Mississippi Baptist Health Systems, Inc. v. Kelly

88 So. 3d 769, 2011 WL 6157656, 2011 Miss. App. LEXIS 792
CourtCourt of Appeals of Mississippi
DecidedDecember 13, 2011
DocketNo. 2009-CA-01796-COA
StatusPublished
Cited by12 cases

This text of 88 So. 3d 769 (Mississippi Baptist Health Systems, Inc. v. Kelly) 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
Mississippi Baptist Health Systems, Inc. v. Kelly, 88 So. 3d 769, 2011 WL 6157656, 2011 Miss. App. LEXIS 792 (Mich. Ct. App. 2011).

Opinions

ISHEE, J.,

for the Court:

¶ 1. Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center (Baptist), appeals the Hinds County Circuit Court jury award of $4,691,000 in favor of Jonathan Kelly and the estate of his wife, Ellen Kelly, for her wrongful death. The subject tort was committed in 2000, and the subsequent lawsuit was filed in 2001. Both occurred before the passage of Mississippi Code Annotated section 11-1-60 (Supp.2011), which capped non-economic damages in medical-malpractice lawsuits at $500,0001 and actual economic [772]*772damages at $1,000,000.2

¶ 2. Baptist argues the following on appeal: (1) the verdict is inconsistent because the jury found the doctors who cared for Ellen were not at fault, yet the jury held the nurses and their employer, Baptist, were responsible for Ellen’s death; (2) portions of Ellen’s medical records were improperly excluded; (3) there was insufficient evidence of Ellen’s pain and suffering to support the award; (4) the verdict was contrary to the overwhelming weight of the evidence; and (5) the trial court’s award of 8% interest on the judgment was improper. Finding no errors, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Ellen was a twenty-nine-year-old attorney and mother of two sons, Adam O’Malley and Jacob Kelly, ages ten and two at the time of her death. She was married to Jonathan, and the family lived outside of Monticello, Mississippi. She was employed by the Mississippi Department of Human Services in the child-support-collection division. On July 10, 2000, Ellen was admitted to Baptist to undergo a hysterectomy and a partial vulvectomy, both of which were recommended by her gynecologist, Dr. Fred Ingram. Dr. Ingram had been Ellen’s obstetrician-gynecologist since 1997. He treated her throughout her second pregnancy and delivery, which included two hospitalizations at Baptist. She was hospitalized once during the early months of her pregnancy and again in 1998 for the Caesarean-section delivery of her second child.

¶ 4. On July 10, 2000, Dr. Ingram performed Ellen’s surgery with the assistance of his partner, Dr. Doug Odom. It is undisputed Ellen regained consciousness after the surgery. However, Jonathan’s expert physician, Dr. Eric Gershwin, testified Ellen experienced an allergic reaction to the latex she was exposed to during the surgery. She complained of itching, had blisters on her lips, redness of the face, and nausea following the surgery. She was given Benadryl for the itching and Phener-gan for the nausea and vomiting. Dr. Patricia Beare, a nursing expert, testified the administration of Benadryl was a possible sign of an allergic reaction.

¶ 5. Jonathan remained with Ellen throughout the afternoon and night following her surgery and spoke to her approximately every forty-five minutes. In the early morning, Jonathan heard Ellen making “gasping [and] gurgling sounds.” When she was unable to respond to Jonathan, he contacted her nurse. The nurse then called Dr. John Brooks, an emergency physician. Dr. Brooks immediately in-tubated Ellen. She had also developed ventricular tachycardia, a condition where the heart is unable to maintain its rhythm, and she lost her pulse. Due to the intubation, Ellen was unable to breathe on her own. Thereafter, she was placed on a ventilator and transferred to the intensive care unit (ICU) at Baptist. Ellen had no neurological function following cardiac arrest and never regained consciousness. The family elected to take her off the ventilator four days later, and she died on July 14, 2000.

¶ 6. Jonathan brought a wrongful-death action in the Hinds County Circuit Court.3 [773]*773He claimed Ellen died of anaphylactic shock due to the doctors’ and Baptist’s negligent failure to discover Ellen was allergic to latex and to thereafter take proper precautions. He asserted Ellen died as a result of the latex allergy, which caused her cardiac arrest.

¶ 7. At trial, Jonathan introduced Baptist’s latex allergy policies and procedures. Those policies and procedures require that upon admission, “all patients should be assessed for [a] latex allergy.” The policy also provided that patients should be questioned about certain items which would indicate a patient was at a high risk of having a latex allergy. The “ABC Food Allergies (Avocado, Banana, Chestnuts)” are an example of one such risk. On the Pre-Procedure/Surgery Check List, prepared on July 3, 2000, by Nurse Debra Priester (Priester), Ellen’s allergies were listed as “sulfa, Lorcet, dairy products, seafood[,] and adhesive tape.” The listing “old chart sent with patient” was also marked with an “X.”

¶ 8. On a nursing admission history and assessment form, prepared a week before surgery, Ellen’s allergies were listed as “sulfa, Lorcet, all dairy products and seafood, adhesive on Band-Aids.” This form also included a subsection titled “Latex Allergy Alert” and listed various questions probing for a latex allergy. At the top of the form is the notation, “Notify MD if Yes.” A nursing expert testified this notation meant the physician should be notified if the patient answered affirmatively to any of the questions. The first question on the form asked whether “[patient] knows allerg[y] to latex.” Neither box was cheeked, but a dash was written beside “[n]o.” The second question asked whether “[patient] has ABC Allergy (Avocado, Banana, Chestnut).” “Chestnut” was circled and the “[y]es” box was checked. The next question asked whether “[patient] has had unexplained hypotension or anaphylaxis during [a] previous surgery”; neither box was checked. However, written in parentheses after the question was “had epi [and] spinal.”

¶ 9. Priester, the nurse who completed the form, testified the Latex Allergy Policy/Procedure for Baptist required a nursing assessment for each patient to minimize the risk of patients having an allergic or anaphylactic reaction to latex during a surgical procedure. The assessment intended to discover the patient’s known allergens to latex. According to the policy: “Patients included as high risk may include: ... ABC Food Allergies (Avocado, Banana, Chestnuts).” If a risk of a latex allergy was detected, the procedures required the nurse to indicate that risk on the assessment form. According to the protocol in Baptist’s Latex Allergy Policy/Procedure, if a known allergy or sensitivity to latex is identified in the patient’s admission history, an allergy sticker should be placed on the front of the patient’s chart, signage should be placed on the patient’s door, central supply and purchasing should be notified regarding any special supplies or products needed for the patient, and food and nutrition services should be notified to ensure servers would not wear latex gloves when serving the patient food.

¶ 10. Priester then testified regarding the form dated July 3, 2000. On the Latex Allergy Alert portion of the assessment regarding the question, “[patient] knows allerg[y] to latex,” Priester stated neither box was checked because Ellen did not tell her she had a latex allergy. However, she had just testified she did not have any independent knowledge of Ellen’s assessment completed some nine years before. When asked about the fact Ellen circled “chestnuts” as an allergy, Priester testified that in her opinion, “one item in and by [774]

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Bluebook (online)
88 So. 3d 769, 2011 WL 6157656, 2011 Miss. App. LEXIS 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-baptist-health-systems-inc-v-kelly-missctapp-2011.