse) during resuscitation efforts.” In contrast, plaintiffs’ theory “was that Alex died as a result of Dr. Laurenzo’s negligence in cutting too deeply into the tonsillar bed, resulting in Alex’s exsanguination (blood loss) at the hospital.”

Dissenting Opinion:

Justice Kitchens argued that judicial estoppel applied and precluded the defendants from offering the expert opinion that Alex died from the resuscitation attempt. The dissent was critical of a jury instruction that the defense contended that Alex’s death occurred during resuscitation attempts.

The dissent reasoned that the expert’s testimony and the court’s instruction had the effect of laying the responsibility for the death on BMH-NM. The dissent argued that defendants should not be allowed to do this because they limited their theory of the case when the agreed to not blame the hospital.

My Take:

I have changed my mind on this opinion several times in the last day. I am not sure if this was a proper theory of the case defense or improper “sneaky” finger-pointing. Here is what I mean. When a party in a lawsuit is blaming someone else, they should have to point the finger like this:

But defendants—particularly defendants in medical-malpractice–cases often point the finger discreetly, like this:

I call this sneaky finger-pointing. “I’m not blaming anyone….except for that dude over there.”

It most commonly arises when a defendant in a medical-malpractice case blames another doctor or nurse (who wasn’t sued or has been dismissed), but does not have supporting expert testimony against the non-party.

Plaintiffs can’t get away with this because of the clear law that a plaintiff has to have supporting expert testimony to get to the jury. But defendants can get away with this if the trial court lets them because the defense does not have the burden of proof and the law is not developed on this issue.

I believe that it is improper for a trial court to allow a defendant in a case that requires expert testimony to blame someone else without supporting expert testimony. But I have seen it happen.

I suspect that the plaintiffs’ lawyers in Burnwatt have seen it happen too. But what happened in Burnwatt may have been a little different. Or it may have been a little sneakier. I can’t tell.

As I write this, my opinion is that the defense expert should have been limited to testifying that the defendants complied with the standard of care. I reach this conclusion because if—as defense expert says—sometimes resuscitation efforts fail, then that was foreseeable and the fact that Alex died during resuscitation is either not relevant or more prejudicial than probative. The sole issue is whether there was a breach that proximately caused the death.

“Theory of the case” does not trump the rules of evidence. If it did, you would often see a party’s theory of the case that the opposing party is a scum-bag who deserves to lose. Alas, the rules of evidence prohibit this type of defense because it is premised on character evidence.