Nichols v. Moses

859 So. 2d 1042, 2003 Miss. App. LEXIS 1076, 2003 WL 22707786
CourtCourt of Appeals of Mississippi
DecidedNovember 18, 2003
DocketNo. 2002-CA-00710-COA
StatusPublished
Cited by1 cases

This text of 859 So. 2d 1042 (Nichols v. Moses) 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
Nichols v. Moses, 859 So. 2d 1042, 2003 Miss. App. LEXIS 1076, 2003 WL 22707786 (Mich. Ct. App. 2003).

Opinion

MCMILLIN, C.J.,

for the court.

¶ 1. This is an appeal from a defendant’s verdict returned by a Harrison County, First Judicial District, Circuit Court jury in a medical malpractice action. Steven Nichols sought recovery for damages against Dr. Michael Moses, a surgeon who performed an operation intended to correct problems related to a Koch Pouch previously implanted in Nichols. Nichols advanced several alternate theories of liability on the part of Dr. Moses that generally dealt with claims that the surgery was unnecessary and unhelpful in relieving the problem or that the surgery was negligently performed. The issue presented on appeal involves Nichols’s contention that the jury was not properly instructed on the applicable law. We do not find the matters raised in regard to the instructions to rise to the level of reversible error and, for that reason, we affirm the judgment of the circuit court.

I.

Facts

¶ 2. A detailed recitation of the underlying facts does not appear necessary to an understanding of the issues presented in this appeal. In summary, the evidence showed that Nichols had previously undergone a surgical procedure for removal of his large intestine. In 1982, an additional surgery was performed to implant a Koch Pouch — a device that permits the collection of intestinal discharge from the small intestine for periodic removal. In 1997, Nichols began to experience difficulties, including vomiting, nausea, and an inability to eat solid food. Ultimately, Dr. Moses, the treating physician, determined that Nichols had scar tissue or adhesions causing a blockage of the intestinal tract. The suggested remedy was a surgical procedure called an enteroenterostomy, which involves making a new or additional entry from the intestinal tract into the pouch.

¶ 3. After some initial improvement, Nichols began to experience distress once again and he was transferred to the care of Dr. Pollack, a Florida physician with substantial experience with the Koch Pouch. Dr. Pollack determined that another surgical procedure was indicated, but was unable to perform the surgery because of inflammation and swelling in the intestines. After a difficult period of confined bed rest, Nichols improved enough for surgery and Dr. Pollack discovered an adhesion in the small intestines that was causing an obstruction. After Dr. Pollack’s surgery, Nichols recovered.

¶ 4. In his suit against Dr. Moses, Nichols alleged the following actions or omissions constituted a deviation from the standard of care required of a physician in Dr. Moses’s circumstance: (a) that the initial surgery was not indicated because there was no intestinal blockage at the time; (b) that Dr. Moses should have done a retrograde dye flush prior to surgery, which would have plainly shown the existence of any blockages or obstructions that did, in fact, exist; and (c) that the surgery itself was negligently performed, causing a twist or kink in the intestinal tract that led to the post-operation problems corrected by Dr. Pollack.

¶ 5. In attempting to fashion jury instructions that would properly and fairly [1044]*1044instruct the jury as to the law applicable to Nichols’s various alternate theories of liability, the attorneys and the trial court engaged in extended discussion and the pivotal instruction ultimately given as Instruction D-5C was substantially redrafted at the direction of the trial court. The full text of the instruction is quoted in Addendum A to this opinion; however, only certain excerpts from the language of the instruction are essential to an understanding of the central issue argued by Nichols to constitute reversible error. At the insistence of defense counsel, the instruction was modified to instruct the jury that Nichols was required to establish the elements of his negligence claim by a “preponderance of the evidence through medical expert testimony.” (emphasis added). Additionally, at its conclusion, the instruction contained the following sentence: “However, if you believe from the evidence in this case that the Plaintiff Nichols has failed to prove any one of the foregoing elements by a preponderance of the evidence through medical expert testimony in this case, then your verdict shall be for the Defendant Moses.” (emphasis added).

¶ 6. Nichols maintains that the phrase “through medical expert testimony” was an improper addition to the instruction that had the effect of unduly limiting the jury in its consideration of all the evidence and, instead, singling out medical expert testimony as the only evidence to be considered by the jury.

¶ 7. We conclude that this additional phrase inserted into the instruction was not advisable and unhelpful to the jury in its deliberations. However, as Nichols himself concedes in his brief, the phrase does represent an accurate statement of the law regarding proof of negligence in a medical malpractice case. The problem with the addition of the phrase to a jury instruction is that, in our view, it does nothing to aid the jury in its deliberations and is, thus, mere surplusage. Because of the complexity that often arises in attempting to properly instruct a jury in a complicated medical malpractice case or other litigation involving intricate and difficult issues, it is important, in an effort to avoid potential confusion, to winnow out uninstructive passages such as this rather than to add to them phrase upon modifying phrase until even the most conscientious juror’s ability to be enlightened and assisted is strained to the breaking point.

¶ 8. There is no doubt, as Nichols concedes, that the circumstances of this case bring it under the general proposition that negligence in the provision of medical treatment must be proven through expert medical testimony. Walker By and Through Walker v. Skiwski, 529 So.2d 184, 187 (Miss.1988) (citing Cole v. Wiggins, 487 So.2d 203, 206 (Miss.1986)). However, this long-standing rule of law in this state concerns itself more with such issues as witness competency, admissibility of evidence, and the legal sufficiency of the plaintiffs case than it does with the proper instruction of the jury. The proper considerations are all matters that fall within the province of the trial court to control and, to the extent they are properly handled by the trial court, they have already been satisfactorily resolved according to the law before the jury is instructed and the controversy is submitted for decision.

¶ 9. If, for example, the plaintiff is unable to satisfy the trial court that he will be able to present competent expert medical testimony to support his malpractice claim, he may find himself out of court on a summary judgment motion before a jury is assembled. See, e.g., Mallet v. Carter, 803 So.2d 504 (Miss.Ct.App.2002). Also, it is singularly within the province of the trial court, as a part of its duty to control the flow of evidence admitted at [1045]*1045trial, to make a determination as to whether a proffered witness possesses the necessary expertise to offer expert opinion evidence on the critical disputed issues of a malpractice case. M.R.E. 702; See, e.g., Pharr v. Anderson, 436 So.2d 1357 (Miss.1983). If, during the course of the trial, some attempt is made to present such opinion evidence from a witness not qualified to do so, it is the trial court’s responsibility to prevent that evidence from reaching the jury upon timely objection. See, e.g., Roberts v. Grafe Auto Co., Inc., 701 So.2d 1093 (Miss.1997).

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859 So. 2d 1042, 2003 Miss. App. LEXIS 1076, 2003 WL 22707786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-moses-missctapp-2003.