The Mississippi Court of Appeals decided the much ballyhooed caps case on Tuesday. Here is the Court’s decision in Emergency Medicine Associates of Jackson v. Glover.

As predicted, the Court never got to the issue of whether Mississippi’s caps on non-economic damages are constitutional.

This was a Hinds County medical malpractice case where the jury awarded $1.5 million in economic damages and $2 million in non-economic damages.

On appeal, the Court ruled that the trial court should have granted Defendants’ motion for an ‘independent medical exam.’

Sidebar: Why are they called ‘independent’ medical exams? They aren’t independent. They are bought and paid for by defendants and conducted by the biggest defense whores they can find. I’m not saying they shouldn’t get them, but let’s be honest and call them something like ‘defense medical exam’ or ‘biased medical exam’ or even ‘non-independent medical exam’.

The Court next ruled that the trial court improperly allowed a treating physician to opine about whether the injuries were permanent and disabling when his last examination of the plaintiff was a month after the incident.

Based on the previous ruling, the Court concluded that the award of $1.5 million in economic damages was excessive. The Court said that the plaintiff only proved $112,499 in medicals. The plaintiff offered evidence of $707,000 of lost wages at trial based on the disallowed permanent injury opinion. My recollection of the oral argument was that the evidence supporting the $1.5 million verdict was thin.

Finally, the Court concluded that the trial court improperly excluded Defendant’s superseding cause jury instruction.

The trial court reduced the non-economic damaged verdict to $500,000 due to the cap in medical malpractice cases. The plaintiff challenged the constitutionality of the cap in a cross-appeal. The Court did not reach the cap issue because it ruled against the Plaintiff on the direct appeal.

Judge Griffis wrote the Court’s opinion. Judge Irving dissented and was joined by Chief Judge Lee.

My Take:

The Court arguably buried the lead when it struck plaintiff’s expert testimony that the injury was permanent and disabling. While this part of the decision received second billing, it creates the biggest problem for the plaintiff on remand.

Judge Irving’s dissent makes a decent argument that the ‘IME’ wasn’t warranted. The dissent did not focus on the fact that the standard of review for ordering the IME was abuse of discretion.

We have all these different appellate standards of review. But it sure looks like the parties often argue–and appeals courts often decide–based on a right/wrong analysis without much regard given to the standard of review. This is not necessarily true, but that is the impression that the opinions often leave.

  • Heddy

    Philip: One thing they do in Louisiana–to get an “expert,” both the plaintiffs and defendants must agree on the “independent” examiner. Perhaps we could try this in MS.

    • Gulf Stream

      There are definitely judges in MS that encourage the parties to agree to an IME rather than grant the defendant his or her selection.

  • Eric Price

    With that ruling on the Plaintiff’s expert, Defendant probably no longer wants/needs an IME.

  • “But it sure looks like the parties often argue–and appeals courts often decide–based on a right/wrong analysis without much regard given to the standard of review.”

    Yup.

  • Ian

    This is a terrible opinion. At least in Louisiana, they will not tamper with Plaintiff verdicts that often.

  • Franklin

    MRCP 35 nowhere says independent. Besides IME’s are meant to be physical exams “independent” of the plaintiffs chosen doctors –who are hardly unbiased. At least the jury gets competing comparable evidence so it can decide who is a “whore”.