Bickham v. Grant

861 So. 2d 299, 2003 WL 22100224
CourtMississippi Supreme Court
DecidedSeptember 11, 2003
Docket97-CT-01639-SCT
StatusPublished
Cited by44 cases

This text of 861 So. 2d 299 (Bickham v. Grant) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bickham v. Grant, 861 So. 2d 299, 2003 WL 22100224 (Mich. 2003).

Opinion

861 So.2d 299 (2003)

Ruby Lorene BICKHAM, as the Administratrix for the Estate of Tamara Bickham; Christopher Matthew Bickham; and Christopher Matthew Bickham, II, A Minor, by and Through his Next Friend, Christopher Matthew Bickham,
v.
Dr. Fred Y. GRANT, Dr. John S. Harris, Rush Foundation Hospital and Rush Medical Group, P.A.

No. 97-CT-01639-SCT.

Supreme Court of Mississippi.

September 11, 2003.

*300 James A. Williams, Brookhaven, attorney for appellants.

Mark P. Caraway, Jackson, William B. Carter, Canton, attorneys for appellees.

McRAE, Presiding Justice, for the Court.

¶ 1. The heirs and estate of Tamara Bickham (collectively "Bickham"), deceased, filed this medical negligence case in the Circuit Court of Lauderdale County, Mississippi against Dr. Fred Y. Grant ("Dr.Grant"), Dr. John S. Harris ("Dr.Harris"), Rush Medical Group, P.A. ("Rush Group"), and the Rush Foundation Hospital ("Rush Hospital") (collectively "Defendants"). The jury found for the Defendants, judgment was entered in accordance with that verdict, and the trial court denied Bickham's motion for a JNOV or a new trial. The Court of Appeals initially affirmed the trial court's judgment. However, on motion of rehearing, the Court of Appeals conducted an extensive review, withdrew its prior opinion, and reversed and remanded for retrial limited to the Bickham's claims against Dr. Grant, Dr. Harris, and Rush Group. The Court of Appeals found that the trial court granted erroneous jury instructions regarding the standard of care. Bickham v. Grant, 2001 WL 570018 (Miss.Ct.App.2001). On writ of certiorari, we affirm the Court of Appeals as to its reversal and remand for a new trial against Dr. Grant, Dr. Harris, and Rush Group based on the erroneous jury instructions and its affirmance of the judgment in favor of Rush Hospital.

FACTS

¶ 2. A week after giving birth to her son, Tamara Bickham began having difficulties. She sought treatment in the emergency room of the Rush Hospital on three separate occasions within a week period. Dr. Grant was the obstetrician-gynecologist on call during Bickham's last visit to the hospital on October 22, 1991. Bickham was admitted to the hospital and was diagnosed with endometritis, an inflamation of the inner layer of the uterine wall.

¶ 3. After two days of treatment, Dr. Grant discovered a blood clot in Bickham's leg and prescribed Heparin. Dr. Grant monitored Bickham's condition through the use of a partial thromboplastin time test ("PTT") which compares the time it takes the patient's blood to clot with the clotting time for a control patient.

¶ 4. During treatment, Bickham complained of difficulty breathing, leg pain, and chest pain. Her PTT scores were an average of 53, with an average score for the control group at 32. Twelve days after treatment began, Bickham's conditioned worsened. Dr. Harris was on call during this time. He immediately called Dr. Grant back to the hospital.

¶ 5. On November 3, a nurse noticed Bickham had labored breathing. Dr. Grant then ordered a lung scan which revealed a large pulmonary embolus blocking the left lung and the lower lobe of the right lung. Dr. Grant immediately transferred Bickham to the University Medical Center ("UMC"). At UMC, Bickham underwent surgery to insert a "filter" or "basket" to prevent further blood clots. The treatment proved unsuccessful, and Bickham died on November 10, 1991.

*301 ¶ 6. Bickham's husband, individually and as next of friend of their newborn son, together with the administratrix of her estate filed this medical malpractice action against Dr. Grant, Dr. Harris, the Rush Hospital, and Rush Group. After an eight-day trial, the trial judge allowed certain jury instructions to be read to the jury. Instruction C-20, as given to the jury, provided that:

You are instructed that you have heard from the expert witnesses who have testified in the case differing views as to what would be the proper procedures to be followed by Doctors Grant and Harris in their treatment of Tamara Bickham. If you find from these opinions that two or more alternative courses of action would be recognized by the profession as being proper and within the standard of are and that Doctors Grant and Harris, in the exercise of their best judgment, elected one of the proper alternatives you should find for Doctors Grant and Harris.

(emphasis added). The jury returned a verdict in favor of the Defendants.

¶ 7. Bickham's subsequent appeal was assigned to the Court of Appeals. Bickham argued that the trial court erred in denying the JNOV motion and in giving Instruction C-20 as it is a subjective instruction and is in conflict with this Court's holding in Day v. Morrison, 657 So.2d 808 (Miss.1995). Originally, the Court of Appeals affirmed the trial court's ruling on Instruction C-20. However, on rehearing, the Court of Appeals extensively reviewed the record, withdrew its prior opinion, and reversed and remanded for retrial limited to the Bickham's claims against Dr. Grant, Dr. Harris, and Rush Group determining that the trial court had granted an erroneous jury instruction on the standard of care. A petition for writ of certiorari was filed by the Defendants wherein they claim that the the Court of Appeals erroneously found Instruction C-20 to be reversible error.[1]

DISCUSSION

¶ 8. Jury instructions are to be read as a whole. Southland Enterprises, Inc. v. Newton County, 838 So.2d 286, 289 (Miss.2003). The trial judge has considerable discretion in instructing the jury. Id. (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)). A defendant is generally entitled to an instruction which presents his side of the case; however, such instruction must correctly state the law. Humphrey v. State, 759 So.2d 368, 380 (Miss. 2000) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Furthermore, "[i]t would be error to grant an instruction which is likely to mislead or confuse the jury as to the principles of law applicable to the facts in evidence." Southland Enterprises, 838 So.2d at 289 (citing McCary v. Caperton, 601 So.2d 866, 869 (Miss. 1992)).

I. WHETHER THE COURT OF APPEALS ERRONEOUSLY FOUND INSTRUCTION C-20 TO BE REVERSIBLE ERROR.

*302 ¶ 9. The Court of Appeals, on rehearing, found Instruction C-20 to be subjective and in conflict with this Court's holding in Morrison, 657 So.2d 808. The Court of Appeals opined that just as this Court found the jury instruction involved in Morrison to be subjective and misleading, so too was Instruction C-20. The Defendants argue that the Court of Appeals erred in its reasoning. Specifically, they argue that Instruction C-20 merely instructed the jury on alternative treatments as evidenced by conflicting expert testimony and that the facts in Morrison are wholly distinguishable from the present circumstances. Bickham, of course, agrees with the Court of Appeals' rehearing holding.

¶ 10. In Morrison, the medical malpractice claim instituted by the plaintiff alleged negligence resulting from a penile prosthesis surgery and the defendant doctor's failure to diagnosis and treat the recurring problems which exhibited themselves as a result of the botched surgery. Id. at 809-11. The facts in Morrison are not distinguishable from the present facts as asserted by the Defendants. The holding in Morrison

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Cite This Page — Counsel Stack

Bluebook (online)
861 So. 2d 299, 2003 WL 22100224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bickham-v-grant-miss-2003.