IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-CA-00483-SCT
TAMMY WINTERS AND DAVID WINTERS
v.
BENNIE B. WRIGHT, JR., M.D., CLEVELAND CLINIC, P.A., AND BOLIVAR COUNTY MEDICAL CENTER
DATE OF JUDGMENT: 1/30/1999 TRIAL JUDGE: HON. KENNETH L. THOMAS COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: ROBERT W. SMITH JUDY M. GUICE ATTORNEYS FOR APPELLEES: P. SCOTT PHILLIPS L. CARL HAGWOOD LEE DAVIS THAMES, JR. R. E. PARKER, JR. NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 09/11/2003 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
SMITH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Tammy Winters ("Tammy") and her husband, David Winters ("David"), filed a complaint
in Bolivar County Circuit Court against Dr. Bennie B. Wright, Jr. ("Wright") and his employer,
Cleveland Clinic, P.A., Bolivar County Hospital ("BCH"), and Cincinnati Sub-Zero Products,
Inc. ("Sub-Zero") on December 8, 1995. Tammy's claim arose from an injury to her buttocks
and thighs that she claims was caused by a Sub-Zero heating blanket utilized during surgery
performed on her by Wright at BCH. Prior to trial, plaintiffs settled their claim against Sub- Zero. Trial with the remaining defendants commenced on January 11, 1999, and ended on
January 20, 1999. The jury found in favor of all three remaining defendants, and judgment was
entered on February 1, 1999. On February 19, 1999, the trial judge denied the plaintiffs’
motion for new trial and judgment notwithstanding the verdict.
FACTS
¶2. Tammy was out with two friends shooting at cans on the bridge over the Quiver River
in Sunflower County late on the evening of December 12, 1994. Somehow, while reloading
her .380 caliber pistol, Tammy accidentally shot herself in the abdomen. Her friends managed
to load her into a vehicle and get her to the North Sunflower County Hospital in Ruleville,
Mississippi. The facility was not equipped to treat Tammy, and thus an ambulance took her
from there to BCH. Upon arrival at BCH, Tammy was taken to the emergency room. Wright,
who was not on duty that night, had been called in by the emergency room physician to care for
Tammy. Upon Wright's arrival, Tammy had coded, but had been resuscitated by the emergency
room physician. Once she had been resuscitated, Wright ordered the nurses to give her 4,000
cc's of fluid, which is four times the amount normally given to a patient in eight hours. Further,
in order to keep Tammy alive, he ordered that she be given uncross-matched blood.
¶3. The bullet had entered her left side beneath her ribs and exited out the lower part of her
back causing multiple injuries. Wright then accompanied Tammy to the operating room. Once
there, he left to change into scrubs and prep for surgery. While he was out, staff moved Tammy
from the gurney to the operating table. Glenda Morton, an operating technician that evening,
testified that when Tammy was transferred from the gurney to the table that she noted that her
backside was blue. She asked Wright about this, and he informed her that Tammy was bleeding
2 out and the blood was pooling in her back. Under Tammy, on the operating table, was a sterile
operating sheet. Under that, was the Blanketrol II blanket manufactured by Sub-Zero. This
blanket is attached to a unit which circulates water throughout the blanket. Water is heated or
cooled and pumped from the unit to the blanket. The person operating the machine sets the
desired temperature of the patient, and the machine pumps the water through the blanket
accordingly to regulate the patient's temperature. The unit stands thirty-six inches tall and is
seventeen inches wide.
¶4. Christy Tolbert, the circulating nurse on the evening of Tammy's surgery, testified that
she turned on the Blanketrol unit that evening and that it was set at 98.6 degrees Fahrenheit.
She also testified that she checked the temperature periodically throughout the surgery and that
she never saw it go above the original set point. Upon cross-examination, Tolbert did note that
during her deposition she had stated that she did not check the machine every twenty minutes,
as suggested by the unit's manual. Once Wright returned to the operating room, Tammy was on
the operating table, and the nurse anesthetist, Paul Rayfield, had hooked up his monitors and
put Tammy to sleep. Wright then draped Tammy for surgery and began the operation. Wright
testified that when he made the initial incision blood spouted from Tammy's abdomen and he
had to clamp her aorta to stop the blood loss. This clamping cut off the blood supply to the
stomach, liver, small intestine, pancreas, kidneys, uterus, legs, buttocks and spleen. Once some
of the blood was cleared out of her abdominal cavity, Wright moved the clamp lower to get
blood to her vital organs, but it was still cut off to the lower portion of her body. Following the
operation, two operating technicians and a nurse noticed the imprint of the blanket on her
backside and that her buttocks were discolored. Those personnel that had physical contact with
3 Tammy prior to, during and following surgery all testified that her skin was not warm to the
touch. Further, the nurse anesthetist testified that he monitored her temperature during surgery
and that it was never above normal.
¶5. Due to problems Tammy suffered to her lower extremities due to insufficient blood
circulation, Wright consulted with Dr. Rodney Frothingham, a neurosurgeon, and Dr. Hugh
Gamble, a vascular surgeon. After Tammy was transferred to Delta Regional Medical Center
in Greenville, Mississippi, Wright spoke with Gamble to tell him what problems Tammy might
have. Gamble mentioned that there was something wrong with Tammy's buttocks. In Wright's
opinion the injuries to Tammy's buttocks are the result of the constriction of blood flow back
to her buttocks. When her aorta was clamped, blood flow to her buttocks was cut off. He
testified that when this occurs, oxygen does not get to the tissue and the tissue dies. He further
testified that this is why Tammy lost some of her toes. The staff and physicians that treated
Tammy's injury to her buttocks referred to the injury as a burn. In early treatment notes,
however, it is clear that no one was certain it was a burn. Dr. Robert Love, a plastic surgeon
at Delta Regional Medical Center, noted the following in regard to Tammy's injury, "I cannot
confirm or deny the etiology of this lesion. It certainly has the appearance of a burn, although
it is hyperemic." According to Wright's testimony, hyperemic means that it was full of blood.
¶6. Tammy went through multiple skin grafts and treatment at various hospitals due to this
injury. Tammy and David brought suit against Wright, Cleveland Clinic, BCH, and Sub-Zero,
claiming they were responsible for her injuries and that she had been burned by the heating
blanket utilized during her surgery. Following a jury verdict for the defendants, entry of
4 judgment in accordance with that verdict and a denial of plaintiffs’ motion for a new trial or a
judgment notwithstanding the verdict, Tammy and David appeal to this Court.
STANDARD OF REVIEW
¶7. Our standard for review is de novo in passing on questions of law. Miss. Farm Bureau
Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss. 1996); Seymour v. Brunswick Corp., 655
So.2d 892, 895 (Miss. 1995). In reviewing the denial of a judgment notwithstanding the
verdict, peremptory instruction, and directed verdict,
This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.
Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss. 1997). This Court will reverse
a trial court's denial of a request for new trial only when the denial amounts to an abuse of
discretion. Id. (citing Shields v. Easterling, 676 So.2d 293, 298 (Miss. 1996)).
The standard of review for challenges to jury instructions is as follows: Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Austin v. State, 784 So.2d 186, 192 (Miss. 2001) (quoting Humphrey v. State, 759 So.2d 368,
380 (Miss. 2000)).
5 ¶8. This Court will consider a trial judge's decision to admit evidence and whether an expert
witness is qualified to testify under an abuse of discretion standard. See Thompson Mach.
Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss. 1997); May v. State, 524 So.2d 957,
963 (Miss. 1988).
DISCUSSION
¶9. The plaintiffs raise multiple issues on appeal. First, they argue that the trial judge erred
in denying their request for a res ipsa loquitur instruction. Second, they contend that the trial
judge erred in refusing to allow their expert, Dr. Robert Tucker, to testify regarding the
standard of care in the use of the heating blanket. Third, they allege the trial court erred by
giving conflicting instructions regarding Wright's vicarious liability for actions of the
operating room personnel. Fourth, they maintain that it was error for the trial judge to refuse
their request for a peremptory instruction regarding the heating blanket. Fifth, they assert
error by the trial court in allowing the defendants to pose leading questions to witnesses called
by one another. Finally, they charge that it was error for the trial judge to exclude testimony
regarding Wright's control of the operating room.
¶10. BCH raises two issues on cross-appeal. First, it alleges that the trial judge erred in not
extending the scheduling order following a change in counsel for BCH after its insurer
declared bankruptcy. Second, BCH contends that the trial judge erred in granting a motion in
limine to exclude evidence of Tammy's consumption of alcohol the night of her injury.
I. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A RES IPSA LOQUITUR JURY INSTRUCTION.
¶11. Plaintiffs' requested jury instruction P-3 states:
6 The Court instructs the jury that under certain circumstances an accident speaks for itself and a presumption of negligence arises. In such cases, the plaintiffs need not allege or prove the particular act of negligence itself which caused the injury but the burden is on the defendants to show an absence of negligence.
The conditions which must occur before this presumption of negligence arises are as follows:
1. the event must be one that would not normally occur absent someone's negligence;
2. the event must be caused by an agent or instrumentality within the defendant or defendants exclusive control; and,
3. the plaintiff must not have voluntarily contributed to the event.
This presumption of negligence permits but does not compel the jury to find for the plaintiff.
Accordingly, if you find from a preponderance of the evidence that the above factors are present then there is a presumption of negligence in this case. If you further find that the Defendant or Defendants have not met their burden to show an absence of negligence and that the negligence proximately caused injury to the Plaintiff then you must find for the Plaintiff.
Plaintiffs argue that the trial judge erred in denying this instruction.
¶12. Res ipsa loquitur is a rule of evidence that allows negligence to be inferred in certain
fact situations. Waddle v. Sutherland, 156 Miss. 540, 549-50, 126 So. 201, 203 (1930). The
doctrine of res ipsa loquitur is applicable to medical malpractice cases. Id. This Court has
stated that the "general rule 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, 698 (Miss. 1997) (quoting Erby v. North Miss. Med. Ctr., 654 So. 2d 495, 500
(Miss. 1995)). As this Court has noted,
7 A jury may not presume negligence because of the untoward results of surgery. Ross v. Hodges, 234 So.2d 905, 909 (Miss.1970). Rather, the use of res ipsa loquitur should be cautiously applied. J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779 (1935). In Sanders v. Smith, 200 Miss. 551, 561, 27 So.2d 889, 893 (1946), the Court outlined its use:
The real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such operations, which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.
See also Latham v. Hayes, 495 So.2d 453, 459 (Miss. 1986); DeLaughter v. Womack, 250
Miss. 190, 211, 164 So.2d 762, 771 (1964).
¶13. With these principles in mind, the doctrine of res ipsa loquitur requires three things.
First, the instrumentality causing the injury must be under the control and management of the
defendant(s). Coleman, 706 So. 2d at 698. Second, the injury must be such that in the
ordinary course of things it would not occur if those in control of the instrumentality used
proper care. Id. Finally, the injury must not be due to any voluntary act by the plaintiff. Id.
¶14. Wright makes two arguments as to why res ipsa loquitur should not apply in the instant
case. First, he contends that Tammy did not prove the blanket caused her injury, and thus she
was not entitled to a res ipsa loquitur instruction. Alternatively, he argues that Tammy failed
to prove that he had exclusive control over the blanket. BCH argues that a res ipsa loquitur
instruction was inappropriate because an alternate theory for Tammy's injuries was offered.
BCH argues further that even if a res ipsa loquitur instruction were appropriate, it is not
reversible error for the trial judge to have denied it. BCH argues that Instruction P-6 cured any
error. Instruction P-6 states in part:
8 [BCH]... allowed Plaintiff to be burned while she was unconscious and totally dependent on their care. If you find from a preponderance of the evidence that [BCH] was negligent in rendering or failing to care to the Plaintiff and if you should further find that such negligence was a proximate contributing cause to Plaintiff's injuries, then it is your sworn duty to find in favor of the Plaintiff and against [BCH].
¶15. We find that Tammy was not entitled to a res ipsa loquitur instruction. This Court has
noted the limits of the doctrine of res ipsa loquitur:
That doctrine (1) has no operation to excuse or dispense with definite proof, by the plaintiff, of material facts which are tangible and are capable of direct and specific evidence, as much within the power of plaintiff to produce as of the defendant; and (2) it is available to establish negligence on the part of the defendant only when the accident is such that, according to ordinary human experience, it could not have happened without such negligence; from which it follows that the doctrine does not apply when, upon the whole case, there has been specific proof which discloses some reasonable explanation for the happening other than the negligence charged against the defendant.
Yazoo & M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274, 277 (1938). While it is true that
Tammy was asleep during surgery and has no ability to state conclusively what occurred while
she was unconscious, she is capable of having an expert testify as to whether the injury on her
backside was the result of a burn or dead tissue, and in fact, Tammy offered such expert
testimony that the tissue was burned due to the heating pad. Alternatively, Wright testified as
to his contention that the injury suffered by Tammy was dead tissue resulting from loss of
blood circulation. When both sides to a dispute have put forth evidence, we find that the issue
is a fact question for the jury, and thus a res ipsa loquitur instruction is inappropriate.
¶16. This issue is quite similar to the question presented to this Court in DeLaughter v.
Womack, 250 Miss. 190, 164 So. 2d 762 (1964) overruled on other grounds by Hall v.
Hilbun, 466 So.2d 856 (Miss. 1985). In DeLaughter, a young boy had been given a penicillin
9 shot by a nurse, as instructed by the doctor. 250 Miss. at 197, 164 So. 2d at 764. The child
reported back with various problems over the next two days, and the doctors were unable to
definitively diagnose the problem. Ultimately, the boy lost his toes and skin off of his foot and
lower leg. Id. The boy filed suit alleging that the nurse was negligent in giving the injection,
resulting in gangrene. Id. at 200, 164 So. 2d at 765. He alleged further that the doctors had
been negligent in diagnosing the problem. Id. The doctors and the nurse contended rather that
the boy suffered from an unusual allergic reaction to the penicillin, which resulted in the loss
of his toes and part of his foot. Id. at 201, 164 So. 2d at 766. Ultimately, in considering the
issue of res ipsa loquitur, this Court concluded:
In the case now before us, all of the facts have been presented in evidence. The plaintiff made out a prima facie case of negligence. The cause of the injury is shown to have been an injection of penicillin. The results and circumstances are such as would warrant a jury in finding that the penicillin injection was negligently administered intravenously. On the other hand the defendants have shown that the nurse was competent and skilled, and the child was suffering with a peculiar allergy. Both questions are for the jury's determination...All the facts are before the jury. There is no room for presumptions. All of the inferences are swallowed up in the known facts and circumstances, making up the issue for the determination of the jury. The doctrine of res ipsa loquitur should be applied cautiously, and in this case we have reached the conclusion that the doctrine should not have been applied. There is no necessity to apply the doctrine in the instant case, because the plaintiff made out a prima facie case of negligence, which, in any case, required the defendants to go forward with the evidence. 38 Am.Jur., Negligence, § 289, p. 981. The doctrine does not apply where there is direct evidence as to the precise cause. 38 Am.Jur. § 296, p. 992, supra.
250 Miss. at 212, 164 So. 2d at 771(emphasis added).
¶17. The same is true here. The plaintiffs put forth evidence that the injury to Tammy’s leg
was a burn and that a heating pad was used during her surgery. Wright and BCH put forth
evidence that the injury to her backside was not a burn. The issue then became one of fact for
10 the jury to determine. Thus, we hold that the trial judge did not err in denying plaintiffs’
request for a res ipsa loquitur instruction.
II. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO ALLOW TESTIMONY BY PLAINTIFFS’ EXPERT THAT DEFENDANTS BREACHED THE STANDARD OF CARE PERTAINING TO THE USE OF THE HEATING BLANKET.
¶18. Plaintiffs contend that the trial judge erred by not allowing their expert, Dr. Robert
Tucker, to testify regarding the standard of care for using the heating blanket. Wright and BCH
both argue that Tucker was not qualified to testify as to the standard of care. BCH also
contends that Tucker was allowed to testify in regard to the standard of care as applied to the
hospital and its nurses, and thus there was no error in regard to BCH. BCH argues further that
if there was any error, this error was harmless as plaintiffs were able to present their theory
of the case through Tucker despite the fact that he was limited in regard to his testimony
regarding the standard of care in using the heating blanket.
¶19. Tucker was allowed to testify as to the standard of care regarding the hospital.
Specifically, he was asked "Do you have an opinion in this case as to whether or not the fact
that a hospital allowed a prescription medical device to be used during surgery without a
doctor's order violated the standard of care?" In response he stated that it did violate the
standard of care. The trial court, however, noted that it would not allow Tucker to testify
regarding the standard of care for nurses or physicians in the use of the machine. The trial
judge found, rather, that Tucker could only testify as to whether instructions in the manual were
followed. However, later Tucker was asked whether the standard nursing procedures found in
the Blanketrol manual were followed, and he replied negatively.
11 ¶20. The trial judge recognized that Tucker was an expert in medicine, pathology, biomedical
engineering and with regard to the Blanketrol II unit. Tucker testified that the majority of his
medical research centered around burns, pressure necrosis, chemical burns, and electrical
burns. He stated that Tammy's injuries were the result of a thermal burn, and after reviewing
all of the materials he saw no source of that burn other than the heating blanket which she was
on during surgery. Tucker testified about and demonstrated his familiarity with the Blanketrol
II unit. He further testified that he was familiar with the Food and Drug Administration's
requirements for medical devices and the use of such devices in surgery. Tucker stated that
instruction manuals define how to use the equipment properly, specifically defining the
minimum educational level and understanding a person must have to operate the equipment.
He then explicitly stated that the manual defines the standard of care for the biomedical
engineer who cares for the machine and the standard of care for the nursing staff and
physicians.
¶21. Tucker also testified as to BCH's policy that the Blanketrol II unit could be used in any
surgical procedure that requires mechanical means to produce normal body temperature that
is deemed necessary by the surgeon, the anesthetists, and/or the registered nurse. The policy
further states that those operating the device should follow all operating, safety and cleaning
procedures contained in the unit's instruction manual. Tucker noted that the manual requires
that a physician set the temperature on the device. In spite of the trial judge's earlier ruling,
Tucker in fact testified that neither the physician, nor the nurses, monitored Tammy's
temperature in the manner instructed by the manual. Tucker stated that the manual contained
a statement that those operating the machine should read and understand the instructions in the
12 manual and that the manual should be reviewed semiannually. Tucker testified that the manual
warns that if the unit is not used properly then there is a risk of injury. He specifically noted
that Tammy suffered from thermal burns and that these burns would not have occurred if the
individuals in control of the Blanketrol II unit had exercised reasonable care. He stated that
he believed someone had either set the unit at a higher temperature than 98.6 degrees or that
it was accidentally bumped and went higher. Tucker was very clear that in his opinion the
blanket was the only device in the operating room that could have caused the burns suffered by
Tammy. He testified that the operating room staff, including the doctor, nurses, and the
certified nurse anesthetist (CRNA) had control of the blanket. Further, after noting that the
nurses, CRNA and Wright did not comply with the manual, Tucker stated that if they had done
so Tammy's burns would not have occurred.
¶22. As noted, Tucker did testify that he was familiar with the machine and that the
instruction manual required a physician to prescribe the use and to dictate the temperature
setting. Thus, in spite of the trial judge's initial ruling, the plaintiffs were able to get their
theory of the case as to the cause of her injuries before the jury. As Tucker was allowed to
testify to this and to the fact that this procedure was not followed on the night of Tammy's
surgery, we find that the error was harmless. The plaintiffs were allowed to present their
theory of the case through Tucker, and thus the fact that he was not allowed to utter the specific
words "Wright and the nurses breached a standard of care," does not constitute reversible error.
This issue is without merit.
III. WHETHER INSTRUCTIONS GRANTED BY THE COURT ON THE POTENTIAL VICARIOUS LIABILITY OF WRIGHT WERE HOPELESSLY IN CONFLICT.
13 ¶23. Plaintiffs argue that Instruction P-16 and DW-13A are in conflict and that granting both
instructions was reversible error. Instruction P-16 states:
The Court instructs the jury that in addition to his own negligence, Plaintiffs have alleged that Defendant Wright is responsible for Plaintiff's injuries under a doctrine referred to as vicarious liability. The theory behind this doctrine is that a surgeon has a non-delegable duty to ensure that proper care is given to an unconscious patient in an operating room under the surgeon's control. Under this doctrine, Defendant Wright may be held legally responsible for the negligence of nurses who were working under his direction and control or who he had a right to control.
This doctrine is applicable even if Defendant Wright himself was not personally negligent.
If you find from a preponderance of the evidence that other members of the operating room team were negligent and that these negligent persons were acting under the direction and control of Defendant Wright, and if you further find that such negligence proximately caused injuries to Tammy Winters, then it is your sworn duty to return a verdict against both [BCH] and Defendant Wright.
Instruction DW-13A states:
The Court instructs the jury that before you may hold Dr. Wright responsible for any alleged negligent act of the nurses or operating room technicians in the operating room at [BCH], you must find from a preponderance of the evidence that Dr. Wright knew or should have known of the alleged negligent acts and if you so find, Dr. Wright is vicariously liable for the alleged negligent acts. And if you do not so find, then Dr. Wright is not liable.
¶24. In applying Mississippi law, the Fifth Circuit stated that "[t]he law imposes liability on
a physician for the negligence of a nurse only if the nurse committed the negligent acts or
omissions pursuant to the direction and control of the physician." Hunnicutt v. Wright, 986
F.2d 119, 124 (5th Cir. 1993). The plaintiffs assert that the DW-13A inserts a knowledge
requirement, which is in conflict with P-16 and further that knowledge is not a prerequisite to
a finding of vicarious liability.
14 ¶25. We find that these instructions are not hopelessly in conflict. Instruction P-16
instructs the jury that Dr. Wright may be responsible for the negligence of nurses or
technicians "who were working under his direction and control or who he had a right to
control." Instruction DW-13A instructs that Dr. Wright may be responsible for such
negligence if "he knew or should have known" of such acts. This Court does not approve this
instruction, and the bar is cautioned against using such an instruction. However, these
instructions read together are not in actual conflict under the facts of this case, and we find no
error in giving this instruction. If Dr. Wright had directed the acts or had a right to do so, then
it follows that he knew or should have known about them.
¶26. Dr. Wright testified repeatedly that he was unaware that the blanket was on the table.
Further, operating room technicians and nurses testified that the heating blanket stayed on the
table in that particular operating room and that it was routinely used by the nurses without
direction by the physician. As the Fifth Circuit has stated, "[t]he routine acts of treatment
which an attending physician may reasonably assume may be performed in his absence by
nurses of a modern hospital as part of their usual and customary duties, and execution of which
does not require specialized medical knowledge, are merely administrative acts for which
negligence in their performance is imputable to the hospital." Hunnicutt, 986 F.2d at 123
(citing Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858, 861 (1961)). Thus,
there must be some connection be it actual or imputed knowledge of the negligent act by the
physician. We find this allegation of error to be without merit.
IV. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION ON THE ISSUE OF
15 THE USE OF A PRESCRIPTION MEDICAL DEVICE WITHOUT A PRESCRIPTION.
¶27. The plaintiffs requested the following peremptory instruction, P-4, regarding the
impropriety of the use of the heating blanket:
The Court instructs the jury that under certain circumstances negligence is conclusively presumed as a matter of law and cannot be rebutted.
In this case, a prescription medical device was used by hospital personnel without a doctor's order.
Such action is a violation of FDA rules and regulation and constitutes negligence as a matter of law.
If you find by a preponderance of the evidence that such negligence proximately caused the Plaintiff's injuries, then you must return a verdict for the Plaintiff and against Defendant [BCH].
The trial judge summarily refused this instruction. The plaintiffs argue that this was error.
Wright and BCH both contended at trial and now on appeal that the blanket is not a prescription
device, however, they have yet to put forth any proof of this contention. Rather, they have
continued to argue that the plaintiffs did not put forth any evidence beyond the Blanketrol II
instruction manual. They argue further that use of the blanket was a necessity, and thus it could
not have been negligence to use the blanket.
¶28. The manual states that "[t]he desired setpoint temperature should be set only as
prescribed and under the order of a physician." In the pre-trial statement pursuant to court
order, Sub-Zero stated that "[t]he Blanketrol is a prescription device to be used only under
order of a physician and used at a temperature ordered by a physician." Circulating Nurse
Tolbert admitted on cross-examination that she had read in the manual that the Blanketrol II
16 was "a prescription medical device" and that it should not be used "except with the order of a
physician." This Court has stated that in regard to prescription medicine
'[The package insert] is not conclusive evidence of standard or accepted practice in the use of the drug by physicians or surgeons, nor that a departure from such directions is negligent. But it is prima facie proof of a proper method of use, given by the maker, which must be presumed qualified to give directions for its use and warnings of any danger inherent therein.'
The prescribing physician can be permitted to rebut this implication and explain its deviation from the manufacturer's recommended use on dosage. The holding will shift the burden of persuasion to the physician to provide a sound reason for his deviating from the directions for its use, and will require corroborative evidence to determine whether the physician met or violated the appropriate standard.
Thompson v. Carter, 518 So. 2d 609, 613 (Miss. 1988) (quoting Julien v. Barker, 75 Idaho
413, 272 P.2d 718 (1954)). The plaintiffs argue that the manual is prima facie evidence that
the unit is a prescription device. They contend further that because Miss. Code Ann. § 73-25-
33 (Rev. 2000) defines the practice of medicine as prescribing such a device for cure or relief
of an injury and Miss. Code Ann. § 73-25-1 (Rev. 2000) requires one to obtain a license prior
to practicing medicine, it was negligence per se for the staff to have utilized the blanket
without the order of a physician.
¶29. Wright and the plaintiffs’ expert, Tucker, testified that the use of the heating blanket was
required because of Tammy’s low core temperature prior to surgery. Further, Wright testified
that the nurses were responsible for the unit. He also stated that the use of the blanket was an
absolute medical necessity under the circumstances and that it was the proper standard of care.
We find, however, that this testimony does not rise to the level of rebuttal as to the allegation
that the Blanketrol II unit is a prescription medical device. The jury found no liability as to
17 BCH or Wright. Thus, it would appear that the jury found either that her injury was not due to
the heating blanket or that it was not negligence to have used it. The denial of the instruction
was harmless, particularly considering the fact that the jury heard testimony that the device was
a prescription medical device. We find this allegation of error meritless, or at the most
harmless error.
V. WHETHER THE TRIAL JUDGE ERRED IN ALLOWING DEFENDANTS TO ASK LEADING QUESTIONS OF EACH OTHER'S WITNESSES.
¶30. The plaintiffs contend that the judge erroneously allowed BCH and Wright to ask one
another's witnesses leading questions. Leading questions were asked, examples of which are:
BCH counsel to Wright:
In fact, it would have been below the standard of care not to have used it [the Blanketrol unit] wouldn't it?
In fact, Dr. Wright, it was an absolute medical necessity to use this blanket on this patient this night under these circumstances, wasn't it?
Wright's counsel to Pam Williams (BCH witness):
Okay. So Tammy Winters had already gone to Ms. Guice down in Biloxi and threatened to sue the hospital when Marla talked to you; is that correct?
¶31. BCH and Wright contend that it was appropriate for them to ask leading questions as
they were cross-examining witnesses and they are not aligned parties as they have adverse
interests. Rule 611(c) of the Mississippi Rules of Evidence states that "[o]rdinarily, leading
questions should be permitted on cross-examination. When a party calls...an adverse party, or
18 a witness identified with an adverse party, interrogation may be by leading questions." This
Court has stated that "[i]t is within the trial judge's discretion to allow leading questions, and
unless there has been an abuse of discretion to the prejudice of the complaining party, it is not
reversible error." Jones v. State, 606 So. 2d 1051, 1059 (Miss. 1992).
¶32. The trial judge spent much time considering this issue. He ultimately determined that
there was sufficient adversity as to the theories of defense for each party to consider them
adverse, and thus he allowed them to ask leading questions of one another's witnesses.
Considering that one of Wright's theories of defense was that if the jury determined the blanket
was the cause of Tammy's injuries then the hospital was at fault, not him, we find that the trial
judge did not abuse his discretion. Thus, we find this allegation of error to be meritless.
VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW PLAINTIFFS' EXPERTS AND PARTICIPANTS IN THE OPERATION TO TESTIFY REGARDING WRIGHT'S CONTROL OVER THE OPERATING ROOM.
¶33. The plaintiffs assert that the trial judge erred in not allowing witnesses to state
affirmatively that Wright was in control of the operating room. BCH and Wright contend that
the conclusory statement plaintiffs wished to elicit from witnesses is a fact determination that
falls within the province of the jury. Both the Fifth Circuit in Hunnicutt, 986 F.2d at 122-23,
and this Court in Starcher v. Byrne, 687 So. 2d 737, 742 (Miss. 1997), recognized that
physicians may not have control over every happening in the operating room. Wright did
concede in his testimony that he was responsible for Tammy. Further, during cross-
examination of operating room technician, Pam Smith, the plaintiffs’ counsel elicited an
affirmative response to several questions regarding whether or not she would have followed
19 the doctor's orders in using the Blanketrol II unit. The trial judge also granted Instruction P-16,
discussed above. Thus, plaintiffs’ theory of the case in regard to Wright being responsible for
the operating room, and thus vicariously responsible for any injury to Tammy that might have
been caused by others in the operating room, was before the jury. We find that the issue of
control is an issue of fact that should have been decided by the jury. Thus, trial judge did not
err in precluding witnesses from providing a conclusion that lies more appropriately within the
province of the jury.
CROSS-APPEAL ISSUES
¶34. We find that there is no need to discuss the cross-appeal issues, as we affirm the
judgment below. The issues raised by BCH, however, are issues within the discretion of the
trial judge, and we conclude that the trial judge did not abuse his discretion in ruling the way
he did. First, as to the extension of a scheduling order, this case dragged on for quite a while,
and the judge had been quite lenient with extensions. While it is true that counsel changed, the
central party, BCH, never altered. Second, as to the issue of whether the judge improperly
excluded evidence of Tammy's ingesting alcohol on the evening of her injury, the judge found
that the evidence would be too prejudicial. Further, BCH only had testimony that she had been
drinking. It had no concrete testimony as to blood alcohol level. Thus, the trial judge was
correct in excluding this evidence, as any probative value is far outweighed by the prejudice
to the plaintiffs.
CONCLUSION
¶35. First, the trial judge did not err in denying the plaintiffs’ request for a res ipsa loquitur
instruction. Second, while we agree that Tucker should have been allowed to testify regarding
20 the standard of care as to the use of the heating blanket, we find this to be harmless error.
Third, the instructions regarding Wright's vicarious liability for actions of the operating room
personnel were not in conflict. Fourth, we find no error in the trial court's denial of the
plaintiffs’ request for a peremptory instruction regarding the heating blanket. Fifth, the
defendants were sufficiently opposed so that it was proper for them to ask leading questions
to witnesses called by one another. Finally, it was not error for the trial judge to exclude
testimony regarding Wright's control of the operating room. For the foregoing reasons, we
affirm the judgment below.
¶36. AFFIRMED.
WALLER, COBB, AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.; McRAE, P.J., JOINS IN PART. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
PITTMAN, CHIEF JUSTICE, DISSENTING:
¶37. I agree with the plurality's opinion that the trial court did not (1) err in denying the res
ipsa loquitur jury instruction, (2) err in refusing to allow the Winterses' expert to testify
regarding the standard of care of use of the heating blanket, (3) give conflicting jury
instructions, and (4) err in allowing defense counsel to pose leading questions to each other's
witnesses. I part company with the plurality where it concludes the trial court did not commit
error when it prevented witnesses from testifying regarding Wright's control of the operating
room. This was indeed error. Our rules of evidence are not meant to be as strictly construed
as the plurality opinion does today. I also think it was more than harmless error for the trial
21 court to refuse plaintiffs’' tendered peremptory instruction regarding the heating blanket.
These errors warrant reversal, therefore, I respectfully dissent. I would reverse the trial court's
judgment and remand for a new trial.
¶38. According to our rules of evidence, the presentation of evidence in our trial courts
embraces the opinions by experts as well as lay witnesses. M.R.E. 701 & 702. Where a
witness is in a position to observe facts from which he can formulate opinions, that witness's
opinion is relevant and admissible testimony if it is helpful to the trier of fact, even though it
may embrace an ultimate issue to be decided by the jury. M.R.E. 704. See also Jenkins v.
CST Timber Co., 761 So. 2d 177, 181 (Miss. 2000). In this case, the witnesses who were
called by the plaintiffs’ to testify were present in the operating room and observed the
procedure and how Wright maintained discipline in the room during the operation. They had
the factual basis from which they could formulate conclusions whether Wright was in control
of the operating room. Their testimony is helpful to the jury because it would have provided
the jury with the opinions of trained medical personnel whose observations that day were based
upon the facts and tempered by the life experiences each brought with them to the operating
room. I think such testimony would have been valuable to the jury when it considered how
much control over the situation Wright had and whether there was negligence.
¶39. I, therefore, disagree with the plurality that this testimony is inadmissible because it
invades the province of the jury. It was admissible under our rules of evidence, and it was error
to exclude the testimony. Operating against the plurality is its own attempt to bolster its
argument by restating other facts these witnesses were allowed to tell the jury and referring
to the jury instructions which were granted. This is the beginning of a harmless error analysis.
22 It is not support for the proposition that the trial court did not err in excluding this valuable
testimony because the question of control was one for the jury. The issue of control is an
issue of fact, but one upon which lay observers of the facts can properly form opinions and
give helpful testimony to the jury. Therefore, the plurality is incorrect when it says this is not
error.
¶40. Turning now to the negligence per se instruction, the plurality correctly concludes that
Wright offered insufficient testimony in rebuttal to the plaintiffs’ argument that the instruction
should have been given. However, the plurality also finds that it was harmless error to refuse
plaintiffs’ tendered instruction on negligence per se with regards to the unauthorized use of
a prescription heating blanket. The plurality finds support for its argument in the jury's verdict,
where it can be concluded that the jury either determined that the blanket was not the proximate
cause of the injury or that it was not negligence to have used it. I must take issue with this
argument. If this Court could definitively state that the jury rejected liability based upon
insufficient proof of proximate cause, then this issue could be put to rest. Since it cannot, I
think the trial judge should have given the negligence per se instruction. There is an evidentiary
basis in the record to support giving P-4, and it was unrebutted that the blanket required a
prescription for use.
¶41. The standard to be applied by a trial court when determining whether to give certain
tendered instructions is quite liberal. "A party to an action is entitled to have the jury
instructed regarding a genuine issue of material fact so long as there is credible evidence in
the record which would support the instruction." Hill v. Dunaway, 487 So. 2d 807, 809 (Miss.
1986). In the instant case, the uncontradicted evidence indicates that the blanket required a
23 prescription before it could be used. We do not need to address at this stage whether the
quality of care provided to Tammy Winters fell below the appropriate standard of care. The
instruction limits itself to the question of whether the blanket was properly used. The facts
indicate that it was not prescribed by a physician's order as our laws require. Therefore, its use
here was negligence per se. See Miss. Code Ann. §§ 73-25-1 & -33 (Rev. 2000). Where the
jury instructions do not fairly or adequately instruct the jury, this Court can and will reverse.
Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 447 (Miss. 1999) (citing Lovett
v. Bradford, 676 So. 2d 893, 897 (Miss. 1996)). The plaintiffs were entitled to the negligence
per se instruction, and it was more than just harmless error to refuse the instruction.
¶42. In my opinion, the trial judge committed two errors: excluding the lay opinion
testimony of the knowledgeable witnesses who could answer whether Wright was in control
of the operating room and refusing to give the negligence per se instruction, P-4. These errors,
when taken together, restricted testimony and inadequately instructed the jury to the extent that
the plaintiffs were not provided a meaningful day in court. Therefore, I would reverse the
judgment below and remand this case for a new trial.
GRAVES, J., JOINS THIS OPINION. McRAE, P.J., JOINS IN PART.
McRAE, PRESIDING JUSTICE, DISSENTING:
¶43. There is no majority in this case. Presiding Justice Smith has the plurality, and the trial
court's judgment is affirmed by this equally divided Court. Again, the "voiding" of Justice
Diaz's votes by the "majority caucus" has manipulated the system. If Justice Diaz's vote in this
matter had been allowed to stand, then either Chief Justice Pittman or I would have secured the
24 majority in this case which would have led to a reversal. The "voiding" of Justice Diaz's votes
has resulted in the outcome of yet another case being manipulated by a divided Court with less
than nine Justices participating. Furthermore, while I agree with Chief Justice Pittman's
dissent as to the need for a reversal and remand of this case, I write separately only to
emphasize my position that the trial court also erred by refusing the res ipsa loquitur
instruction.
¶44. This case meets all the elements required for a res ipsa loquitur instruction. Tammy
Winters was required to have emergency surgery as a result of a gunshot wound. A heating
blanket was placed underneath her body during surgery to stabilize her core body temperature.
The heating blanket caused severe burns. Dr. Wright claims he did not know the heating blanket
was being used, yet he said it was necessary to help keep the patient alive during surgery. Two
technicians and a nurse in the operating room saw the burn marks on the back of the patient.
Winters incurred over $100,000.00 in medical expenses to treat the third degree burns to her
back side. At trial, testimony regarding Dr. Wright's control in the operating room was not
allowed and a res ipsa instruction was later denied. Based on these errors alone, this case
should be reversed and remanded. As the plurality correctly states, this Court will reverse
where the jury instructions do not fairly and adequately instruct the jury. Paracelsus Health
Care Corp. v. Willard, 754 So.2d 437, 447 (Miss. 1999) (citing Lovett v. Bradford, 676
So.2d 893, 897 (Miss. 1996)). To be entitled to an instruction on res ipsa loquitur, the
plaintiff must show that (1) the event must be one that would not normally occur absent
someone's negligence; (2) the injury is such that in the ordinary course of things it would not
occur if those in control of the instrumentality used proper care; and (3) the plaintiff must not
25 have voluntarily contributed to the event. Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997)
(quoting Erby v. North Miss. Med. Ctr., 654 So.2d 495, 500 (Miss. 1995)). The evidence
clearly showed that Winters was burned by the heating blanket during surgery. In fact, the
plurality even states that "Tammy offered such expert testimony that the tissue was burned due
to the heating pad." Just because the defense presented their own expert witness who disagreed
with this analysis does not negate the fact that Tammy presented sufficient evidence for a res
ipsa loquitur instruction. Surely, third-degree burns during operations are not a normal
occurrence without some form of negligence. Clearly, Winters would not have sustained the
burns if Dr. Wright and his staff had followed the use directions for the heating blanket.
Winters was unconscious and could not have voluntarily acted in anyway to injure herself with
the heating blanket. Winters presented ample evidence to support an instruction on res ipsa
loquitur. The denial of the instruction was a reversible error as the jury was not properly and
adequately instructed.
¶45. For these reasons, I would reverse the trial court's judgment and remand this case for
a new trial. Accordingly I dissent to the findings reached by the plurality and concur with Chief
Justice Pittman's dissent, even though it fails to recognize reversible error as to the trial
court's refusal to give the res ipsa loquitur instruction.