Bryant Austin v. Wayne T. Lamar

IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-CA-00905-COA
BRYANT AUSTIN AND SHIRLEY AUSTIN APPELLANTS
v.
BAPTIST MEMORIAL HOSPITAL - NORTH MISSISSIPPI APPELLEE

CONSOLIDATED WITH

NO. 97-CA-00186

BRYANT AUSTIN AND SHIRLEY AUSTIN APPELLANTS
v.
DR. WAYNE T. LAMAR, BAPTIST MEMORIAL HOSPITAL - NORTH
MISSISSIPPI, JOHN DOE AND ABC CORPORATION APPELLEES

DATE OF JUDGMENT: 04/13/1998
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ROY O. PARKER, JR.
ROY O. PARKER
ATTORNEYS FOR APPELLEE: JOHN H. DUNBAR
C. JACKSON WILLIAMS
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION SUMMARY JUDGMENT GRANTED IN FAVOR OF THE
DEFENDANTS
DISPOSITION: AFFIRMED - 04/18/2000
MOTION FOR REHEARING FILED: 5/4/2000; denied 7/25/2000
CERTIORARI FILED: 8/10/2000; denied 10/12/2000
MANDATE ISSUED: 11/2/2000

BEFORE McMILLIN, C.J., BRIDGES, PAYNE, AND THOMAS, JJ.

THOMAS, J., FOR THE COURT:

¶1. Bryant Austin alleged he sustained an injury to his upper right leg as a result of the negligence of Dr.
Wayne T. Lamar, an orthopedic surgeon, and the staff of Baptist Memorial Hospital-North Mississippi. The
Austins alleges that Dr. Lamar or an employee of BMH negligently injured his right leg above the knee
when his leg was improperly placed in a leg holding device which was used to keep his knee stabilized
during the surgery to repair a torn medial meniscus in his right knee. The Austins filed a suit against Dr.
Lamar and Baptist Memorial Hospital-North Mississippi on May 23, 1996. Dr. Lamar and BMH each
filed a motion for summary judgment claiming that the Austins did not establish a prima facie case because
they did not identify an expert witness to testify to establish negligence. Summary judgment was granted by
the Lafayette County Circuit Court judge as to both Dr. Lamar and BMH. Feeling aggrieved, the Austins
appeal to this Court asserting the following errors:

ISSUES

I. WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN THIS CASE.

II. WHETHER THE INJURIES SUFFERED BY PLAINTIFF TO A PART OF THE BODY
REMOTE FROM THE TREATMENT AREA IS NEGLIGENCE PER SE.

III. WHETHER EXPERT WITNESS TESTIMONY WAS NEEDED TO ESTABLISH A
STANDARD OF CARE AND BREACH THEREOF IN THIS MEDICAL MALPRACTICE
CASE WHEN THE INJURY OCCURRED IN A PART OF THE BODY REMOTE FROM THE
TREATMENT AREA WHILE THE PLAINTIFF, BRYANT AUSTIN, WAS UNDER THE
SUPERVISION AND CONTROL OF THE DEFENDANT MEDICAL CARE PROVIDERS.

IV. WHETHER SUMMARY JUDGMENT WAS INAPPROPRIATE AND PREMATURE.

¶2. Finding no error, we affirm.

FACTS

¶3. Bryant Austin injured his knee at work. He went to see Dr. Lamar who diagnosed him as having a
meniscal tear of the knee. A meniscectomy, an arthroscopic procedure (which uses an endoscope that is
inserted through a small incision), was scheduled to be performed on June 1, 1994 at Baptist Memorial
Hospital-North Mississippi. The procedure requires the patient's leg to be placed in a leg holding device to
keep the knee stabilized on the operating table. An inflatable tourniquet is also wrapped around the patient's
thigh and is inflated if the surgeon determines that an open procedure, which requires a full incision, must be
performed. The tourniquet is used to stop the flow of blood into the incision site so the surgeon can see to
perform the procedure. Dr. Lamar testified that a tourniquet was not used on Austin. Dr. Lamar also
testified that the anesthesiologist is responsible for recording whether a tourniquet was used and how long
the tourniquet was used. In the case at bar, the anesthesiologist's notes do not indicate that the tourniquet
was used.

¶4. The surgery was performed as scheduled on June 1, 1994, and Austin was discharged the same day.
Austin testified that when he first woke up he remembered his leg hurting above the knee. Shirley Austin,
Bryant's wife, testified that Bryant had pain above his knee and that there was a mark or indentation on his
right leg above the knee that looked like some device had been placed on the leg. Austin testified that his
leg continued to hurt and to swell until June 5, 1994, when he became extremely concerned regarding the
swelling in his leg and he returned to the hospital. Dr. Jean Gispen was consulted when Austin returned to
the hospital, and she diagnosed Austin's condition as rhabdomyolysis in the right leg (deterioration and
atrophy of the muscle). Dr. Lamar testified that many things can cause rhabdomyolysis, such as excessive
exercise, and including an injury to the muscle caused by excessive force applied to the muscle.
¶5. Austin also testified that after his surgery but before he was released, an unidentified man visited him in
his room and stated, "I'm sorry what happened. I just hate it happened."

¶6. On May 22, 1996, Shirley and Bryant Austin filed a complaint against Dr. Wayne T. Lamar, Baptist
Memorial Hospital-North Mississippi, John Doe and ABC Corporation. (John Doe and ABC Corporation
are unknown to us at this time and are not relevant to this appeal.) Dr. Lamar and BMH each filed a motion
for summary judgment. The circuit court granted the summary judgment in favor of Dr. Lamar and BMH
and the Austins are appealing that decision. Inexplicably, although the Austins filed the original complaint
against the defendants collectively, the cases came up for appeal separately but were ultimately
consolidated for purposes of disposition.

ANALYSIS

I. WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN THIS CASE.

III. WHETHER EXPERT WITNESS TESTIMONY WAS NEEDED TO ESTABLISH A
STANDARD OF CARE AND BREACH THEREOF IN THIS MEDICAL MALPRACTICE
CASE WHEN THE INJURY OCCURRED IN A PART OF THE BODY REMOTE FROM THE
TREATMENT AREA WHILE THE PLAINTIFF, BRYANT AUSTIN, WAS UNDER THE
SUPERVISION AND CONTROL OF THE DEFENDANT MEDICAL CARE PROVIDERS.

IV. WHETHER SUMMARY JUDGMENT WAS INAPPROPRIATE AND PREMATURE

¶7. These assignments are interrelated and will be addressed collectively.

¶8. Brown v. Credit Center, Inc., 444 So. 2d 358 (Miss. 1983), is the seminal case regarding the trial
court's duty in reviewing motions for summary judgment. The motion should be granted only where there is
no genuine issue of material fact; it is not to be taken as a substitute for a trial of disputed issues. The trial
court must view all evidence presented in the light most favorable to the party against whom the motion has
been made. Id. at 362. If any doubt exists as to whether there is a disputed fact issue, the nonmoving party
gets the benefit thereof. In fact, the party against whom the motion has been filed should be given the benefit
of every reasonable doubt. Id.

¶9. In the case at bar, the Austins maintain that the case was subject to the doctrine of res ipsa loquitur,
which raises an inference of negligence which must be rebutted, creating a genuine issue of fact. Dr. Lamar
and BMH argue that the Austin's claim must fail because they had no expert medical testimony.

¶10. Res ipsa loquitur, literally translated "the thing speaks for itself," is simply one form of circumstantial
evidence a plaintiff may rely on in certain circumstances. See Read v. Southern Pine Elec. Power Ass'n,
515 So. 2d 916, 919-20 (Miss. 1987). The doctrine of 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). In the case of Waddle v. Sutherland, 156 Miss. at 549-50, 126 So. at 203, the
Supreme Court of Mississippi held that the doctrine of res ipsa loquitur is applicable to malpractice cases.
However, res ipsa loquitur requires a finding that (1) the instrumentality causing the injury was under the
control and management of the defendant and (2) the occurrence resulting in the injury does not happen in
the ordinary course of events, where due care has been exercised. Id. Basically, where the thing is shown to
be under the management of the defendant, or his agent, and where an accident in the ordinary course of
events does not happen when business is properly conducted, the accident itself, if it happens, raises a
presumption of negligence in the absence of any explanation. Sanders v. Smith, 200 Miss. 551, 557, 27
So. 2d 889, 891 (1946). But the cause of the untoward results must be clearly connected with the
defendant as by his act or under his control before negligence can be presumed. Id.

¶11. The Mississippi Supreme Court stated that the law does not hold a physician or surgeon liable for
every untoward result which may occur, it requires only that the requisite degree of learning and skill
ordinarily possessed by physicians of good standing be exerted. Sanders v. Smith, 200 Miss. at 558, 27
So. 2d at 891 (citing Engelking v. Carlson, 88 P.2d 695, 697 (Cal. 1939). "Again citing the California
court, they announced the doctrine that whether a physician has used ordinary care in applying the degree
of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality is
generally a question for experts, and can be established only by their testimony unless the matter in issue is
within the common knowledge of laymen." Id. at 559, 27 So. 2d at 891-92 (citing Trindle v. Wheeler, 143
P.2d 932, 933 (Cal. 1943)).

¶12. In the Sanders case, a ten year old girl had a tonsillectomy operation and suddenly died. The mother
was the only witness offered. There was no expert testimony. Sanders, 200 Miss. at 559, 27 So. 2d at
892. The court granted a motion for a directed verdict upon the ground that no evidence was shown as to
the lack of skill and care exerted by the defendants. Id. The plaintiffs argued res ipsa loquitur, but the
Mississippi Supreme Court upheld the decision on appeal stating that there was no proof to show that the
required degree of care was not used. Id.

¶13. Generally, expert medical testimony is required unless a "layman can observe and understand
negligence as a matter of common sense and practical experience." Coleman v. Rice, 706 So. 2d 696, 698
(Miss. 1997). Thus, where the act or omission on the part of the doctor was plainly negligent the rule of res
ipsa loquitur applies, but the Mississippi Supreme Court has stated that the doctrine of res ipsa loquitur
should be cautiously applied. J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779 (1935). In
Sanders, the court went on to state that:

[T]he test, generally, is not that the result of the operation was unusual or unexpected, or even fatal,
alone and by itself, because, without an abnormal and rare end to operation, there would not exist an
occasion for an action in damages from it. 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. If there were such extraneous
interventions, then the doctrine of res ipsa loquitur would be applicable to call upon the defendant to
explain the matter, by evidence of exculpation, if he could. The jury would then decide the issue of
fact in the case.

Sanders, 200 Miss. at 561, 27 So. 2d at 892-93.

¶14. In the case at bar, we are constrained to hold that the doctrine of res ipsa loquitur does not apply.
The rhabdomyolysis is not clearly connected to any act, omission or instrument in control of the defendants.
Dr. Lamar's testimony indicates that the injury could have come about by various causes not in Dr. Lamar
or BMH's control, and the plaintiff does not refute this fact. Furthermore, the Austins did not show that Dr.
Lamar or the hospital staff deviated from the prerequisite standard of care. These issues are without merit.
II. WHETHER THE INJURIES SUFFERED BY PLAINTIFF TO A PART OF THE BODY
REMOTE FROM THE TREATMENT AREA IS NEGLIGENCE PER SE.

¶15. In an argument covering less than two pages and without citation to any authority or any medical
expert testimony the Austins maintain that since Mr. Austin was under anesthesia and in the exclusive care
of Dr. Lamar, any injury occurring to the leg outside of the operative site should be deemed negligence per
se. The Austins argue that the duty to prevent injury to Mr. Austin while he was unconscious was absolute
and any injury to an area remote from the operative site makes the doctor strictly liable. The Austins
maintain that the leg-holding device, the tourniquet and Mr. Austin were exclusively under the control of Dr.
Lamar; thus, any injury, especially an injury outside of the operative site, is Dr. Lamar's responsibility. The
Austins claim that the mere fact of the injury in such a situation signifies negligence on the part of Dr. Lamar.
The Austins further maintain that Dr. Lamar has the burden of explaining what happened to Mr. Austin's leg
since Mr. Austin was unconscious and Dr. Lamar is the only one who was capable of explaining how the
injury occurred. The Austins conclude that since Dr. Lamar did not or could not explain how the injury
occurred then he should be strictly liable for the injury to Mr. Austin's leg.

¶16. Because the Austins bear the burden of persuasion on appeal, this Court will not consider issues on
appeal for which the appellant cites no supporting authority. Read v. Southern Pine Elec. Power Ass'n,
515 So. 2d 916 (Miss. 1987); R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1023 (Miss. 1990)
. Therefore, we decline to consider this issue on appeal. We therefore affirm the summary judgment in favor
Dr. Wayne T. Lamar and Baptist Memorial Hospital-North Mississippi.

¶17. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING, P.J., BRIDGES, IRVING, LEE, AND PAYNE, JJ., CONCUR.
SOUTHWICK, P.J., CONCURS IN RESULT ONLY. MOORE, J., NOT
PARTICIPATING.