Jerry Bowen v. Amory HMA, LLC

209 So. 3d 440, 2016 Miss. App. LEXIS 436
CourtCourt of Appeals of Mississippi
DecidedJune 28, 2016
Docket2015-CA-00184-COA
StatusPublished

This text of 209 So. 3d 440 (Jerry Bowen v. Amory HMA, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerry Bowen v. Amory HMA, LLC, 209 So. 3d 440, 2016 Miss. App. LEXIS 436 (Mich. Ct. App. 2016).

Opinion

BARNES, J,

for the Court:

¶ 1. On December 6, 2007, Jerry Bowen underwent outpatient surgery on his right shoulder at Amory HMA LLC d/b/a Gilmore Memorial Regional Medical Center (Amory HMA). Bowen signed a “Consent for Anesthesia Services” form prior to surgery, which stated that “loss of sensation, loss of limb function, [and] paralysis” are complications that can occur with the administration of anesthesia and that “Major/Minor Nerve Block” risks include “weakness, persistent numbness, residual pain.” Dr. Patrick Murphree, an anesthesiologist and employee of Amory HMA, administered an interscalene block prior to general anesthesia. After surgery, Bowen experienced continuous numbness and weakness in his shoulder. He sought treatment from several doctors who opined that Bowen had suffered an injury to his brachial plexus nerve, likely as a result of the interscalene block administered by Dr. Murphree.

¶ 2. Bowen filed a complaint on June 2, 2010, alleging that he suffered a “severe and debilitating injury” due to the negligence of Amory HMA and Dr. Murphree. 1 Bowen’s occupation was installing acoustical tiles in ceilings, and he claimed that since the surgery, he had been unable to raise his right arm over his head. He asserted that the Defendants had breached the standard of care “[b]y failing to obtain informed consent from ... Bowen prior to the interscalene block[.]”

¶3. After discovery was. conducted, Amory HMA filed a motion for summary judgment on October 17, 2014, arguing that Bowen failed to produce “any compe *442 tent medical evidence to establish that any of the Defendants deviated, in any way, from the applicable standard of care” or caused the alleged damages. None of Bowen’s doctors who had opined regarding the cause of the nerve damage were designated as experts. The motion further noted that any informed-consent claim should be dismissed against Amory HMA, as it was Dr. Murphree’s duty to obtain informed consent. 2 Dr. Murphree joined Amory HMA’s motion for summary judgment on November 18, 2014. Bowen responded that there were disputed issues of fact concerning whether Dr. Murphree obtained informed consent from Bowen, claiming that he'“would not have agreed to both the interscalene block and general anesthesia had he been informed of the risks and feasible alternatives.” Bowen supplemented his response with Dr. Mur-phree’s answer to the Plaintiffs’ interrogatories, specifically noting answers concerning informed consent. In their reply, the Defendants asserted that Dr. Murphree’s interrogatory responses were not sufficient to defeat summary judgment, again noting Bowen’s failure to provide expert medical testimony to support his claim.

¶4. After a hearing, the trial court granted the Defendants’ motion for summary judgment on January 20, 2015. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. We apply a de novo standard of review to a trial court’s grant of summary judgment. Vick v. Brandon HMA, LLC, 167 So.3d 259, 261 (¶ 10) (Miss.Ct.App.2015) (citing Morton v. City of Shelby, 984 So.2d 323, 329 (¶ 10) (Miss.Ct.App.2007)). A trial court’s consideration of a motion for summary judgment involves “viewing] all evidence in a light most favorable to the non-moving party, [and o]nly when the moving party has met its burden by demonstrating that there are no genuine issues of material fact in existence should summary judgment be granted.” Id.

DISCUSSION

¶ 6. The issue presented on appeal is whether Dr. Murphree breached a duty to Bowen by failing to obtain informed consent prior to administering the interscalene block. In Reikes v. Martin, 471 So.2d 385, 392 (Miss.1985), the Mississippi Supreme Court adopted the objective standard used by the “vast majority of the states” to determine whether a plaintiff may recover under the doctrine of informed consent, holding that “the question [is] whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment.” Accordingly, “a physician is required to ‘disclose those known risks which would be material tc a prudent patient in determining whether or not to undergo the suggested treatment.’ ” Jamison v. Kilgore, 903 So.2d 45, 50 (¶ 16) (Miss.2005). “Thus, where a plaintiff charges that a doctor performed a procedure without first obtaining informed consent, the plaintiffs first task is to establish what are known risks of the procedure. This requires an expert opinion.” Id. at (¶ 17) (emphasis added); see also Whittington v. Mason, 905 So.2d 1261, 1266 (¶ 25) (Miss.2005) (“[EJxpert testimony is required to assist the finder of fact in determining whether a particular risk is material, requiring disclosure to the patient prior to a medical procedure.”).

¶ 7. Bowen’s treating orthopedic surgeon, Dr. John Turba, provided deposition testimony that, “based on reasonable medi *443 cal certainty,” the cause of Bowen’s medical issues was the interscalene block. However, he further testified that the use of an interscalene block was the standard of care and, unless there was some contraindication, his patients having shoulder surgery would almost always receive an interscalene block. Furthermore, Bowen never designated Dr. Turba as an expert. The supreme court has held:

A treating physician must be designated as an expert if the treating physician goes beyond historical facts personally observed and evaluates the evidence in an attempt to explain it to the jury. Therefore, our precedent forbids treating physicians not designated as experts from testifying to standards of care, causation, or using their expertise to explain the significance of a diagnosis or answer hypothetical questions.

Chaupette v. State, 136 So.3d 1041, 1052 (¶ 28) (Miss.2014) (internal citations and quotations omitted). As noted at the motion hearing by counsel for Amory HMA, Dr. Turba “never claimed to be competent to provide an opinion as to the standard of care for an anesthesiologist.”

¶ 8. Bowen argues that Dr. Mur-phree’s responses to his interrogatories “provide[d] the applicable standard of care regarding informed consent.”

INTERROGATORY NO. 2: Provide, in detail, all information you were required to provide to Jerry Bowen to obtain his “informed consent” prior to the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in Amory, Mississippi.
RESPONSE: Objection is made to this Interrogatory to the extent it requests expert opinions. Expert opinion testimony will be identified pursuant to Rule 26(b) of the Mississippi Rules of Civil Procedure. Without waiving any objection, I was required to describe my portion of the procedure and disclose material known risks. The information I provide to patients, including Mr. Bowen, prior to administering an interscal-ene block [is] described in Interrogatory No. 3. Such disclosure does comply with the applicable standard of care.
INTERROGATORY NO.

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Related

Johnson v. Burns-Tutor
925 So. 2d 155 (Court of Appeals of Mississippi, 2006)
Jamison v. Kilgore
903 So. 2d 45 (Mississippi Supreme Court, 2005)
Morton v. City of Shelby
984 So. 2d 323 (Court of Appeals of Mississippi, 2007)
Whittington v. Mason
905 So. 2d 1261 (Mississippi Supreme Court, 2005)
Reikes v. Martin
471 So. 2d 385 (Mississippi Supreme Court, 1985)
Patricia Vick v. Brandon HMA, Inc.
167 So. 3d 259 (Court of Appeals of Mississippi, 2015)
Dunn v. Yager
58 So. 3d 1171 (Mississippi Supreme Court, 2011)
Chaupette v. State
136 So. 3d 1041 (Mississippi Supreme Court, 2014)

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Bluebook (online)
209 So. 3d 440, 2016 Miss. App. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-bowen-v-amory-hma-llc-missctapp-2016.