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.

On Tuesday a unanimous Mississippi Court of Appeals affirmed a $390,000 Washington County bench trial verdict in Delta Regional Medical Center v. Taylor. Here is the Court’s opinion.

The plaintiff in the case alleged that the Delta Regional E.R. physician failed to diagnose a stroke. As a result of the failure to diagnose and treat, the plaintiff did not receive supportive care and had a worsening of symptoms.

Although the defendant denied liability, the case seemed to hinge on causation and whether plaintiff would have received any benefit from treatment had the proper diagnosis been made. The Court of Appeals found that there was sufficient expert medical testimony to support the trial court’s finding that the defendant’s breach in the standard of care harmed the plaintiff.

The Court found:

“In turning to examine whether the record contains substantial evidence supporting the circuit court’s judgment, opinion, and order, we find that James’s medical records, and the expert testimony of Dr. Wiggins and Dr. Dyro, along with other evidence in the record, provided such record support for the decision of the circuit judge. Moreover, the testimony of Dr. Wiggins and Dr. Dyro provided evidence establishing the applicable standard of care for supportive stroke care in this case for patients like James, displaying symptoms of a suspected CVA and having a differential, alternative diagnosis.”

Judge Virginia Carlton wrote the Court’s opinion. The opinion is 30 pages and provides a good overview of Daubert in medical malpractice actions.

Judge Betty Sanders was the trial judge.

Ed Williamson and Christopher Posey of Philadelphia represented the plaintiff.

Carl Hagwood and Mary Frances Stallings-England represented Delta Regional.

In a glorious victory for wiener dogs everywhere, on Tuesday a unanimous Mississippi Court of Appeals reversed and rendered a $130,000 Clay County jury verdict for the victim of a near-miss wiener dog attack. Here is the Court’s decision in Penny Pinchers v. Outlaw. I’m serious. That’s the name of the case.

Facts:

Sophie was a 4 month old wiener dog.

I obtained an exclusive photo of a representative 4-month old wiener dog puppy, pictured to the right. Might as well of named her Killer.

Sophie’s owner took her to work with her at Penny Pinchers. The rest is history. Outlaw—being afraid of dogs—ran for the back of the store upon entering and hearing Sophie bark. Outlaw could hear Sophie’s claws on the floor and, I presume, her jaws snapping.

When Outlaw saw it was little Sophie, she laughed and resumed shopping. Large quantities of catfish and sugar were on her list. But Outlaw was soon hysterical with pain in her bum hip. An ambulance was dispatched. The lawsuit followed.

Trial:

A Clay County jury apportioned 70% of fault to Penny Pinchers and 30% to Outlaw and awarded $130,000 in damages.

The Appeal:

The Court of Appeals reversed and rendered based on the finding that there was no dangerous condition.

Judge Kenny Griffis wrote the pack’s majority’s opinion. Wayne Williams of Tupelo represented the defendant. Rod Richmond and Chynee Bailey represented the Plaintiff.

My Take:

This will go down in history as a landmark verdict….for wiener dogs. There are some real troublemakers in the wiener dog breed. The Court’s opinion gives them a license to chase customers around stores throughout Mississippi with impunity. But in a state where most of the population is armed, this could still end badly for the wiener dogs.