SACKS v. NECAISE

LEE, P.J., for the Court.

¶ 1. Charles Freeman was diagnosed with lung cancer in early 1998. At the time of his diagnosis, Freeman also suffered from diabetes, chronic obstructive pulmonary disease, atherosclerotic vascular disease, and mild organic brain syndrome. Freeman began chemotherapy treatment by intravenous (IV) therapy on January 22, 1998, at The Medical Oncology Group, P.A. (MOG) in Gulfport, Mississippi under the supervision of Dr. Matthew Sacks.

¶ 2. Freeman's cancer was treated with Taxol, a highly toxic drug used in battling systemic cancer. His first treatment was relatively uneventful. On February 12, 1998, MOG's staff administered a second treatment. During this treatment, Freeman experienced pain, swelling, and discoloration to the arm that was being infused. Over the next several days, the skin on his arm began to peel off and the area became swollen to two or three times its normal size. The damage was characterized as a third degree chemical burn.

¶ 3. On August 19, 1998, Freeman filed a complaint in the Circuit Court of Hancock County alleging medical malpractice against Dr. Sacks and MOG. Freeman asserted in his complaint that MOG's staff and Dr. Sacks, through vicarious liability, were negligent in the administration of the chemotherapy agents. Dr. Sacks and MOG argued in response that Freeman's injuries were the result of an adverse drug reaction and not negligence on their part. Freeman died in January 1999 from causes unrelated to the arm injury, and his daughter, Nancy Necaise, was substituted as plaintiff. After a bench trial, the trial court found Dr. Sacks and MOG liable for injuries Freeman sustained in their care. The trial court awarded Necaise $217,334.36.

¶ 4. Dr. Sacks and MOG now appeal the decision of the trial court asserting the following issues: (1) the trial court erred when it ruled that Necaise met her burden of proof on all the elements of medical negligence, (2) the trial court erred when it denied Dr. Sacks's Daubert motion, (3) the trial court erred when it allowed Necaise's nursing expert to testify on issues of medical diagnosis and treatment outside the practice of nursing, (4) the trial court erred when it imputed vicarious liability to Dr. Sacks, (5) the trial court erred when it allowed Necaise to submit medical bills for treatment of pre-existing conditions unrelated to the claims in this matter, and (6) the judgment was based on clearly erroneous findings which are not supported by the record.

¶ 5. Finding no error, we affirm.

¶ 6. In reviewing the decision of a trial judge sitting without a jury, this Court may only reverse when the findings of the trial judge are manifestly wrong or clearly erroneous. Singley v. Smith, 844 So.2d 448, 451(119) (Miss. 2003). A circuit judge sitting without a jury is accorded the same deference as a chancellor, his or her findings will not be overturned if supported by substantial evidence. Id. Additionally, when sitting as the finder of fact, the trial judge has the sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So.2d 867, 870 (Miss. 1994).

I. DID THE TRIAL COURT ERR IN FINDING THAT NECAISE MET HER BURDEN OF PROOF ON THE ELEMENTS OF MEDICAL NEGLIGENCE?

¶ 7. Dr. Sacks and MOG argue that Necaise failed to show the requisite standard of care applicable to Dr. Sacks through the testimony of a qualified medical expert and, thus, failed to prove all the elements of medical negligence.

¶ 8. To prevail on a claim of medical negligence, the plaintiff bears the burden of proof and must show the following four elements of negligence by a preponderance of the evidence: (1) the defendant had a duty to act in accordance with a standard of reasonable care so as to prevent injury to a foreseeable plaintiff; (2) the defendant failed to conform to the appropriate standard of care; (3) this breach proximately caused his injury; and (4) that he suffered actual harm or injury as a result of the defendant's negligent conduct. Lander v. Singing River Hosp. Sys., 933 So.2d 1043, 1046(1110) (Miss.Ct.App. 2006).

¶ 9. Dr. Sacks argues that the standard of care for the care of a chemotherapy patient by a doctor should have been articulated through the testimony of a medical doctor rather than a nurse. However, the issue in this case was not negligence on the part of Dr. Sacks but rather the negligence of MOG's staff. Nurse Jean Byrd, under the supervision of Dr. Sacks, administered the chemotherapy to Freeman on February 12. Dr. Sacks had a non-delegable duty to his patient to assure the medication he ordered was properly administered. Partin v. N. Miss. Med. Ctr, Inc., 929 So.2d 924, 936 (¶ 46) (Miss.Ct.App. 2005). If a doctor chooses to allow a nurse to perform a non-delegable duty, the doctor must accept responsibility if that duty is breached. Id. The trial court found Dr. Sacks vicariously liable for nursing neglect and, thus, there was no need to establish the standard of care for a medical doctor.

¶ 10. As for the requisite standard of nursing care, all the experts agreed that the appropriate standard of nursing care requires a drug to be immediately discontinued upon discovery of swelling, pain, and/or a change in skin color.

¶ 11. Pamela Jenner, a registered nurse with experience in administering chemotherapy, testified for Necaise. Jenner testified that Nurse Byrd did not conform to the applicable standard of care. Dr. Sacks and MOG argue that Jenner's testimony was unreliable and should have been excluded because it was based on unreliable assumptions and speculation.

¶ 12. Conflicting testimony was presented regarding how long the Taxol was administered and how often Freeman was monitored. The trial judge found credible Freeman's brother's testimony that he vehemently warned Nurse Byrd that Freeman's arm was becoming swollen approximately forty-five minutes after the IV was started. Dr. Sacks and MOG take issue with Jenner's reliance on Freeman's brother's testimony because it contradicted the testimony of Nurse Byrd, Dr. Sacks, and Joanne Pearson, another nurse present at MOG on February 12. According to Nurse Byrd, the full amount of Taxol was administered over the course of three hours. Taking this testimony as true, Nurse Byrd allowed the Taxol to continue to be administered for a little over two hours after she was warned of the swelling. This was an obvious breach of the standard of care which requires a drug to be immediately discontinued upon the discovery of pain and swelling. While Nurse Byrd testified that she did not notice the swelling until after the Taxol was completely administered, the trial judge chose not to accept this testimony. The record is unclear whether Freeman was even monitored after the first hour. Nurse Byrd testified that she checked on him every fifteen minutes but did not document it in his medical records. At most, the record shows that Nurse Byrd could see him from a nursing station across the hall. We find that the above evidence is sufficient to show a deviation from the standard of care.

¶ 13. Dr. Sacks and MOG next argue that the trial court should have relied on the testimony of their nursing expert, Annette Dove, in determining whether the standard of care was breached. They argue that Dove was more qualified than Jenner to testify because Dove was a certified oncology nurse and had personally administered the chemotherapy agents used on Freeman in his chemotherapy treatment. Jenner had never administered Taxol and had no experience with chemotherapy agents since around 1980. Dove's testimony was opposed to Jenner's testimony that successive administration of chemotherapy should be alternated between arms. Also, the nurses contradicted each other as to whether Freeman's vital signs were monitored and how often. However, when sitting as the finder of fact, the trial judge has the sole authority for determining the credibility of witnesses. Yarbrough, 645 So.2d at 870. We cannot find that the trial judge abused his discretion in relying on one expert over the other.

¶ 14. As for proximate causation, Dr. Sacks admitted in his deposition that Taxol caused the injury through an infiltration and that resulted in Freeman developing cellulitis and skin breakdown which necessitated multiple hospital stays. Also, he dictated on multiple occasions for hospital records that Freeman "had an infiltration of Taxol." He also dictated that his impression of Freeman's arm was "[c]ellulitis from infiltration of Taxol." In the hospital discharge summary he dictated that "Mr. Freeman was admitted to ECU [Extended Care Unit] with a diagnosis of cellulitis involving the left upper extremity secondary to Taxol." In his testimony, Dr. Sacks agreed that it would be a breach of the nursing standard of care if the nurse continued to administer Taxol after being told that a patient's arm was swollen. In addition to his repeated admissions that infiltration occurred, Dr. Sacks told Freeman's family that he was responsible for the damage to Freeman's arm and to go ahead and do what they needed to do from a litigation standpoint. Despite the hospital records and deposition testimony admitting that an infiltration had occurred, Dr. Sacks testified at trial that no infiltration occurred and that the injury was likely caused by a hyper-sensitive reaction.

¶ 15. Freeman was treated with Taxol four more times subsequent to the injury on February 12, 1998, with no adverse reaction. Dr. Michael Meshad, the defendants' medical expert, agreed with Dr. Sacks that the damage to Freeman's arm was possibly caused by a hypersensitive reaction. However, on cross-examination, Dr. Meshad acknowledged that he had never seen such damage from a hypersensitive reaction to Taxol and that there was no medical literature to support a theory that such a reaction could cause such extensive tissue damage as was present in this case. Jenner also testified that she could not find support for a theory that a hypersensitive reaction could result in complete tissue destruction. Jenner did, however, cite literature that listed Taxol as a vesicant which by definition could cause tissue damage if leaked outside the vein.

¶ 16. The trial court chose not to accept the testimony of Dr. Meshad and Dr. Sacks on the issue of causation. The trial court specifically found that Dr. Meshad's theory that a hypersensitive reaction caused the damage to Freeman's arm was unsubstantiated. The trial court did not abuse its discretion in dismissing testimony it found to be unsubstantiated.

¶ 17. We cannot find that the trial court abused its discretion in weighing the credibility of the witnesses to determine the cause of Freeman's injury. We find this sufficient to show that negligence in the administration of Taxol or monitoring thereafter was the proximate cause of Freeman's injury.

¶ 18. Finally, Dr. Sacks and MOG argue that even if Dr. Sacks breached the standard of care and proximately caused the alleged injury, Necaise failed to prove the actual harm or extent of damages that Freeman suffered. Necaise submitted bills from Freeman's hospital stays and photographs of the extensive damage he suffered to his arm. Necaise testified that her father was in continuous pain and needed help performing basic tasks.

¶ 19. We find that the trial court's finding of negligence was supported by the record and was not an abuse of discretion.

II. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANTS' DAUBERT MOTION?

¶ 20. Necaise offered Pamela Jenner as an expert witness in the area of chemotherapy nursing. Dr. Sacks and MOG filed a motion to exclude Jenner's testimony. They argued that Jenner was not an expert in the field because she had not practiced nursing in twenty years, had never administered the chemotherapy agents administered to Freeman, was not an advanced oncology certified nurse, and had never been accepted by another court as an expert in the field of chemotherapy nursing. The trial court conducted a Daubert hearing on Jenner's qualifications and found her to be qualified.

¶ 21. Jenner practiced nursing from 1975 to 1985. She testified that she administered chemotherapy to hundreds of patients from 1975 to 1980 when she worked in a hospital's cancer unit. She continued to care for chemotherapy patients on occasion from 1980 to 1985 when she worked as a private duty nurse. She has been a practicing attorney since 1986.

¶ 22. Mississippi Rule of Evidence 702 states:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

This rule emphasizes that it is "the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable." M.R.E. 702 cmt. In McLemore, the Mississippi Supreme Court adopted the federal court analysis for admission or exclusion of expert testimony and applied it to Rule 702. McLemore, 863 So.2d at 35-40 (¶¶ 6-25). The supreme court stated that "whether testimony is based on professional studies or personal experience, the `gatekeeper' must be certain that the expert exercises the same level of `intellectual rigor that characterizes the practice of an expert in the relevant field.'" Id. at 37-38 (¶ 15) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 23. Jenner had not been a practicing nurse in twenty years and was not a certified chemotherapy nurse. However, neither of these facts precluded her from testifying as to her knowledge on the subject. Jenner was a licensed nurse and was familiar with the current standards of chemotherapy administration. A physician who is sufficiently "familiar with the standards of [a medical] specialty, [may testify as an expert, even] though he [does] not practice the specialty himself." Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 120 (¶ 8) (Miss. 2005) (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 718-19 (Miss. 1995)). During her career, Jenner saw infiltrations and extravasations. She was not called to testify as to how the injury was caused or as to the effect of Taxol on a human body. She was called to testify whether the administration of the drugs was done properly. In the motion hearing, Necaise's attorney stated that any theory of causation would be left to the testimony of Dr. Sacks. The length of time from her experience until trial did not disqualify Jenner from testifying. In fact, the defendants' expert, Dove, testified that the standard of care for a nurse had not changed since 1977. Further, Jenner performed extensive research in preparing for trial.

¶ 24. The admission of expert testimony is within the sound discretion of the trial judge. Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098 (Miss. 1997). "[A]n abuse of discretion standard means the judge's decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous." Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss. 2005). We cannot find that the trial judge abused his discretion in allowing Jenner to testify. In reaching this decision, it must be kept in mind in this case that most of the safeguards provided for in Daubert are not as essential where a judge sits as the trier of fact in place of a jury. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).

¶ 25. We find Issue II to be without merit.

III. DID THE TRIAL COURT ALLOW NECAISE'S NURSING EXPERT TO TESTIFY ON ISSUES OUTSIDE THE PRACTICE OF NURSING?

¶ 26. Dr. Sacks and MOG argue that Jenner should not have been allowed to testify as to the cause of Freeman's injury because such issues are outside a nurse's expertise and should be determined by a medical doctor.

¶ 27. Defense counsel objected when Jenner testified that she could not find support in medical literature for the theory that a hypersensitive reaction caused Freeman's injury. The court overruled this objection. The defense asked for and received a continuing objection arguing that Jenner was unqualified to testify as to causation. The plaintiffs attorney directed Jenner to an article that said Taxol infiltrations could lead to severe tissue necrosis or destruction of the tissues. The defendants objected again arguing that the plaintiff was trying to "backdoor" opinion testimony through internet research. The trial judge allowed Jenner to testify on causation based on her designation and the Daubert hearing. She was designated, among other areas, to testify to the following:

monitoring the patient for signs of Taxol extravasation, treatment of Taxol extravasation, and monitoring the patient for hypersensitive reactions to Taxol, the signs and symptoms of hypersensitive reactions, the signs and symptoms of IV infiltration, the medical literature dealing with hypersensitivity and extravasation, and the effects of Taxol extravasation and chemotherapy guidelines for oncology nursing.

¶ 28. A trial court's decision to allow expert testimony will be affirmed "[u]nless we can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case, or the accused in a criminal case." Jones v. State, 918 So.2d 1220, 1223 (¶ 9) (Miss. 2005). We cannot find that the trial court abused its discretion in allowing Jenner to give an opinion on the validity of a hypersensitive reaction theory. Jenner based her opinion on fourteen medical journal articles which were submitted to the court and defendants. Her testimony was that "[h]ypersensitivity reaction has more to do with symptoms that you see right within the first 15 to 20 minutes of administration of the drugs." She also testified that, based on her research, Taxol has properties as a vesicant and irritant. Based on Taxol's properties as a vesicant, Jenner stated that it had the potential to cause severe tissue destruction if it were to leak out of the vein and, thus, should be monitored continuously.

¶ 29. We cannot find that Jenner testified as to areas outside of her expertise. We find this issue to be without merit.

IV. DID THE TRIAL COURT ERR IN FINDING DR. SACKS VICARIOUSLY LIABLE FOR THE ACTS OF NURSE BYRD?

¶ 30. In Hunnicutt v. Wright, 986 F.2d 119, 124 (5th Cir. 1993), the Fifth Circuit, applying Mississippi law, found that "the law imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction and control of the physician." See also Winters v. Wright, 869 So.2d 357, 367 (¶ 24) (Miss. 2003) (adopting Hunnicutt). Dr. Sacks admitted that Nurse Byrd was under his direct supervision and control at the time Freeman was injured. Therefore, the trial court correctly concluded that Dr. Sacks was liable for any negligence that Byrd might have committed when she administered chemotherapy to Freeman.

V. DID THE TRIAL COURT USE UNRELATED MEDICAL BILLS WHEN CALCULATING DAMAGES?

¶ 31. Sacks and MOG argue that the trial court erroneously accepted Freeman's $42,334 in medical bills as evidence of damages when most of the bills were related to unrelated pre-existing conditions. Freeman incurred these medical bills during a hospital stay from February 18, 1998, to March 9, 1998. Freeman was initially admitted to the hospital on February 18 for shortness of breath and fever. He received treatment for cellulitis from February 24 until he was discharged on March 9. We find that the trial court clearly made a distinction between the applicable and non-applicable medical treatment in calculating damages.

¶ 32. In its ruling the trial court stated:

The damages here are substantial. Plaintiff introduced medical bills totaling $42,334.36. While it is arguable that some of the medical care while hospitalized was rendered due to Mr. Freeman's pre-existing condition of cancer, the vast majority of the treatment and need for three hospitalization was due to cellulitis and the overall condition of his arm.

Also, upon admitting the medical bills into evidence the trial court stated, "I'm going to admit them in evidence subject to reviewing them with the admission reports which may cause me to exclude portions of them." Further, at the close of trial, the judge stated, "as the trier of fact, I need to compare some of the medical records with the medical bills that were given to me, as I indicated earlier. . . ." These comments by the trial judge clearly indicate that the medical bills were carefully reviewed and only relevant bills were considered in the calculation of damages.

¶ 33. We find this issue to be without merit.

VI. WAS THE JUDGMENT SUPPORTED BY THE TESTIMONY OR EVIDENCE IN THE RECORD?

¶ 34. Dr. Sacks and MOG argue that the trial judge abused his discretion, was manifestly wrong, and used an erroneous legal standard in finding liability. Also, Dr. Sacks and MOG argue that the trial court relied on several erroneous findings of fact stated in his judgment.

¶ 35. We find the appellants' final contention without merit. The erroneous findings cited by Dr. Sacks and MOG in their brief were either supported by the record or were in dispute. As to the facts in dispute, it is the job of the trier of fact, in this case, the judge presiding over the bench trial, to weigh the witnesses' testimony. Lander, 933 So.2d at 1047 (¶ 18). The trial judge did not abuse his discretion in weighing the testimony and basing his findings on the testimony he determined to be more credible. Further, even if an abuse of discretion is found, we will reverse only where the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258 (¶ 28) (Miss.Ct.App. 2004). Dr. Sacks and MOG have not asserted that a substantial right has been affected.

¶ 36. After reviewing the testimony of the witnesses and seeing pictures of the severe damage to Freeman's arm, the negligence in administering the Taxol is evident. Despite the defendants' argument that Jenner was not qualified to testify, no more extensive expert testimony or even a more qualified expert was necessary for the trial judge to reach a conclusion that the improper administration of Taxol caused the damage to Freeman's arm. It is undisputed that Freeman suffered immensely following the infiltration. His arm continued to swell and the skin died. He was hospitalized three times. As a chemotherapy patient, he was highly susceptible to infections which was only worsened by his arm which was basically an open wound. Freeman's daughter testified that for the next eleven months after the injury and before his death, the arm had to be continuously bandaged, the skin bled on contact with almost any object, and he was in continuous pain.

¶ 37. We cannot find that the trial judge abused his discretion or reached a clearly erroneous decision in finding that the acts of Nurse Byrd, Dr. Sacks, and MOG were negligent. The award by the trial court of personal injury damages in the amount of $217,334.36 is affirmed.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, ISHEE, ROBERTS AND CARLTON, JJ.