IN THE SUPREME COURT OF MISSISSIPPI
NO. 2023-IA-00767-SCT
UNITED EMERGENCY SERVICES OF MISSISSIPPI, INC., AND KEITH E. McCOY, M.D.
v.
OLIVER MILLER, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF SHANNON REED
DATE OF JUDGMENT: 06/23/2023 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. TRIAL COURT ATTORNEYS: BRADFORD KEITH MORRIS LEO JOSEPH CARMODY, JR. DAVID W. UPCHURCH JOHN MARK McINTOSH GAYE NELL LOTT CURRIE D. COLLIER GRAHAM, JR. COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: D. COLLIER GRAHAM, JR. GAYE NELL LOTT CURRIE ATTORNEY FOR APPELLEE: BRADFORD KEITH MORRIS NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED - 04/24/2025 MOTION FOR REHEARING FILED:
CONSOLIDATED WITH
NO. 2023-IA-00772-SCT BAPTIST MEMORIAL HOSPITAL-GOLDEN TRIANGLE, INC.
OLIVER MILLER, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF SHANNON REED
DATE OF JUDGMENT: 06/23/2023 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: LEO JOSEPH CARMODY, JR. DAVID W. UPCHURCH JOHN MARK McINTOSH ATTORNEY FOR APPELLEE: BRADFORD KEITH MORRIS NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED - 04/24/2025 MOTION FOR REHEARING FILED:
BEFORE COLEMAN, P.J., MAXWELL AND BRANNING, JJ.
COLEMAN, PRESIDING JUSTICE, FOR THE COURT:
¶1. On behalf of the wrongful-death beneficiaries of Shannon Reed, Oliver Miller brought
medical negligence claims against Baptist Memorial Hospital-Golden Triangle, United
Emergency Services, and Dr. Keith McCoy in the Circuit Court of Lowndes County,
Mississippi. Baptist, United, and Dr. McCoy filed motions for summary judgment, arguing
that Miller’s medical negligence claims failed as a matter of law for lack of causation. The
circuit court found genuine issues of material fact for the jury’s determination and denied
summary judgment. The Court granted Baptist, United, and Dr. McCoy’s petition for
interlocutory appeal on the narrow issue of whether genuine issues of material fact exist as
2 to causation. We affirm the circuit court’s denial of summary judgment in part, and we
reverse and render in part. The case is remanded to the Lowndes County Circuit Court for
further proceedings.
BACKGROUND
¶2. On April 26, 2018, around 7:30 p.m., Shannon Reed arrived at the Baptist emergency
room reporting severe chest pain, nausea, shortness of breath, and numbness in his left arm.
Reed initially stated that he experienced eight out of ten pain while exercising but that the
pain had reduced to a three out of ten after arriving at the hospital. Reed had a history of
hypertension, failure to take medication, tobacco use, and Tourette’s syndrome. Reed had
previously visited Baptist on August 2, 2016, for similar symptoms and received an
electrocardiogram (EKG).
¶3. Upon Reed’s arrival on April 26, 2018, Dr. McCoy ordered an EKG, a chest X-ray,
a Troponin measurement, and a follow-up Troponin level check ninety minutes later. At 8:15
p.m., Dr. McCoy ordered a second EKG and then a third at 9:37 p.m. when Reed’s pain
increased to a nine out of ten. All three EKGs were interpreted as “nonspecific.” Reed’s
chest pain eventually subsided, and Dr. McCoy initiated Reed’s discharge from the
emergency room.
¶4. Prior to his discharge, Reed informed his nurse, Danielle Oakes, that his pain had
increased to a six out of ten at 10:21 p.m. No one informed Dr. McCoy of the pain increase,
and Reed was discharged from the hospital “with a diagnosis of unspecified chest pain that
was possibly related to muscle strain from over-exertion and uncontrolled hypertension.”
3 Further, Reed was prescribed several medications and was instructed “to follow up with a
cardiologist within 1 week and avoid boxing or heavy lifting.” Reed died during the night
following his discharge.
¶5. Oliver Miller, Reed’s father, subsequently filed several medical negligence claims in
the Lowndes County Circuit Court against Baptist, United, and Dr. McCoy on behalf of
Reed’s wrongful-death beneficiaries. He alleged that Reed’s death was proximately caused
by the defendants’ failures to properly monitor, diagnose, treat, and discharge Reed. In
support of the allegation, Miller presented the expert testimony of Dr. Kenneth A. Stein, Dr.
Zia Ahmad, Registered Nurse Gregory Jones, and Dr. Paul Uribe. Miller’s experts described
what they considered, in their professional opinions, various breaches in the standard of care
that caused or contributed to Reed’s death.
¶6. In response, Baptist introduced affidavits of two of its employees, Dr. Joon Chang and
Dr. John King, the on-call cardiologist and backup on-call cardiologist, respectively. In the
emergency room, if Dr. McCoy sought to admit Reed, he would have been required to obtain
Dr. Chang’s or Dr. King’s approval. In their affidavits, both doctors attested that, after
reviewing Reed’s medical history and records, they would have taken the same measures as
Dr. McCoy. Further, even assuming Dr. McCoy had been notified of Reed’s pain increase
of six out of ten and had consulted with them, Drs. Chang and King attested that they, like
Dr. McCoy, would not have admitted Reed to the hospital.
¶7. Based on Dr. Chang’s and Dr. King’s testimony, Baptist, United, and Dr. McCoy
maintain that any alleged breach in the standard of care would not have changed the outcome.
4 Thus, Baptist, United, and Dr. McCoy filed motions for summary judgment asserting that
Miller’s medical negligence claims failed for lack of causation.
¶8. Miller then filed an omnibus response in opposition to the motions for summary
judgment, rebutting that his experts provided evidence of a prima facie case of negligence,
or at a minimum, established a genuine issue of material fact for the jury. A hearing on the
motions was later held on May 19, 2023. In its order entered on June 22, 2023, the circuit
court denied the motions for summary judgment, finding that genuine issues of material fact
existed. Baptist, United, and Dr. McCoy filed a petition for interlocutory appeal, which the
Court granted.
DISCUSSION
I. Whether the circuit court erred by denying summary judgment.
¶9. “On appeal, the grant or denial of a motion for summary judgment is reviewed de
novo, viewing the evidence ‘in the light most favorable to the party against whom the motion
has been made.’” Hardaway v. Howard Indust., Inc., 378 So. 3d 946, 951 (¶ 14) (Miss.
2024) (internal quotation marks omitted) (quoting Maness v. K & A Enters. of Miss., LCC,
250 So. 3d 402, 409 (Miss. 2018)). “However, the nonmoving party ‘must set forth specific
facts showing that there is a genuine issue for trial,’ and cannot merely ‘rest upon the mere
allegations or denials of his pleadings.’” Williams v. City of Batesville, 313 So. 3d 479, 482
(¶ 7) (Miss. 2021) (internal quotation marks omitted) (quoting Boroujerdi v. City of
Starkville, 158 So. 3d 1106, 1109 (Miss. 2015), overruled on other grounds by Wilcher v.
Lincoln Cnty. Bd. of Supervisors, 243 So. 3d 177 (Miss. 2018); M.R.C.P. 56(e)).
5 A prima facie case of negligence requires proof 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.
Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 650 (¶ 15) (Miss. 2009) (quoting
McDonald Mem’l Hosp. at Gulfport, 8 So. 3d 175, 180 (Miss. 2009)).
“[C]ausation is generally a matter for the jury.” Owens Corning v. R.J. Reynolds Tobacco
Co., 868 So. 2d 331, 340 (¶ 20) (Miss. 2004) (internal quotation marks omitted) (quoting
Donald v. Amoco Prod. Co., 735 So. 2d 161, 174 (Miss. 1999)). The nonmoving party
generally must establish medical negligence through expert testimony. Johnson v. Pace, 122
So. 3d 66, 68 (¶ 8) (Miss. 2013) (citing Smith ex rel. Smith v. Gilmore Mem’l Hosp., Inc.,
952 So. 2d 177, 180 (Miss. 2007)). “Not only must this expert identify and articulate the
requisite standard that was not complied with, the expert must also establish that the failure
was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id.
(internal quotation marks omitted) (quoting Barner v. Gorman, 605 So. 2d 805, 809 (Miss.
1992)). Summary judgment should only be granted “when the moving party has met its
burden by demonstrating that no genuine issues of material fact exist.” Id. (¶ 7) (citing
Tucker v. Hinds Cnty., 558 So. 2d 869, 872 (Miss. 1990)).
¶10. On appeal, Baptist, United, and Dr. McCoy contend, in reliance on Smith v. Hardy
Wilson Memorial Hospital, 300 So. 3d 991 (Miss. 2020), that summary judgment should
have been granted because Miller failed to meet his burden of proof on the causation
6 requirement. Specifically, they assert that summary judgment was appropriate because
Baptist’s cardiologists would not have altered Reed’s treatment, so any alleged negligence
could not have caused Reed’s death. According to Baptist, United, and Dr. McCoy, Miller
cannot, as a matter of law, establish a prima facie case of medical negligence without proof
of causation
¶11. In Smith, the estate and wrongful-death beneficiaries of the deceased patient, Carolyn
Smith, filed suit alleging that multiple providers negligently caused or contributed to her
death. Id. at 994 (¶ 6). One such claim was against the hospital, Hardy Wilson, and its
nursing staff’s alleged negligence. The plaintiffs presented the expert testimony of a nursing
care expert who opined that Carolyn’s attending nurses breached the standard of care by
failing to take “affirmative action” to prevent her discharge. Id. (¶ 8).
¶12. There, we held that the plaintiff did not produce sufficient evidence of causation to
support the claim. Id. at 999 (¶ 23). Specifically, the plaintiff’s nursing expert opined that,
had the nurses followed the standard of care, the plaintiff’s decedent “would not have been
discharged[.]” Id. at 997-98 (¶ 18). We affirmed the trial court’s grant of summary
judgment because the plaintiff had no proof that, had the nurses performed as the nursing
expert opined they should, she indeed would not have been discharged.
The Smiths did not present any proof that an administrator with the authority to overrule the doctor or an on-call physician with the same power even existed, much less that either of those individuals would have overruled Dr. Johnson’s decision to discharge Carolyn. Hardy Wilson asserts in its brief, seemingly without contest, that no such personnel were available. More importantly, the record does not contain any evidence that said personnel were or should have been available, a vital link in establishing causation under this
7 claim. We would literally have to assume, with no evidence, that such personnel existed and would act accordingly.
Additionally, the record contains no proof that Dr. Johnson would have changed his mind when faced with opposition from the nurses. To be sure, the Smiths’ physician experts opine that Dr. Johnson violated the standard of care by discharging Carolyn. But neither Dr. Dale nor Dr. Stodard aver that persistence by the nurses after Dr. Johnson’s final decision to discharge would have resulted in a different decision. They are the only experts presented who could testify as to what the doctor should have done with or without intervention by the nurses. Based on our review, the record affirmatively shows that despite the nurses’ communicating Carolyn’s condition to Dr. Johnson, he nonetheless chose to discharge her. In fact, all three of the Smiths’ proffered experts acknowledge and the Smiths repeatedly concede that the nursing staff fully informed Dr. Johnson of Carolyn’s vital signs, that Dr. Johnson had the nurses recheck the vital signs after they had taken a turn for the worse to confirm the numbers and that it was still Dr. Johnson’s decision to discharge Carolyn.
Id. at 998 (¶¶ 20-21).
¶13. Thus, Baptist, United, and Dr. McCoy urge that “[i]t is well established Mississippi
law that where no evidence that a different course of treatment would have ensued absent the
alleged negligence which would have more likely than not resulted in a patient’s survival,
the defendant’s alleged negligence cannot be a cause in fact of the death.” (citing Smith, 300
So. 3d at 997 (¶ 17)). Because the on-call cardiologists stated they would not have taken a
different course of action, they assert that neither Dr. McCoy nor the hospital staff could have
been a cause in fact of Reed’s death.
¶14. Baptist, United, and Dr. McCoy also cite Mississippi Baptist Health Systems v.
Harris, 320 So. 3d 484, 488 (¶ 18) (Miss. 2021), where, similar to Smith, the Court held that
the plaintiffs failed to establish an issue of fact because their medical expert did not show
8 that the doctor “would have acted differently had he been informed by the nursing staff of
[the deceased patient’s] continued pain.”
¶15. Here, after reviewing the autopsy findings and Reed’s medical records, Reed’s expert
Dr. Stein concluded that “within a reasonable degree of medical probability had Mr. Reed
been admitted to the hospital on the evening of April 26th, 2018, he would have been
properly monitored, appropriately treated and would not have died. . . .” Dr. Stein stated that,
based on Reed’s medical history, he “was at high risk for a major cardiac event or other
major illness” and that Dr. McCoy should have admitted Reed to the hospital.
¶16. However, we agree with Baptist, United, and Dr. McCoy that Miller fails to make a
prima facie case of medical negligence on his claim that Dr. McCoy failed to admit Reed to
the hospital. Specifically, consistent with Smith, Miller failed to meet the causation element
by showing that the on-call cardiologist would have admitted Reed into the hospital. Dr.
McCoy did not have admitting privileges, so he would have needed to consult the on-call
cardiologist to admit Reed. As in Smith, affidavits in the record from the cardiologist on-call
and another cardiologist provide that, even if the on-call cardiologists had been consulted
about admission, they would not have admitted Reed. Smith, 300 So. 3d at 998 (¶ 21). As
such, Miller fails to show Dr. McCoy would have pursued a different course of treatment if
they had been consulted, and he therefore fails to show the alleged negligence was a cause
in fact of Reed’s death. Therefore, the circuit court erred by not granting summary judgment
on the theory that Dr. McCoy failed to admit Reed to the hospital.
9 ¶17. Conversely, we affirm the circuit court’s denial of summary judgment on all of
Miller’s other claims, discussed below, because, as to those claims, Miller made a prima
facie case of medical negligence. While it is true that “the question as to whether or not the
opinion of an expert is based on, and supported by sufficient facts or evidence to sustain it,
is a question of law for the court[,]” Smith, 300 So. 3d at 998 (¶ 22) (internal quotation
marks omitted) (quoting Gulf Ins. Co. v. Provine, 321 So. 2d 311, 314 (Miss. 1975), it is
evident, as the circuit court implicitly found, that Miller’s experts presented sufficient facts
and evidence to sustain their opinions.
¶18. Dr. Stein also found issue with Reed’s discharge instructions, asserting that “it would
be unreasonable for an emergency medicine physician to expect that Mr. Reed would be able
to be evaluated by a cardiologist within 1 week.” Dr. Stein concluded his testimony by
providing specific breaches of the standard of care that, in his opinion, “were major
contributing factors” to Reed’s death:
1. Failing to compare the EKGs obtained on April 26th, 2018 with the EKG obtained on August 2nd, 2016.
2. Incorrectly interpreting three EKGs obtained on April 26th as showing “nonspecific changes” when they actually showed changes suggestive of ischemia to the inferior (lower) aspect of the heart.
3. Incorrectly interpreting the 2nd and 3rd EKG’s obtained on April 26 as being similar to the first EKG obtained on that date when in fact there were changes between the EKGs.
4. Not contacting a cardiologist, hospital or primary care physician to admit Mr. Reed to the hospital on April 26th 2018.
5. Discharging Mr. Reed from the hospital with instructions to follow up with the cardiologist within seven days.
10 ¶19. Dr. Stein also identified Nurse Oakes’s failure to inform Dr. McCoy of Reed’s pain
increase as another breach in the standard of care that caused or contributed to Reed’s death.
Lastly, Dr. Stein noted,
[i]f Dr. McCoy had been informed that Mr. Reed’s pain was 6/10 at 10:21 PM and allowed him to be discharged despite this, this was a further breach of the standard of care on the part of Dr. McCoy. Within a reasonable degree of medical probability, this breach of the standard of care caused or contributed to cause Mr. Reed’s death on the night of April [26th] / morning of April 27, 2018.
Taking the above-quoted opinion as true and in a light most favorable to the plaintiff, Dr.
Stein has given a competent expert opinion that Dr. McCoy breached the standard of care by
not holding Reed longer and that the failure to hold him caused his death. The failure to hold
does not mean the same thing, at least given the standard applicable to a motion for summary
judgment, as admission to the hospital.
¶20. Additionally, Baptist, United, and Dr. McCoy claim that Miller failed to prove the
causation requirement necessary to make a prima facie case of medical negligence on his
claim that the nurse was negligent by failing to report Reed’s pain increase to Dr. McCoy.
They claim no causation exists because Dr. McCoy testified that had he been consulted, he
would not have admitted Reed or held him longer, but that is an inaccurate portrayal of Dr.
McCoy’s testimony.
¶21. Dr. McCoy specifically testified that had he been notified of the pain increase, he
“would have gone back in the room and talked to the patient.” He stated that he would have
collected more information about where the pain was coming from, along with its nature and
quality, and then he would have compared it to the information already collected. Dr. McCoy
11 also testified that, based on his reevaluation of Reed’s pain, he would have determined
whether to conduct another EKG. Under Smith, Miller has produced evidence showing that,
“but for the defendant’s negligence, the injury would not have occurred” because Dr. McCoy
proffered that he would have pursued a different course of treatment absent the alleged
negligence. Smith, 300 So. 3d at 997 (¶ 17). As such, viewing the evidence in the light most
favorable to Miller, Miller made a prima facie showing of medical negligence on the
aforementioned claim.
¶22. Dr. Ahmad stated that her “review of the medical records of Mr. Shannon Reed
revealed many missed opportunities and oversights which resulted in care that did not meet
the standard of care resulting in the unfortunate outcome.” She opined that the standard of
care for patients with symptoms and similar medical history “is hospitalization for
observation, further diagnostic tests and aggressive treatment.” Dr. Ahmad further listed
various treatments that should have been undertaken but were not. She also noted that, in her
opinion, Dr. McCoy and the nursing staff incorrectly interpreted the EKGs, failed to properly
communicate Reed’s symptoms, and inappropriately treated Reed’s pain fluctuations, all of
which constituted deviations from the standard of care. Dr. Ahmad concluded as follows:
All of the above were deviations from the accepted norms and practices in patients with clinical presentations as above. These represented breaches of standard of care. To a reasonable degree of medical certainty it is my opinion that these breaches in the standard of care caused or contributed to the death of Mr. Shannon Reed.
12 Finally, Dr. Uribe, a forensic pathologist, reviewed Reed’s medical history and autopsy
report and attested that in accordance with Dr. Ahmad’s findings, Reed would likely have
survived but for the improper “diagnosis, intervention and treatment.”
¶23. In sum, Miller maintains that his experts have clearly established a prima facie case
of negligence by providing evidence that
[The] standard of care violations by both Dr. McCoy and Nurse Oakes resulted in systemic failure at [Baptist’s] emergency department during the care of Mr. Reed; that EKG results were misinterpreted and not compared to prior results; that the timing of the serial troponin testing was not performed consistent with hospital policy and generally accepted standards of care; that standard of care required Mr. Reed be kept at the hospital for additional monitoring, testing, and interventions; that important information of changes in Mr. Reed’s pain level prior to discharge was not communicated by Nurse Oakes to Dr. McCoy; and the improper, untimely discharge of Mr. Reed proximately caused or contributed to his death.
¶24. Based on the above, we conclude that Miller’s experts presented sufficient evidence
of multiple breaches in the standard of care that caused or contributed to Reed’s death.
¶25. United and Dr. McCoy also contend that Miller’s experts provided “no real facts” that,
under the “loss-of-chance-recovery” doctrine, Reed would have had a greater than 50 percent
chance of survival. “To recover under this theory, the plaintiff must prove that, but for the
physician’s negligence, he or she had a reasonable probability of a substantial improvement.”
Mem’l Hosp. at Gulfport v. White, 170 So. 3d 506, 508 (¶ 11) (Miss. 2015) (citing Clayton
v. Thompson, 475 So. 2d 439, 445 (Miss. 1985)).
¶26. United and Dr. McCoy liken the present case to Hubbard v. Wansley, 954 So. 2d 951,
965-66 (¶ 48) (Miss. 2007), in which the Court held that the plaintiff failed to make a viable
loss-of-chance claim because her expert opinion was “almost wholly conclusory on the issue
13 of causation and gives very little in the way of specific facts and medical analysis to
substantiate the claim that Hubbard had a greater than fifty percent chance of substantial
recovery . . . .”
¶27. Again, Miller’s experts provided competent evidence showing that Reed’s death
would have been prevented had the requisite standards of care been followed relating to (1)
observation, monitoring, and intervention, (2) Reed’s past medical history, (3) interpreting
the EKGs, (4) conducting the Troponin tests, (5) reporting Reed’s pain increase, and (6) the
timeliness and instructions concerning Reed’s discharge. Miller asserts that if Dr. McCoy
had properly interpreted the EKGs, completed the Troponin testing in accordance with
Baptist’s policy, conducted additional testing or administered medication consistent with
Reed’s symptoms and previous medical history, then Reed more likely than not would have
survived.
¶28. Thus, we agree with Miller that, unlike in Hubbard, Miller’s experts provided
sufficient facts and analysis to support loss-of-chance recovery rather than “wholly
conclusory” statements on causation. Id. Miller presented competent expert testimony that,
but for the alleged failures listed above, Reed had a reasonable probability of survival, or at
the very least, the expert testimony established an issue of fact reserved for the jury.
¶29. Excluding Miller’s claims that rely on the theory that Dr. McCoy should have
admitted Reed into the hospital, we conclude that the plaintiff has made a prima facie case
of medical negligence and has shown the existence of triable issues of fact as to causation.
As discussed above, Baptist’s expert opinions clearly create at least one factual issue for the
14 jury: Baptist’s experts contend that Reed’s death was unavoidable, and Miller’s experts assert
the opposite. “When reasonable minds might differ on the matter, questions of proximate
cause and of negligence” are generally for the jury to decide. Rein v. Benchmark Constr.
Co., 865 So. 2d 1134, 1144 (¶ 31) (Miss. 2004) (citing Hankins Lumber Co. v. Moore, 774
So. 2d 459, 464 (Miss. Ct. App. 2000)).
CONCLUSION
¶30. Viewing the evidence in the light most favorable to Miller, we conclude there are
genuine issues of material fact for the jury’s determination on Miller’s claims except claims
that rely on the theory that Dr. McCoy should have admitted Reed to the hospital. Therefore,
we reverse and render summary judgment in favor of Baptist, United, and Dr. McCoy to the
extent that Miller claims they were negligent for not admitting Reed to the hospital, and we
affirm the circuit court’s denial of summary judgment on Miller’s remaining claims. The
case is remanded to the Circuit Court of Lowndes County for further proceedings.
¶31. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED.
RANDOLPH, C.J., KING, P.J., MAXWELL, CHAMBERLIN, ISHEE, GRIFFIS, SULLIVAN AND BRANNING, JJ., CONCUR.