IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-00987-SCT
PAULA LEE VAUGHN
v.
MISSISSIPPI BAPTIST MEDICAL CENTER
DATE OF JUDGMENT: 05/28/2008 TRIAL JUDGE: HON. W. SWAN YERGER COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BILL WALLER, SR. ATTORNEYS FOR APPELLEE: GAYE NELL LOTT CURRIE EUGENE RANDOLPH NAYLOR NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED - 10/29/2009 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. This appeal stems from the Hinds County Circuit Court’s grant of summary judgment
in favor of Mississippi Baptist Medical Center (Baptist), based on the circuit court’s finding
that the plaintiff, Paula Vaughn, failed to establish a prime facie case of medical negligence.
The trial court found that Vaughn had failed to establish the necessary element of proximate
cause based on its finding that Vaughn’s designated expert, a nurse, was not qualified to
testify as to whether the negligent acts of Baptist proximately caused Vaughn’s injuries.
Moreover, the trial court declined to grant Vaughn’s Motion to Amend Rulings of the Court to allow Vaughn more time to designate another expert. Aggrieved, Vaughn appeals to us.
Finding no error, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. On or about October 24, 2005, Paula Vaughn was admitted to Mississippi Baptist
Medical Center (Baptist) in Jackson for double artery bypass surgery and the repair of two
valves connected with her heart. Additionally, Vaughn had arteries removed from the upper
insides of both thighs, which resulted in bilateral, open wounds. The various procedures left
Vaughn unable to ambulate or use the bathroom without assistance from Baptist staff.
Vaughn alleged that the staff’s failure to assist her caused her involuntarily to defecate and
urinate, thus contaminating her leg wounds, and resulting in infection. This is disputed by
Baptist, which has maintained throughout the course of proceedings that Vaughn did not
have a staph infection during this initial hospitalization. Vaughn further alleged that her
nurses at Baptist were negligent in their treatment of her in that they failed to notify a
physician of infection and failed to properly dress and care for her wounds.
¶3. Vaughn was discharged from Baptist and transferred to Montfort Jones Hospital in
Kosciusko on November 2, 2005. Baptist maintains that at the time of Vaughn’s admission
to Montfort Jones, no infection was present in the wound sites; and the admitting staff at
Montfort Jones noted that Vaughn’s surgical wounds were dressed and intact. Vaughn was
discharged from Montfort Jones at her request on November 4, 2005. Vaughn returned to
Montfort Jones on November 6, 2005, exhibiting weakness, dehydration, acute renal failure,
and surgical wound infection.
2 ¶4. She was readmitted to Baptist the following day. During this second hospital stay, she
received further treatment for her leg wounds. Vaughn alleged that the nursing staff again
failed properly to change the dressings as ordered. On November 21, 2005, Vaughn was
referred to Brandon Nursing and Rehabilitation Center, LLC. Vaughn alleged in her
complaint that she continued to receive negligent care of her wounds while at the
rehabilitation center. She remained at this facility until December 5, 2005, when she was
readmitted to Baptist.
¶5. Vaughn received wound vac care for her leg wounds and two units of blood due to
low blood count. This particular hospitalization was from December 5, 2005, through
December 9, 2005, when she was referred to Mississippi Hospital for Restorative Care.
¶6. On October 9, 2006, Vaughn filed suit in the Circuit Court for the First Judicial
District of Hinds County against Baptist, Brandon Nursing and Rehabilitation Center, LLC;
and John and Jane Does 1-20. Vaughn’s complaint alleged, inter alia, that Baptist, by and
through its agents and employees, failed to use due or reasonable care in her examination,
care, diagnosis, and/or treatment. Baptist filed its response on November 6, 2006. Brandon
Nursing and Rehabilitation Center, LLC filed its own answer and Motion to Compel
Arbitration, or Alternatively Motion to Dismiss. Brandon Nursing and Rehabilitation Center,
LLC, later settled with Vaughn and was dismissed with prejudice by Agreed Order.
¶7. Vaughn subsequently amended her complaint against Baptist and John and Jane Does
1-20. An amended scheduling order was entered on September 19, 2007, requiring Vaughn
to designate her experts on or before November 2007. Vaughn designated four experts:
3 Crystal Keller, R.N.; Dr. Victor Kessler; Dr. Bashrat Houssein; and Dr. Pierce D. Dotherow,
II. The majority of the testimony regarding standard of care, breach of the standard of care,
and proximate cause was to come from Nurse Keller. Dr. Victor Kessler, one of Vaughn’s
treating physicians at Baptist, was designated to testify that Vaughn had suffered
gastrointestinal complications as a result of the antibiotics used to treat Vaughn’s staph
infection and other infections while a patient at Baptist. Drs. Houssein and Dotherow also
treated Vaughn at Baptist ; both physicians were expected to testify regarding their diagnoses
and treatment of Vaughn, but not to testify as to any negligent acts on the part of Baptist
staff.
¶8. The trial court’s Order Granting Defendant’s Motion for Summary Judgment,
Opinion/ Order Granting Defendant’s Motion to Strike, Order Denying Motion to Amend
Rulings of the Court, and Final Judgment of Dismissal with Prejudice all were entered on
May 29, 2008. Vaughn, by and through counsel, filed a Notice of Appeal on June 10, 2008,
appealing all four of the aforementioned orders. Since Brandon Nursing and Rehabilitation
Center, LLC, was dismissed with prejudice due to settlement, and since Vaughn never
substituted any parties for John and Jane Does 1-20 pursuant to Mississippi Rule of Civil
Procedure 9(h), all necessary parties are properly before this Court on appeal.
DISCUSSION
¶9. Vaughn raises the following assignments of error by the trial court for this Court’s
review:
4 1. It was error for the lower court to grant summary judgment and determine that there was no genuine issue of material fact with regard to the proximate cause of Vaughn’s infection, including that there was no infection in Vaughn’s legs proximately resulting from any acts or omissions of Mississippi Baptist Medical Center.
2. It was error for the lower court to grant summary judgment in its entirety as Keller was qualified to testify as to the nursing standard of care and breach thereof.
3. It was error for the lower court to grant Mississippi Baptist Medical Center’s motion to strike Crystal Keller, R.N. as an expert witness and determine that she was not qualified to offer expert medical testimony regarding medical diagnosis and causation on the subject case. The claim is for damages arising from negligent “nursing care” and witness Keller is well qualified to present the “nursing standard of care.”
4. It was error for the lower court to deny Vaughn’s Motion to Amend Rulings of the Court.
¶10. For the sake of brevity, the issues have been restated as follows: (1) whether the trial
court erred in granting summary judgment based on Vaughn’s failure to establish proximate
cause; (2) whether the trial court erred in striking Nurse Keller as Vaughn’s designated
expert; and (3) whether the trial court erred in denying Vaughn’s Motion to Amend Rulings.
I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BASED ON VAUGHN’S FAILURE TO ESTABLISH PROXIMATE CAUSE.
¶11. This Court employs a de novo standard of review when reviewing a trial court’s grant
of summary judgment. Duckworth v. Warren, 10 So. 3d 433, 436 (Miss. 2009) (citing One
South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007)). Summary judgment properly
may be granted where “the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
5 material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R.
Civ. P. 56(c). See also Johnson v. City of Cleveland, 846 So. 2d 1031, 1034-35 (Miss.
2003). In considering a motion for summary judgment in this fashion, the trial court must
view all evidence before it as properly submitted pursuant to Rule 56 in the light most
favorable to the nonmoving party. Duckworth, 10 So. 3d at 436-37 (citing One South, 963
So. 2d at 1160).
A. Whether Vaughn’s experts were able to establish the necessary element of proximate cause.
¶12. The trial court, in its Order Granting Defendant’s Motion for Summary Judgment,
found that the evidence before the court showed Vaughn’s infection did not proximately
result from any acts or omissions of Baptist. Moreover, the trial court found that Vaughn had
presented no proof from a medical expert, as required by law, that Baptist proximately
caused any infection. As a result it granted summary judgment, and the trial court struck
Vaughn’s expert, Crystal Keller, R.N., finding that nurses could not properly offer expert
testimony as to medical causation.
¶13. Baptist argues that the trial court was correct in this finding, inasmuch as Vaughn’s
designated expert was not qualified to diagnose an infection and, according to Vaughn’s
treating physician at Baptist, no infection was present in the leg wounds during her first
hospitalization from October 24, 2005, through November 2, 2005. Baptist contends that,
because Nurse Keller is not qualified to make a medical diagnosis, she is not qualified to
render an opinion as to medical causation. According to Baptist, because no genuine issue
6 of material fact exists with regard to the requisite element of proximate cause, it was entitled
to summary judgment as a matter of law.
¶14. Vaughn argues that as a nurse, Keller was trained to recognize the signs and
symptoms of infection and that Keller never opined as to anything above and beyond a
nurse’s area of practice. Keller maintained that Vaughn had signs and symptoms of infection
during her first hospitalization at Baptist and that a breach in the standard of nursing care
caused Vaughn’s staph infection. Alternatively, Vaughn contends that, even if there was no
infection during the initial hospitalization, the negligent care Vaughn received during
subsequent hospitalizations contributed to the progression of the infection.
¶15. Our law is clear as to what is required to make out a prima facie case of medical
negligence. This Court recently stated:
In order to establish a prima facie case of medical negligence, [a plaintiff] must prove that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiff’s injury, and (4) the plaintiff was injured as a result.
McDonald v. Memorial Hosp. at Gulfport, 8 So. 3d 175, 180 (Miss. 2009) (quoting Delta
Reg’l Med. Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007)). The general rule in
Mississippi is that “medical negligence may be established only by expert medical testimony,
with an exception for instances where a layman can observe and understand the negligence
as a matter of common sense and practical experience.” Coleman v. Rice, 706 So. 2d 696,
7 698 (Miss. 1997) (quoting Erby v. N. Miss. Med. Ctr., 654 So. 2d 495, 500 (Miss. 1995)).
See also Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (Miss. 2009).
¶16. The experts Vaughn designated were Crystal Keller, R.N., Dr. Victor Kessler, Dr.
Bashrat Houssein, and Dr. Pierce D. Dotherow, II. Drs. Houssein and Dotherow were
expected to testify regarding their assessment and treatment of Vaughn, but not to testify as
to any acts of negligence on behalf of the Baptist staff. Dr. Victor Kessler, one of Vaughn’s
treating physicians at Baptist, was expected to testify that Vaughn had suffered
gastrointestinal complications as a result of the antibiotics used to treat Vaughn’s staph
infection and other infections while a patient at Baptist Hospital. Thus, Nurse Keller was the
only witness designated to testify as to standard of care, breach of standard of care, the causal
nexus between the alleged negligent acts of the Baptist nursing staff, and the resulting staph
infection incurred by Vaughn.
¶17. As to the element of proximate cause, Nurse Keller’s affidavit read as follows:
The deviations in the Nursing Standard of Care by the nursing staff at Baptist Hospital led to the development of signs and symptoms of infection in her bilateral leg wounds during her October 24-November 2, 2005 admission to Baptist Hospital. In addition, the deviations in the Nursing Standard of Care by the nursing staff at Baptist Hospital resulted in the further development of and progression of infection in her bilateral leg wounds during the initial admission and subsequent admissions to Baptist Hospital.
¶18. Both parties cite Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So. 2d
1244 (Miss. 2002), in support of their arguments. In Richardson, the same expert witness,
Crystal Keller, R.N., opined that Methodist Hospital staff’s deviation from the requisite
standard of nursing care led to the patient’s pain and suffering and subsequent death. Id. at
8 1245. Testimony by Keller that the deviation in the standard of nursing care was the
proximate cause of the patient’s death was found by this Court to be outside the realm of
Nurse Keller’s qualifications. Id. at 1248. The reasoning behind this holding was that the
cause of a stroke is a complex medical issue that was outside the scope of the education and
experience of Nurse Keller; therefore, she lacked the qualifications to establish a causal
nexus between the deviations in nursing care and cause of death. Id. at 1248. However, this
Court found that Keller could offer an expert opinion as to whether the negligent acts on
behalf of the nursing staff proximately caused the plaintiff’s pain and suffering. Id. at 1247-
48.1
¶19. Baptist cites Richardson in support of its premise that a nurse is not qualified to
testify as to whether the deviation in the standard of nursing care caused Vaughn’s staph
infection, nor is Keller qualified to diagnose a staph infection. Baptist points to Nurse
Keller’s opinion that Vaughn was suffering from infection of her surgical leg wounds during
Vaughn’s initial hospitalization from October 24, 2005, until November 2, 2005 – a
diagnosis that contradicted the opinions of Vaughn’s treating physician, Dr. McMullan, and
Baptist’s infectious disease expert, Dr. Rathel L. Nolan, III.
1 The dissent cites Richardson as authority that Keller at least should be allowed to testify as to Vaughn’s “pain and suffering, depression, mental anguish, emotional distress, and loss of dignity.” Dis. Op. ¶ 45. However, in today’s case, nowhere in Keller’s affidavit does she state, or even infer, that she would attempt to offer testimony concerning Vaughn’s “pain and suffering, depression, mental anguish, emotional distress, and loss of dignity.” Likewise, on appeal, Vaughn makes no effort to assert that Keller would offer such testimony.
9 ¶20. There is no dispute between the parties that a staph infection developed in the surgical
wounds. There is a dispute, however, as to when the infection developed, more specifically,
whether it developed during Vaughn’s initial hospitalization. While Richardson explicitly
held that a nurse cannot testify as to cause of death, we agree with Baptist that Richardson
should be interpreted as having made impermissible any testimony from a nursing expert on
diagnostic impressions, because nurses are not qualified to make medical diagnoses or attest
to the causes of illnesses. Richardson, 807 So. 2d at 1247-48. We now explicitly hold that
nurses cannot testify as to medical causation.
¶21. Since medical diagnosis is outside a nurse’s scope of practice, logically it would
follow that a nurse should not be permitted to testify as to his/her diagnostic impressions or
as to the cause of a particular infectious disease or illness. This is in keeping with the
majority rule that nursing experts cannot opine as to medical causation and are unable to
establish the necessary element of proximate cause. See Richberger v. West Clinic, P.C.,
152 S.W.3d 505, 511 (Tenn. Ct. App. 2004) (“registered nurse is prohibited from making a
medical diagnosis [pursuant to T.C.A. § 63-7-103(b),] and is therefore not competent to offer
opinions on medical causation in a medical malpractice action.”);2 Elswick v. Nichols, 144
F. Supp. 2d 758, 767 (E.D. Ky. 2001) (nursing expert cannot testify as to how plaintiff
2 Mississippi Code Section 73-15-5(2) (Rev. 2008), is very similar to Tennessee Code Section 63-7-103(b), on which the Tennessee Court of Appeals relied in Richberger. Tennessee Code Section 63-7-103(b) states in pertinent part that “the practice of professional nursing does not include act of medical diagnosis. . .” Mississippi Code Section 73-15-5(2) (Rev. 2008) states in pertinent part that the “practice of nursing . . . shall not be deemed to include acts of medical diagnosis. . . .”
10 received infection because it was “outside [her] area of expertise”); Colwell v. Holy Family
Hosp., 15 P.3d 210, 213-14 (Wash. Ct. App. 2001) (holding that while nursing expert
“possesse[d] the education and skill to testify to the standard of care of the decedent's treating
nurses, a medical doctor must still generally connect [decedent’s] death to the alleged nursing
deficiencies. Accordingly, the trial court did not abuse its discretion in finding [a nurse]
incompetent to testify to medical causation.”); Long v. Methodist Hosp. of Indiana, Inc.,
699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998) (“[W]e now hold that nurses are not qualified
to offer expert testimony as to the medical cause of injuries.”); Phillips v. Alamed Co., Inc.,
588 So. 2d 463, 465 (Ala. 1991) (“[W]e cannot say that the trial judge abused his discretion
by requiring the testimony of a physician and, implicitly, holding that a registered nurse was
not competent to testify as an expert on the issue of proximate cause.”).
¶22. Vaughn cites Sacks v. Necaise, 991 So. 2d 615 (Miss. Ct. App. 2007) 3 for the premise
that, under current Mississippi law, nurses can offer opinions on proximate cause. The
decedent in Sacks was being treated for lung cancer with a highly toxic drug named Taxol.
Id. at 618. The treatment was administered via intravenous therapy by a nurse. The second
treatment resulted in pain, swelling, and discoloration to the arm that was being infused – the
3 This Court first considered this case on the plaintiff’s appeal of the trial court’s dismissal of the lawsuit, and we reversed the trial court’s judgment of dismissal and remanded this case to the trial court for further proceedings. Necaise v. Sacks, 841 So. 2d 1098, 1107 (Miss. 2003). On remand, the trial court entered judgment for the plaintiff and the defendants appealed, which resulted in the 2007 decision of the Court of Appeals. This Court granted a petition for writ of certiorari on July 17, 2008. On the Court's own motion, the petition was found to be improvidently granted and was summarily dismissed. See Sacks v. Necaise, 987 So. 2d 451 (Miss. 2008).
11 subsequent damage to the arm was a third-degree chemical burn. Id. at 623. The plaintiff’s
theory was that the nursing staff had breached the standard of care by continuing to
administer the drug over the course of three hours, despite having been alerted to the adverse
reaction, i.e., swelling. Id. at 620. The defense’s theory of the case was that the damage to
the patient’s arm was a result of a hypersensitivity to the drug, not negligent care. Id. at 621.
The trial court allowed the nursing expert to dispute the theory of the defense expert, a
physician, by testifying that the medical literature stated that tissue damage can be caused
by the leaking of Taxol from the vein into the surrounding tissue, and that patients should be
monitored continuously during administration. Id. at 623. The Court of Appeals rejected the
defendants’ argument on appeal that this testimony was outside the scope of nursing practice.
Id.
¶23. Sacks is easily distinguished from our case today inasmuch as the nursing expert in
Sacks offered testimony on the validity of the defense’s hypersensitive-reaction theory – an
opinion based on the witness’s review of the prevailing medical literature, not on the expert’s
own diagnostic impression. Id. at 623. Moreover, the Court of Appeals noted in Sacks that
the expert nurse was not designated to testify as to the causation of the plaintiff’s injury, but
she was called to testify as to whether the intravenous administration of the drug was done
correctly. Id. at 622. The plaintiff’s attorney, in a motion hearing, made clear that any theory
of causation would be left to the testimony of Dr. Sacks – not the expert nurse. Id.
Therefore, we do not find the substance of the testimony by Nurse Keller in today’s case to
12 be analogous to that of the nursing expert in Sacks, and we do not find that the Sacks holding
can be read to allow nurses to testify as to medical causation.
¶24. Accordingly, because Vaughn failed to establish the requisite element of proximate
cause, Baptist was entitled to summary judgment as a matter of law.
B. Whether Vaughn’s children should have been allowed to offer lay testimony as to proximate cause.
¶25. Vaughn argues that her adult children, who attended her bedside during her
hospitalizations, can attest to the fact that the nurses deviated from the standard of nursing
care during the course of Vaughn’s treatment at Baptist. Vaughn argues that the signs and
symptoms of infection exhibited from October 24, 2005, to November 2, 2005, are a matter
of common sense and practical experience, such that her children should be allowed to
testify under the layman’s exception. Vaughn cites testimony by her children regarding the
marked changes in the appearance of her wounds, as well as the contamination of the wounds
from urine and feces. Vaughn’s children offered further testimony as to the deviation in the
nursing standard of care, including failure to properly dress and clean wounds and failure to
keep Vaughn’s room in sanitary condition.
¶26. As previously stated, a medical expert is not necessary in instances in which a layman
can observe and understand the negligence as a matter of common sense and practical
experience. Gatlin v. Methodist Med. Ctr., 772 So. 2d 1023, 1026 (Miss. 2000) (citing
Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997)). This Court has applied the layman’s
exception in cases involving foreign objects left inside patients or where patients were given
13 the wrong medication. Smith v. Gilmore Mem’l Hosp., Inc., 952 So. 2d 177, 181 (Miss.
2007) (citing Dailey v. Methodist Med. Ctr., 790 So. 2d 903 (Miss. 2001); Coleman v.
Rice,706 So. 2d 696, 698 (Miss. 1997)). However, diagnosing symptoms has been explicitly
held by this Court to be outside of the realm of a lay person and an activity that requires a
medical expert. Id.
¶27. Accordingly, Vaughn’s argument that lay-witness testimony can establish the element
of proximate cause is without merit. A lay witness cannot render an opinion as to whether
the symptoms exhibited by Vaughn were associated with infection.
II. WHETHER THE TRIAL COURT ERRED IN STRIKING VAUGHN’S EXPERT WITNESS, CRYSTAL KELLER, R.N.
¶28. Mississippi Rule of Evidence 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The trial judge assumes the critical role as a gatekeeper in assessing the value of the
testimony. Webb v. Braswell, 930 So. 2d 387, 397 (Miss. 2006) (citing Miss. Transp.
Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003)). When reviewing the trial court’s
decision to admit or exclude evidence, we are bound by an abuse-of-discretion standard of
review. Id. at 396-97 (citing McLemore, 863 So. 2d at 34). “Unless we can safely say that
the trial court abused its judicial discretion in allowing or disallowing evidence so as to
14 prejudice a party in a civil case, or the accused in a criminal case, we will affirm the trial
court's ruling.” Jones v. State, 918 So. 2d 1220, 1223 (Miss. 2005) (citing McGowen v.
State, 859 So. 2d 320, 328 (Miss. 2003)).
¶29. Mississippi has adopted the Daubert standard for the admission of expert testimony.
McLemore, 863 So. 2d at 35 (Miss. 2003) (citing Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (as modified in Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). Factors used in a
Daubert analysis include “whether the theory or technique can be and has been tested;
whether it has been subjected to peer review and publication; whether, in respect to a
particular technique, there is a high known or potential rate of error; whether there are
standards controlling the technique’s operation; and whether the theory or technique enjoys
general acceptance within a relevant scientific community.” McLemore, 863 So. 2d at 37.
¶30. According to Nurse Keller’s affidavit, her testimony was expected to be as follows
regarding the required elements of standard care and breach of that standard of care:
The nursing staff at Baptist Hospital deviated from the standard of care in their treatment and care of Paula Vaughn in the following manners: (1) failure to adequately assess and reassess; (2) failure to notify the physician of the change in patient’s status; (3) failure to properly document the changes/progression of the wounds; (4) failure to recognize signs and symptoms of infection; (5) failure to follow physician’s orders; (6) failure to change dressings as ordered; (7) failure to properly clean wounds; (8) failure to prevent contamination of wounds; (9) failure to provide adequate nursing care; (10) failure to provide adequate wound care; (11) failure to timely request wound care evaluation and consultations; (12) failure to follow facility’s own policies and procedures; (13) failure to [adequately] document; (14) failure to follow the nursing process.
15 ¶31. Based on the record before this Court, it is clear that Nurse Keller possessed the
requisite knowledge, skill, experience, training, and education to be qualified as an expert
in the field of nursing and was qualified to testify concerning the standard of care and any
deviations on the part of Baptist nursing staff from that standard of care. In Richardson v.
Methodist Hospital of Hattiesburg, Inc., 807 So. 2d 1244 (Miss. 2002), this Court stated:
“The fact that Keller is not a physician does not bar her right to testify concerning the
standard of care for the nursing staff, but more appropriately may affect the weight of her
testimony, which is an issue for the trier of fact.” Id. at 1248.
¶32. Inasmuch as we have held that Keller could not testify as to medical causation, the
trial court did not abuse its discretion in not allowing testimony from Keller that the negligent
acts of Baptist nurses proximately caused Vaughn’s staph infection. While the trial court did
err in barring Keller’s testimony outright and striking the portion of the affidavit regarding
the elements of standard of care and deviations from the nursing standard of care, this
assignment of error is moot, given that we have held summary judgment in this case was
properly granted.
III. WHETHER THE TRIAL COURT ERRED IN DENYING VAUGHN’S MOTION TO AMEND RULINGS OF THE COURT.
¶33. Vaughn filed a Motion to Amend Rulings of the Court on April 22, 2008. In this
motion, Vaughn made the alternative argument that, should the trial court strike Nurse
Keller, it should grant Vaughn more time to offer a second expert. Vaughn argued that the
16 expense of an appeal and the interest of accommodating a fair and impartial trial supported
her motion for more time to procure an expert who could opine as to proximate cause.
¶34. Baptist Hospital, in its response to Vaughn’s motion, argued that Vaughn had not met
the requirements of Mississippi Rule of Civil Procedure 56(f) in that Vaughn had failed to
articulate justification for failure to designate a legally sufficient expert. Baptist points to the
fact that its motion for summary judgment was filed after one-and-one-half years of
discovery, including amended scheduling orders and extensions of time to designate expert
witnesses; thus, according to Baptist, Vaughn had sufficient time to develop requisite expert
testimony but failed to do so. Based on the grounds and arguments set forth in this response,
the trial court ruled that Vaughn’s motion was not well-taken and declined to grant Vaughn
additional time to find another expert.
¶35. Mississippi Rule of Civil Procedure 56(f) states:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.
The decision to grant additional time for discovery in lieu of summary judgment is within the
sound discretion of the trial judge and will not be reversed by this Court unless the decision
can be characterized as an abuse of discretion. Miss. Ins. Guar. Ass'n v. MS Cas. Ins. Co.,
947 So. 2d 865, 876 (Miss. 2006) (citing Marx v. Truck Renting & Leasing Assocs., 520 So.
2d 1333, 1344 (Miss. 1987); Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir. 1986)).
This Court has stated that in order to reap the benefit of Rule 56(f):
17 [T]he party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate “how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.” United States v. Little Al, 712 F.2d 133, 135 (5th Cir. 1983), [citing Securities & Exchange Commission v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980)]. The party opposing the motion for summary judgment may not rely on vague assertions that discovery will produce needed, but unspecified, facts particularly where there was ample time and opportunity for discovery. Securities & Exchange Commission v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980).
Marx v. Truck Renting and Leasing Ass'n Inc., 520 So. 2d 1333, 1344 (Miss. 1987).
¶36. Vaughn’s request for more time under Mississippi Rule of Civil Procedure 56(f)
contained only “vague assertions” that further discovery would enable her to survive
summary judgment. We agree that a period of one-and-one-half years was more than ample
time for Vaughn to obtain expert testimony in an effort to avoid a grant of summary
judgment against her. Therefore, we cannot find that the trial court abused its discretion in
denying Vaughn more time to procure an additional expert.
CONCLUSION
¶37. Vaughn did not designate an expert qualified to opine as to whether any negligent acts
on behalf of the Baptist nursing staff proximately caused Vaughn’s injuries. Therefore,
because Vaughn failed to establish a prime facie case of negligence, summary judgment was
properly granted to Baptist as a matter of law. Moreover, while Vaughn’s expert nurse was
qualified to opine on the proper standard of care for nurses and whether Baptist staff deviated
from that proper standard of care, she was not qualified to testify as to diagnostic impressions
or the cause of Vaughn’s injuries, because nurses are not qualified to testify as to medical
18 causation. However, having found that summary judgment was properly granted, the trial
court’s error in striking Nurse Keller as an expert is not dispositive in this case. Finally, we
find no abuse of discretion by the trial court in refusing to grant Vaughn more time to obtain
an expert, given that Vaughn’s request under Mississippi Rule of Civil Procedure 56(f) came
more than one-and-one-half years after discovery closed and contained only “vague
assertions” that further discovery would result in enabling Vaughn to survive summary
judgment.
¶38. For these reasons, the final judgment of dismissal entered by the Circuit Court for the
First Judicial District of Hinds County in favor of Mississippi Baptist Medical Center and
against Paula Lee Vaughn is affirmed.
¶39. AFFIRMED.
DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. WALLER, C.J., NOT PARTICIPATING.
KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶40. I respectfully disagree with the majority’s holding that, without exception, “nurses
cannot testify as to medical causation.” Maj. Op. at ¶ 20. It likely is true that some nurses
may not possess the requisite expertise to recognize the cause-and-effect relationship
between conditions in a patient’s environment, or particular kinds of harm that a patient may
have experienced, and resulting diseases or maladies that occur in consequence of those
conditions or events. However, the issue of whether a particular nurse, by virtue of his or her
19 knowledge, skill, experience, training or education, possesses such ability is better
determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial
pontification to the effect that no nurse in the world will ever be allowed to testify as to
medical causation in any Mississippi court case. As is true of any other profession, the
education, experience and understanding of nurses span a broad spectrum. We should not
enunciate a hard and fast rule that permanently forecloses the possibility of any nurse’s being
qualified to give expert testimony on medical causation in any and all cases that may arise
in the future.
¶41. In this case, the plaintiff’s pre-existing conditions, combined with multiple visits to
several medical facilities, make it difficult to identify the proximate cause of Ms. Vaughn’s
staph infection. Therefore, I agree with the majority that, under the facts of this case, the trial
court did not abuse its discretion in determining that Nurse Keller was not in a position to
opine that the staph infection was proximately caused by the deficient care of Baptist’s
nursing staff.
¶42. However, although Nurse Keller could not testify that the staph infection was
proximately caused by the treatment the plaintiff received during her first hospitalization at
Baptist, she nonetheless is qualified to testify as an expert that, in her opinion, the nursing
care given Ms. Vaughn during her first stay at Baptist breached the standard of care of
nursing. The majority acknowledges such in stating,
. . . it is clear that Nurse Keller possessed the requisite knowledge, skill, experience, training, and education to be qualified as an expert in the field of
20 nursing and was qualified to testify concerning the standard of care and any deviations on the part of Baptist nursing staff from that standard of care.
Maj. Op. at ¶ 31. Nevertheless, the majority prevents Nurse Keller’s testifying that the care
provided the plaintiff fell below the standard of care of nursing, a ruling that is contrary to
this Court’s decision in Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So. 2d
1244, 1245 (Miss. 2002).
¶43. In Richardson, the daughter of the decedent filed a personal-injury and wrongful-
death action against Methodist Hospital of Hattiesburg, alleging that the defendant hospital
“caused or contributed to her mother’s pain, suffering, and death by providing sub-standard
nursing.” Id. The plaintiff engaged Crystal D. Keller, the same expert under consideration
here, who testified “that the deviations from the requisite standard of nursing care led to [the
decedent’s] suffering and subsequent death.” Id. On appeal, this Court held that, although
Nurse Keller was not qualified to testify to highly complex medical processes, she was
indeed qualified to testify as an expert in the field of nursing. Id, at 1247-48. Specifically,
the Court stated:
We find the trial court’s ruling was overly restrictive in not allowing Keller to testify concerning the appropriate standard of nursing care and the deviations from that standard. There is sufficient proffered evidence from Keller for a jury to consider whether the inadequate nursing care resulted in worsening [the plaintiff’s] pain and suffering.
Id. at 1246 (emphasis added). The Court noted that because “there [was] a genuine issue of
fact concerning whether [the decedent] suffered more physically and incurred more expense
21 from the failures of the nursing staff . . . the circuit court improperly granted summary
judgment as to pain and suffering.” Id. at 1247 (emphasis added). The same can be said here.
¶44. Ms. Vaughn has presented ample proof to create a genuine issue of fact as to whether
her suffering and financial costs were exacerbated by deficient nursing care at Baptist,
including whether leaving Ms. Vaughn to soak in her own urine and feces for lengthy periods
of time caused her pain and suffering, and whether Baptist’s failure to monitor, clean, and
dress Ms. Vaughn’s surgical wounds contributed to her pain and suffering. Of course, the
determination of whether the alleged breach of the nursing standard of care, as opined by
Nurse Keller, proximately caused the pain and suffering, depression, mental anguish,
emotional distress, and loss of dignity remains solely in the discretion of the jury.
¶45. Because Nurse Keller was qualified to opine as an expert that the treatment received
by Ms. Vaughn constituted a breach of the applicable standard of care, and because Ms.
Vaughn presented genuine issues of material fact as to whether such breach, if any, caused
her pain and suffering, depression, mental anguish, emotional distress, and loss of dignity,
the trial court erred in striking all of Nurse Keller’s testimony and granting summary
judgment for those causes of action. Therefore, I would reverse the trial court’s granting of
summary judgment on those claims and would remand for a trial on the merits.
GRAVES, P.J., JOINS THIS OPINION.