RICHARDSON v. METHODIST HOSPITAL

WALLER, JUSTICE, FOR THE COURT:

¶ 1. The motion for rehearing filed by Wesley Health Center is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Linda Richardson, the daughter of Vivian Wheeless, filed a personal injury and wrongful death action against Methodist Hospital of Hattiesburg, Inc., now known as Wesley Health Center, alleging that Wheeless died as a result of Wesley Health Center's negligent failure to provide adequate care. Summary judgment was granted to Wesley Health Center, from which Richardson seeks our review. Finding there is a genuine issue of material fact concerning whether negligent nursing care caused or contributed to the decedent's pain and suffering during her hospitalization, we reverse the summary judgment in part and remand for a jury trial on that claim. However, we affirm the summary judgment in favor of Wesley Health Center on the wrongful death claim because Richardson failed to present proof sufficient to causally connect the death of Wheeless to deficient care.

¶ 3. After complaining of nausea and vomiting blood, Wheeless was admitted to Wesley Health Center where she was originally diagnosed with upper gastrointestinal hemorrhage. Wheeless had a history of poor health, which included a stroke, delirium tremens secondary to alcohol abuse, elevated heart rate, fast breathing, and high blood pressure. During her stay at Wesley, Wheeless suffered a second stroke and subsequently died. The cause of Wheeless's death was recorded on the death certificate as cerebral vascular accident (stroke) secondary to artherosclerotic vascular disease as a consequence of hypertension. Wheeless's physicians concluded the stroke was caused by a totally blocked left carotid artery. Wheeless was a patient at Wesley from December 5, 1996, until her death on January 8, 1997.

¶ 4. Richardson alleges that Wesley caused or contributed to her mother's pain, suffering, and death by providing negligent and sub-standard nursing care. Richardson's expert was Crystal D. Keller, a Registered Nurse and Certified Legal Nurse Consultant, who was designated to testify to the appropriate nursing standards of care and deviations therefrom committed by the hospital staff. In her report, Keller set out in detail areas of failure attributable to the nursing staff at Wesley, which included: failure to monitor adequately; failure to inform physicians of significant changes in the patient's status; failure to follow physician's orders; failure to safeguard adequately; failure to provide adequate care; failure to document properly, accurately, and consistently; failure to assess and reassess adequately; failure to implement an appropriate plan of care; failure to evaluate the patient appropriately; failure to use critical thinking in the nursing process; and failure to assess adequately the patient's risk for injury. Keller's proffered testimony cites there were noted instances during Wheeless's hospitalization where she exhibited signs of gastrointestinal bleeding (black tarry stools), decreased laboratory values, changes in mental status and confusion, decreased blood pressure, increased heart and respiratory rates, restlessness, and agitation, all of which either were not reported to the physician or documented appropriately. Keller opined that the deviations from the requisite standard of nursing care led to Wheeless's suffering and subsequent death.

¶ 5. This Court conducts a de novo review of summary judgment motions and, therefore, considers facts without any deference to the trial court and applies its own interpretation of the law. Daniels v. GNB, Inc ., 629 So.2d 595, 599 (Miss. 1993).

¶ 6. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. M.R.C.P. 56(c). The standard of review for granting or denying summary judgment is that summary judgment must be denied unless the moving party has shown it is entitled to judgment as a matter of law after the trial court has reviewed all evidentiary matters in the light most favorable to the non-moving party. This was set out by this Court in Aetna Cas. Sur. Co. v. Berry , 669 So.2d 56, 70 (Miss. 1996), as follows:

The standard for reviewing the granting or the denying of summary judgment is the same standard as employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

A. Testimony as to Pain and Suffering

¶ 7. Richardson argues that summary judgment should not have been granted because there was a genuine issue of fact concerning Wheeless's pain, suffering, and death, established through the expert testimony of Keller. In support, Richardson offers Keller's education and sixteen years experience as a registered nurse and six years work as a legal consultant. Richardson believes that Keller's expert opinion is admissible as it is "helpful to the trier of fact," which is the relevant inquiry to be made pursuant to Mississippi Rule of Evidence 702.

¶ 8. We set the standard for expert witnesses in medical malpractice cases in Hall v. Hilbun , 466 So.2d 856 (Miss. 1983), where we said expert opinion testimony should be allowed where the witness is qualified and independent, and the testimony will assist the trier of fact. We find the trial court's ruling was overly restrictive in not allowing Keller to testify concerning the appropriate standard of nursing care and the deviations from that standard. There is sufficient proffered evidence from Keller for a jury to consider whether the inadequate nursing care resulted in worsening Wheeless's physical pain and suffering.

¶ 9. Wheeless's treating physician provided further support to the deficiencies outlined by Keller. Steven Farrell, M.D., treated Wheeless while she was hospitalized at Wesley and was deposed concerning his treatment and observations of Wheeless. Dr. Farrell expressed concern over the standard of nursing care that Wheeless received, stating that he believed the nurses were deficient in failing to timely notify him and the other treating physician concerning melenic (bloody) stools that were observed after Wheeless's admittance to the hospital. Even though Dr. Farrell did not opine that the gastrointestinal bleeding was in any way associated with the stroke that ultimately caused Wheeless's death, he did testify that the unreported bleeding could have negatively affected her condition. Dr. Farrell explained that the melenic stools would indicate either continued or repeat gastrointestinal bleeding and that there were also notations in the treatment records of low hemoglobin counts which could be indicative of significant hemorrhaging. Dr. Farrell stated "the loss of blood contributed to angina that she had, the chest pain that she had, and reflected poor blood flow to her heart." He went on to say that the continued bleeding could have led to heart problems and may have led to Wheeless's confusion because of poor blood flow to the brain.

¶ 10. In Drummond v. Buckley, 627 So.2d 264 (Miss. 1993), the plaintiff filed a medical malpractice action after suffering pain and swelling in his lower back following surgery for a herniated disc. In Drummond, the plaintiff did not have an expert witness to show proximate causation; however, we ruled summary judgment was precluded. The facts of Drummond reflect there was a dispute over a conversation between the physician and patient over the doctor's recommendation that the patient enter the hospital for treatment of his back infection. We noted that Clayton v. Thompson , 475 So.2d 439, 445 (Miss. 1985), stated "proximate cause arises when omission of a duty contributes to cause an injury." Drummond , 627 So.2d at 270. Here there is substantial evidence documenting deficient nursing care that may have contributed to Wheeless's suffering.

¶ 11. The fact that Keller is not a physician does not bar her right to testify concerning the standard of care for the nursing staff, but more appropriately may affect the weight of her testimony, which is an issue for the trier of fact. Considering all of the evidence in the light most favorable to Richardson, we find there is a genuine issue of fact concerning whether Wheeless suffered more physically and incurred more expense from the failures of the nursing staff documented by Wheeless's expert and that the circuit court improperly granted summary judgment as to pain and suffering.

¶ 12. Wesley argues that the claim for the pain and suffering as an element of the wrongful death action should likewise be denied pursuant to Wilks v. American Tobacco Co ., 680 So.2d 839 (Miss. 1996). In Wilks , the jury found that cigarette smoking did not proximately cause the decedent's death. The heirs contended on appeal they were at least entitled to the decedent's lifetime damages that the heirs believed were overwhelmingly proven to be caused by cigarette smoking. The heirs' cause of action was exclusively under Mississippi's wrongful death statute. We held the personal injury action could not be maintained where it was not alternatively claimed under Mississippi's survival statute. Id . at 843.

¶ 13. The facts in Richardson's case reflect that the nurses' negligent actions exacerbated Wheeless's condition and caused pain and suffering, even if that negligence was not determined to be the ultimate cause of death. Though the survival statute is not specifically cited in the complaint, the pleadings in this case delineate two specific causes of action and are sufficient under our system of notice pleadings. We hold that Richardson demonstrated a genuine issue of material fact requiring a trial on her separate cause of action for Wheeless's pain and suffering. Therefore, the circuit court erred in granting summary judgment as to that claim.

B. Testimony as to the Cause of Death

¶ 14. While Keller is qualified to testify concerning deviations in nursing care and resultant pain and suffering, she is not qualified to testify concerning the causal nexus between these deviations and Wheeless's death.

¶ 15. Richardson has cited other cases involving personal injuries where medical testimony was not required for proof of causation, including our decision in Sonford Prods. Corp. v. Freels , 495 So.2d 468 (Miss. 1986), overruled on other grounds, Bickham v. Department of Mental Health , 592 So.2d 96, 98 (Miss. 1991). In Sonford, we held that a toxicologist should have been able to render expert testimony that prolonged exposure to toxic chemicals caused injury and death to a workers' compensation claimant. We further held that there need not be expert testimony from a medical doctor to establish causation. 495 So.2d at 474.

¶ 16. While we do not require expert testimony by a medical doctor in order to establish the cause of death, the plaintiff must show that there is causation in fact. Trapp v. Cayson , 471 So.2d 375, 383 (Miss. 1985). It is not enough to show that there were deviations from the requisite standard of care for nursing. Here, Richardson has failed to make a required showing that the nurses' negligent failure to abide by the standard of care in fact caused or contributed to Wheeless's death.

¶ 17. The cause of a stroke or, in Wheeless's case, a second stroke, is a complex medical issue. Wheeless's doctors discussed the cause of death in detail, and none were supportive of Richardson's theory of wrongful death.

¶ 18. The trial court ruled that Richardson's designated expert witness, Keller, was not "qualified by education or experience to render relevant testimony with regard to the mechanism of Ms. Wheeless's death and/or causal connection between these alleged deviations and Ms. Wheeless's multiple severe medical problems," and therefore "would not be allowed to render medical opinions as to the multiple medical diseases and/or conditions suffered by the Plaintiff during this lengthy hospitalization at Wesley or the cause of these conditions and/or the cause of her death."

¶ 19. We agree with the circuit court that Keller lacks the requisite education and experience as an expert to testify concerning the causal link between Wheeless's death and the alleged deviations in nursing care and further that her proffered testimony does not specify such a link. Therefore, the circuit court did not err in granting summary judgment for Wesley on the charge of causing her wrongful death.

¶ 20. The trial court erred in granting summary judgment to Wesley on Richardson's claim for Wheeless's pain and suffering. We therefore reverse the judgment below in part and remand to the Circuit Court of Lamar County for a jury trial on the claim for Wheeless's pain and suffering. In all other respects, we affirm the judgment below.

¶ 21. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, EASLEY AND GRAVES, JJ.