Hill v. Mills

26 So. 3d 322, 2010 Miss. LEXIS 42, 2010 WL 309677
CourtMississippi Supreme Court
DecidedJanuary 28, 2010
Docket2008-CA-01343-SCT
StatusPublished
Cited by41 cases

This text of 26 So. 3d 322 (Hill v. Mills) 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
Hill v. Mills, 26 So. 3d 322, 2010 Miss. LEXIS 42, 2010 WL 309677 (Mich. 2010).

Opinions

DICKINSON, Justice,

for the Court.

¶ 1. The primary issue presented by the plaintiff in this medical-negligence case is whether the trial court properly applied Mississippi Rule of Evidence 702 (sometimes referred to as the Daubert1 standard) to exclude the opinions offered by her expert, leading to dismissal of all of her claims. We are also asked to review the trial judge’s denial of the plaintiffs motion to recuse.

BACKGROUND FACTS AND PROCEEDINGS

¶2. On May 8, 2002, Shanika Hill presented to King’s Daughters Medical Center, complaining of lower abdominal pain and vaginal bleeding. Dr. Richard Rushing admitted her for overnight observation. Upon review of an ultrasound, Dr. Rushing determined Hill was fifteen weeks pregnant. After instructing Hill to remain on bed and pelvic rest and to follow up with the Health Department in a week, Dr. Rushing discharged her from King’s Daughters. As instructed, Hill presented to the Health Department on May 16, 2002, where she again complained of spotting and vaginal bleeding.

¶ 3. On May 27, 2002, Hill returned to the King’s Daughters Emergency Department, complaining of abdominal cramping, passing of large clots, and passing of one specimen that appeared to be products of conception. She was treated by Dr. Stephen Mills, who found Hill’s cervix to be closed, with no active bleeding. Nurses were unable to determine the existence of fetal heart tones during auscultation.

¶ 4. Dr. Mills informed Hill she had experienced a complete abortion.2 He did not order an ultrasound, and discharged Hill from King’s Daughters with instructions to return if there was any reoccur-rence of abdominal cramping or vaginal bleeding.

[325]*325¶ 5. On June 8, 2002, Hill returned to King’s Daughters with symptoms of severe abdominal pain and heavy vaginal bleeding. Prior to arriving at the emergency room, she had been vomiting blood and bleeding from her nose. Hill testified she had feared for her life. She informed the emergency department personnel that she had miscarried on May 27, but she was having heavy cramping in her legs and lower abdomen. While waiting for treatment, Hill delivered a nineteen-week fetus, weighing 205 grams. The attending nurse noted a fetal heartbeat, which stopped after five minutes. A second heartbeat was noted by a lab technician, but it stopped before the attending nurse could verify the heartbeat.

¶ 6. Hill and Brian Thomas, the father of the baby, brought a civil action against Dr. Mills, King’s Daughters, and every physician who treated Hill from May 8, 2002, through June 2, 2002. They voluntarily dismissed all defendants other than Dr. Mills.

Expert Opinions.

¶ 7. The plaintiffs engaged Dr. Paul G. Fuselier to examine the records and serve as their expert witness. In his deposition, Dr. Fuselier testified that Dr. Mills had breached the standard of care by failing to order an ultrasound on May 27. Specifically, Dr. Fuselier opined that, had Dr. Mills ordered the ultrasound, he would have discovered the pregnancy and, had the pregnancy been discovered,

there [was] a great probability that with proper instruction, proper medication[,] proper surveillance that her pregnancy could have been extended.... Based on 25 years of obstetrical experience, residency training, et cetera, that given these circumstances, there is a great probability that the pregnancy could have been extended possibly to a point where there would be enough fetal maturity for the baby to survive.

¶ 8. When asked how old a fetus would have to be to survive outside the womb, Dr. Fuselier testified, “The closer you are to 32 weeks, the better off you are. That seems to be the cut off. But after 28 weeks the — -if you’re in a bell — shaped curve, those babies-a lot of those babies with the current modalities we have of treating survive.” When asked whether Hill’s pregnancy could have been extended an additional eight or nine weeks, Dr. Fuselier answered, “Or more.”

¶ 9. Dr. Fuselier’s deposition notice required him to produce “all published or unpublished articles or any other materials relied upon by [him] or otherwise supporting his opinions.” In response to the notice, Dr. Fuselier produced no articles or other materials. When asked in deposition if he could provide any evidence-based scientific literature to support his opinion that bed rest was effective in preventing an early second-trimester miscarriage, Dr. Fuselier testified, “I don’t have that information with me nor do I recall reading that.” When asked if he was aware of any support within the scientific community for his opinion concerning the value of tocolyt-ics 3 in extending pregnancy, Dr. Fuselier testified, “I am not familiar with that literature at all.” When asked if he had ever looked at the literature on subchorianic hematomas,4 Dr. Fuselier responded “not [326]*326recently.” Near the end of his deposition, Dr. Fuselier was asked, “Do you contend that any such evidence-based literature exists to support your statements?” He responded, “I’m not aware today. I’m not sure that I couldn’t find something.”

¶ 10. After deposing Dr. Fuselier, Dr. Mills filed a motion to exclude Dr. Fuselier’s opinions pursuant to Rule 702, using the Daubert standard. Additionally, Dr. Mills moved for summary judgment. In support of the motion to exclude Dr. Fuse-lier’s testimony, Dr. Mills provided the expert opinions of Dr. John C. Morrison, who testified that Dr. Mills did not breach the standard of care by failing to perform an ultrasound. He reasoned that, even had the ultrasound revealed that Hill was still pregnant, there was nothing Dr. Mills could have done to save the pregnancy. With respect to Dr. Fuselier’s testimony that Hill’s pregnancy could have been extended, Dr. Morrison stated:

Dr. Fuselier’s “opinions” that bed rest, surveillance with both acute and maintenance tocolytic therapy, if necessary, could possibly have extended Ms. Hill’s 17 3/7 week pregnancy for an additional 8 or 9 weeks or more following her May 27, 2002, visit to King’s Daughters Medical Center Emergency Department, are totally unsupported in the scientific literature.

¶ 11. At the hearing on Dr. Mills’s motion for summary judgment, Hill’s attorney asked Dr. Morrison:

[Wjould it not be prudent to perform an ultrasound at [the time Hill presented to the emergency room with what appeared to be products of conception]? If you cannot palpate the uterus and you cannot be for certain you did not see a fetus in what was brought in, shouldn’t you perform an ultrasound to verify your diagnosis?

Dr. Morrison responded, “no, ma’am, not necessarily.” And when asked whether giving an ultrasound at that point in diagnosis is the standard of care, Dr. Morrison replied:

It certainly isn’t the standard of care. You can do the $150.00 test if you want to, but I usually do not. If I believe that it’s a completed miscarriage and I believe in my heart if I had been given this information and she had presented to me, or any of my colleagues at University Medical Center, that’s what we would have done. We would have said I’m so sorry; you’ve lost your baby.

Neither Dr. Morrison nor Dr. Fuselier presented any medical literature addressing the efficacy or error of Dr. Fuselier’s opinion that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
26 So. 3d 322, 2010 Miss. LEXIS 42, 2010 WL 309677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-mills-miss-2010.