Whittington v. Mason

906 So. 2d 10, 2004 WL 2163388
CourtCourt of Appeals of Mississippi
DecidedSeptember 28, 2004
Docket2003-CA-00700-COA
StatusPublished
Cited by3 cases

This text of 906 So. 2d 10 (Whittington v. Mason) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whittington v. Mason, 906 So. 2d 10, 2004 WL 2163388 (Mich. Ct. App. 2004).

Opinion

906 So.2d 10 (2004)

Bennie Scott WHITTINGTON and Tina S. Whittington, Appellants
v.
Woodie L. MASON, M.D. and Hinds Urology Clinic, P.A., Appellees.

No. 2003-CA-00700-COA.

Court of Appeals of Mississippi.

September 28, 2004.
Rehearing Denied November 30, 2004.

*12 Douglas G. Mercier, Willie T. Abston, Jackson, attorneys for appellants.

George Quinn Evans, Lynda Clower Carter, Jackson, attorneys for appellees.

EN BANC.

LEE, P.J., for the Court.

FACTS

¶ 1. On May 19, 1998, Bennie Scott Whittington and his wife, Tina, parents of six children, visited Dr. Mason at the Hinds Urology Clinic, P.A. to discuss a vasectomy. Mason's employee, Ms. Thomas, escorted the couple to a room in which they viewed a videotape informing the couple about the procedure. At the conclusion of the tape, Ms. Thomas returned and presented the couple with a consent form. Ms. Thomas left the couple to review the consent form in private. No one from the clinic reviewed the consent form with either of the Whittingtons. Later, Tina testified that she signed the form, which states that the couple had been informed of alternatives and complications, because the videotape had given the couple information and advice about the vasectomy. That same day Mason met with Tina and Bennie to discuss the procedure. Dr. Mason advised the couple that a vasectomy is a simple procedure and that Bennie would be able to return to his job as a mechanic within seventy-two hours of the surgery. Mason confirmed that both Tina and Bennie had viewed the video, and Mason asked them if they had any questions. After the visit, the Whittingtons scheduled an appointment for a vasectomy on May 28, 1998.

¶ 2. Dr. Mason performed the vasectomy as scheduled on May 28, and Bennie was released that same day. An hour after returning home, Bennie complained of severe pain and swelling. Tina called Dr. Mason, and at the doctor's instruction they returned to the clinic after business hours that same day. Dr. Mason advised Bennie to stay off his feet for the remainder of the day. Bennie returned to Dr. Mason on June 2 and June 8 due to his pain. While Bennie was at work on July 9, he experienced severe pain in his scrotal area and began bleeding. He again called Dr. Mason, who diagnosed a tear in the scrotal area. Dr. Mason recommended a second operation to remove a granuloma from Bennie's scrotum. After the operation on July 15, Bennie was unable to return to work for three to four weeks, and he continued to experience severe pain. Bennie returned to the clinic on July 24, and Dr. Mason told Bennie that the pain would subside and released Bennie to return to work on August 3.

¶ 3. Bennie sought a second opinion from Dr. Shingleton, who removed another granuloma at the end of August. For three to six weeks after the surgery Bennie experienced pain, swelling, bruising and drainage. He continued seeing Dr. Shingleton until November 30. On January 29, 1999, Bennie sought assistance from Dr. Fraser. Dr. Fraser gave Bennie a scrotal injection to relieve pain, however the pain returned. Dr. Fraser then referred Bennie to a pain clinic. After these treatments did not alleviate Bennie's discomfort, Dr. Fraser performed an orchiectomy, removing Bennie's right testicle. Dr. Fraser released Bennie to return to work on June 14, 1999.

PROCEDURAL HISTORY

¶ 4. Bennie and Tina filed suit in Hinds County against Dr. Mason and the Hinds County Urology Clinic, P.A. claiming that Mason and the Clinic breached their contract and failed to provide the proper standard of care in performing the vasectomy. *13 Tina and Bennie further alleged that the defendants maimed, assaulted and battered Bennie in their attempts to repair the vasectomy. Bennie and Tina further alleged that the Clinic and Dr. Mason performed surgical procedures on him without his informed consent.

¶ 5. Mason and the Clinic moved for summary judgment. The trial court entered an agreed order of partial summary judgment, dismissing all claims of negligence, but leaving the informed consent claim. Before the jury was seated, the Whittingtons filed a motion in limine seeking to exclude the expert testimony of Dr. Weems. The court denied the motion, stating that the determination of the known risks and whether or not the known risks are material risks lay within the determination of an expert medical witness and not within the abilities of a lay person. The court further held that expert medical testimony was necessary to determine the type of information that should be furnished to a patient regarding the known risks of a procedure. The court also determined that it would be improper to allow a lay person to testify as to what they should have been told because a lay person is not a doctor.

¶ 6. A trial on the merits of the case was heard before Judge Yerger from September 16 to 18, 2002. At the close of the Whittingtons' case, Dr. Mason and the Clinic moved for a directed verdict, and the court took the motion under advisement. The motion for a directed verdict was renewed at the close of the defendants' case, and Judge Yerger informed the parties that he had reservations about whether or not the case should go to the jury because of his opinion that the law required expert testimony concerning the material risks of a vasectomy. The jury was unable to reach a verdict, and the court entered an order of mistrial on September 30, 2002. On September 25, Mason and the Clinic filed a motion for judgment pursuant to Mississippi Rules of Civil Procedure Rule 50(b), requesting that the court rule on their motion for a directed verdict and enter judgment in favor of Mason and the Clinic. A final judgment was entered on the clerk's docket on December 4, 2002. On December 16 the Whittingtons filed a motion for a new trial, to vacate or set aside the judgment, and to amend and reconsider the order and judgment. The court denied the motion on February 20, 2003. The Whittingtons subsequently filed their appeal, citing two assignments of error: (1) whether the trial court erred in granting Mason's and the Clinic's motion for a directed verdict; and (2) whether the trial court erred in denying the Whittingtons' motion in limine.

STANDARD OF REVIEW

¶ 7. On appeal, this Court reviews de novo motions for directed verdict. When deciding whether the granting of a motion for directed verdict was proper by the lower court, we consider the evidence in the light most favorable to the non-moving party and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial. Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, 617 So.2d 248, 252 (Miss.1993). If the favorable inferences have been reasonably drawn in favor of the non-moving party so as to create a question of fact from which reasonable minds could differ, then the motion for directed verdict should not be granted and the matter should be given to the jury. Id.; Pace v. Financial Sec. Life of Mississippi, 608 So.2d 1135, 1138 (Miss.1992).

¶ 8. This Court uses an abuse of discretion standard regarding the admission or the exclusion of evidence. Thompson Mach. Commerce Corp. v. Wallace, 687 *14 So.2d 149, 152 (Miss.1997). The trial court does not abuse its discretion in granting a motion in limine if he determines that: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. Whittley v. City of Meridian,

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