IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-01441-SCT
KEVIN BERRY
v.
ORA L. PATTEN, AS NEXT FRIEND OF BIANCA
PATTEN, SHADARRYL HARDNETT AND
MARIAH PATTEN
DATE OF JUDGMENT: 04/06/2009
TRIAL JUDGE: HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: L. CARL HAGWOOD
MARY FRANCES STALLINGS-ENGLAND
ATTORNEY FOR APPELLEES: WILLIAM C. WALKER, JR.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND RENDERED -12/16/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. Sheila Patten, who was being prepared for surgery by Kevin Berry, a Certified
Registered Nurse Anesthetist (CRNA), aspirated stomach fluids into her lungs, leading to her
death several weeks later. At issue in this wrongful-death suit is whether the plaintiff
produced sufficient evidence that Berry breached the standard of care required of a CRNA.
Because she did not, we reverse.
I. BACKGROUND
Factual Background
¶2. Sheila Patten underwent gastric-bypass surgery at Baptist Memorial Hospital in
Oxford, was discharged to go home, but returned to the emergency room late the following
night, complaining of abdominal pain, nausea, vomiting, and mild shortness of breath. Dr.
Mickey King, the surgeon on call, diagnosed her with a small-bowel obstruction – a known
complication of gastric bypass surgery – and admitted her to the hospital. The following
morning, Dr. King’s partner, Dr. James Robert Barnes, examined Sheila and scheduled her
for exploratory surgery later that day.
¶3. Dr. Keith Roller, a board-certified anesthesiologist, performed a pre-anesthesia
evaluation, and developed an anesthesia care plan calling for general anesthesia with rapid-
sequence induction – a method involving a sedative, quickly followed by injection of a
paralytic drug, cricoid pressure (pressure on the cartilage around the trachea to open the
airway), and intubation (the insertion of a tube into the trachea to maintain an open airway).
Dr. Roller’s anesthesia plan did not call for use of a nasogastric tube (NG tube).
¶4. In some surgical procedures, an NG tube is inserted through the nose into the stomach
to remove the stomach’s contents, reducing the risk that the patient will aspirate (regurgitate,
and then breathe into the lungs) the stomach’s contents. However, because of the risk that
an NG tube could rupture the sutures or staples in the stomach, allowing the stomach
contents and blood to leak into the peritoneal cavity, both Dr. King and Dr. Barnes strictly
prohibited the use of NG tubes on patients following gastric-bypass surgery; and as an extra
precaution, they had notations placed on these patients’ patient cards prohibiting the use of
NG tubes.
2
¶5. At the time Sheila’s surgery was to begin, the hospital – according to its normal
procedure – had a CRNA in each of its six or seven active operating rooms, all supervised
by three anesthesiologists. Sheila’s CRNA, Berry, was supervised by Dr. Fredrick Jones,
who was not in the operating room when Berry began to prepare Sheila for her procedure.
¶6. Sheila was placed on the operating table, the paralytic drug was administered, and a
nurse applied cricoid pressure. When Berry noticed fluid coming from Sheila’s nose,
indicating her stomach contents were coming up, he put a tube down into her lungs and
forced air through it, while a nurse called for help. Dr. David Huggins, an anesthesiologist
who was not on call, happened to hear the call for help and immediately responded, arriving
slightly before Dr. Jones.
¶7. Finding no problem with Sheila’s vital signs, breathing, or airways, Dr. Huggins
performed a pulmonary lavage to flush her lungs with saline solution, and then placed an
arterial line. With the help of a ventilator, Sheila began breathing again, and Dr. Barnes
proceeded with the surgery, clearing the small-bowel obstruction.
¶8. Following the surgery, Sheila was placed in a coma and remained in the intensive-care
unit for about a week. When her kidneys began to fail, she was transferred to a Tupelo
hospital and she began to improve, allowing the doctors to remove the ventilator and begin
dialysis. But after several weeks of treatment, she died.
Procedural Background
¶9. Sheila’s mother, Ora Patten – on behalf of Sheila’s three children – filed a wrongful-
death suit against the hospital,1 Dr. Barnes, Dr. Jones, and Berry. Before trial, the hospital
1
Baptist Memorial Hospital, North Mississippi, Inc.
3
and Dr. Barnes were dismissed from the suit. Following the trial, the jury returned a defense
verdict for Dr. Jones, but found for the plaintiffs against Berry, awarding damages of
$1,150,000.
¶10. Berry filed a Motion for Judgment Notwithstanding Verdict, Motion for a New Trial
or, Alternatively, Motion for Remittitur, suggesting the following errors:
• the jury’s verdict was improper and erroneous as a matter of law
against the overwhelming weight of the evidence;
• jury instruction P-6A did not conform to Mississippi law on negligence,
in that the instruction used terms that do not exist in medicine and
cannot be found in the record;
• the trial court erred in allowing the jury to consider damages when
heirship had not been determined and to consider damages for the
minors when no guardian had been appointed;
• the trial court erred in allowing the jury to consider damages for funeral
expenses, net present cash value and survival claims, as the plaintiffs
lacked capacity to claim these elements of damages;
• the trial court erred in allowing the reading of Dr. Richard Mackey’s
deposition in its entirety;
• the trial court erred in striking Juror 26, Bradley S. Knight, and
inserting Juror 27, Sheila R. Tyson, in his place when Juror 19, Louann
Hood, became ill; and
• the trial court erred in denying the defendant’s requested jury
instruction, D-15, when the plaintiffs’ expert witness, Dr. James Futrell,
affirmed, “These deviations caused a missed opportunity to prevent
and/or limit the occurrence of the aspiration that followed.”
¶11. The trial court denied Berry’s post-trial motion and he appealed, raising the issues
listed above.
II. ANALYSIS
4
¶12. Because Berry’s first two issues – which we analyze as a single issue – are dispositive,
we decline to address the others.
Standard of Review
¶13. Berry’s first two assignments of error, read together, claim that the plaintiff’s
standard-of-care instruction was an improper statement of the law, and that the plaintiff
produced insufficient evidence to establish that he breached the applicable standard of care.
Berry’s claim essentially challenges the trial court’s denial of his motions for directed
verdict2 and for judgment notwithstanding the verdict(JNOV), both of which required “the
trial court to test the legal sufficiency of the evidence supporting the verdict, not the weight
of the evidence.” 3
¶14. When a trial court denies these dispositive motions, and the issue is appealed here, our
standard of review requires us to
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
2
River Region Med. Corp. v. Patterson, 975 So. 2d 2005, 207 (Miss. 2007) (citing Twin
County Elec. Power Ass’n v. McKenzie, 823 So. 2d 464, 468 (Miss. 2002)) (“In reviewing denials
of motions for judgment notwithstanding the verdict, this Court uses the same standard as for
motions for directed verdict.”).
3
Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 63 (Miss. 2004) (citing Tharp
v. Bunge Corp., 641 So. 2d 20, 23 (Miss. 1994)).
5
standards of review, however, are predicated on the fact that the trial judge
applied the correct law.4
¶15. Our analysis begins with a review of the jury instruction that set out the standard of
care to be applied to Berry.
Jury Instruction P-6A
¶16. The trial judge, rejecting the plaintiff’s proposed standard-of-care instruction,
stated:
Now, during the break see if you gentlemen can get together and come up with
an instruction on the standard of care, a little more definite statement of it.
Let’s see what we can do, okay.
¶17. Following the lunch break, plaintiff’s counsel – after announcing that the lawyers
“didn’t agree on drafting anything together” – presented the following instruction:
This Court instructs the jury that the applicable standards of care alleged by
Plaintiff are as follows:
(1) Utilization of an NG tube;
(2) Fiberoptic induction;
(3) Presence of an anaesthesiologist in the OR at the time of induction;
(4) Use of the Trendelenburg position before induction;
(5) Use of the Trendelenburg position after the beige fluid was seen and
before intubation;
(6) Suctioning immediately after intubation rather than beginning
ventilation.
Therefore, if you find the standard of care to be any of the above and you
further find that such standard of care, if any, was breached and that such
breach proximately caused Sheila Patten’s death, then you must find for
Plaintiff and against any Defendant who you find breached the standard of
care.
4
Twin County Elec. Power Ass’n v. McKenzie, 823 So. 2d 464, 468 (Miss. 2002) (citing
Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709, 720 (Miss. 2001)).
6
¶18. Over Berry’s objection, the trial court agreed to give this instruction, which failed to
inform the jury of the burden of proof, failed to distinguish which alleged standard of care
applied to which defendant (one an anesthesiologist, and the other a CRNA), and failed to
relate the general phrases – “utilization of an NG tube” and “fiberoptic induction” – to the
facts or the defendants. As one example of potential misuse of the instruction, the jury easily
could have concluded that the “standard of care” required use of an NG tube, and because
Berry did not use one, that he breached the standard of care. This conclusion – justified
under the instruction – ignores the undisputed facts that use of an NG tube was not included
in the anesthesia plan, and that Berry was prohibited by the surgeon from using an NG tube.
¶19. Also, the first two items alleged to be “standards of care” were not only so general that
they provided little help to the jury, but, as to Berry, they were conflicting. The general
statement “utilization of an NG tube,” standing alone, is hardly a standard of care. And as
established by the plaintiff’s own expert, these two alleged “standards of care” are in fact
techniques used in entirely different anesthesia procedures. So if they both were “applicable
standards of care alleged by Plaintiff,” then the plaintiff, through the instruction, alleged that
both should have been done – a position not supported by any expert testimony.
¶20. In discussing general anesthesia with rapid-sequence induction – the anesthesia plan
ordered by Dr. Roller – the parties disagreed on whether an NG tube should have been used.
But no one – including the plaintiff’s expert – alleged “fiberoptic induction” should have
been used for the kind of anesthesia plan provided for Berry.
¶21. And conversely, “fiberoptic intubation” (according to plaintiff’s expert) is used in an
entirely different anesthesia plan, “in those situations where to paralyze the patient would
7
present the dangers that have now been presented.” But “use of an NG tube” and “fiberoptic
induction” could not both have been the standard of care for Berry because, regardless of
which anesthesia plan was followed, one of the standards of care would have been breached.
¶22. All of that said, this case must be reversed, because the plaintiff failed to produce
expert testimony that Berry had breached any of the six alleged standards of care.
1. Use of an NG Tube
¶23. The surgeons prohibited the use of an NG tube on patients (such as Sheila) who had
undergone gastric-bypass surgery. In fact, Sheila’s surgeon, Dr. Barnes, placed the following
notation on her patient-information card: “Under no circumstances can this patient ever have
a nasogastric tube placed.” Dr. Roller – the anesthesiologist who prepared the anesthesia
plan – did not include in the plan the use of an NG tube, and there is no evidence in the
record that Berry deviated from the anesthesia plan.
Dr. Richard Mackey
¶24. Dr. Richard Mackey, an anesthesiologist, provided the following testimony
concerning the use of an NG tube:
Q. Did Dr. Barnes have a . . . rule or unwritten rule pertaining to the use
of NG suction on a post gastric bypass small bowel obstruction?
A. Yes. That’s not necessarily an unwritten rule. That may actually be a
standard of care, that we don’t — if we know a person has had a gastric
bypass procedure, that we do not — particularly a [Roux-en-Y]
procedure, that we do not put an NG tube down.
Q. Okay. Now, if the surgeon . . . believed that necessary to be done,
would he order that and then supervise the NG suction?
A. Right.
8
Q. Okay. So as a rule, you wouldn’t do it until the surgeon asked for it or
ordered that?
A. Right. Correct.
Q. In the specific scenario of a post [Roux-en-Y] gastric bypass who came
back with a small bowel obstruction?
A. That is right.
...
Q. But you’re not going to say, “Well, whatever you say, Doc” . . . to the
surgeon?
A. Right.
Q. Because you have your own independent responsibility to protect the
patient from a catastrophic event, correct?
A. Correct.
Q. And so the anesthesiologist would be the one who would need to
participate in the sort of discussion with the surgeon because of the
difficulty of the situation?
A. Right.
¶25. Keeping in mind that the appellant before us is Berry, a CRNA, this expert testimony
establishes only that the surgeons prohibited use of NG tubes following gastric bypass
surgery, and exceptions to the rule could be made only where an anesthesiologist had
discussed the problem with the surgeon – which did not happen in this case. And since Berry
is a CRNA, not an anesthesiologist, this testimony has no application to him.
Dr. James Futrell
¶26. The plaintiff also called Dr. James Futrell, an anesthesiologist from Los Angeles, who
agreed that the placement of an NG tube in post-gastric-bypass patients poses a risk of
9
rupturing the surgical site, but testified that, in his opinion, not placing an NG tube poses a
greater risk of aspiration. Dr. Futrell disagreed with Dr. Barnes’s assessment that Sheila
should never have an NG tube, and he stated that the anesthesiologist responsible for Sheila’s
care should not have agreed to such a restriction:
Q. I want you to assume for me that her surgeons in this case had
instructed the anesthesiologist never to pass a nasogastric tube. I want
you to make that assumption for me. I want you to further assume that
the anesthesiologist considered the request of the surgeons and formed
an independent medical judgment as [an] anesthesiologist[] that this
was a valid medical request; and that they themselves were of the
opinion that a nasogastric tube should not be placed in this type of
patient. Making those assumptions, are you now of the opinion that Dr.
Jones or Kevin Berry or any of the other anesthesiologists were
neglect? [sic] . . . Doctor, making those assumptions, first, are the
surgeons negligent in your opinion and is the anesthesiologist for
forming this medical judgment and recommending this to the
anesthesiologist?
A. I think that any physician who would make such a statement as to
“never” and to state that under no circumstances should a patient ever
have a nasogastric tube, and to have an anesthesiologist responsible for
that patient's life, and for that patient's airway, giving that patient
dangerous paralytic drugs, to agree to that is a breach of the standard of
care.
¶27. While this testimony does allege that Dr. Barnes breached the standard of care by
ordering that an NG tube was “never” to be placed, and that Dr. Jones, the anesthesiologist,
breached the standard of care by agreeing to that order, it falls far short of establishing that
Berry, a CRNA, breached the standard of care by following Dr. Berry’s anesthesia plan, or
by following the surgeon’s orders not to place an NG tube. Moreover, Dr. Futrell testified
that even had an NG tube been placed, it would not have been Berry or Dr. Jones who would
have placed it:
10
Q. Doctor, let’s continue on. I think one of the things that you’ve testified
to was that the anesthesiologist could have conferred with the surgeon
over the placement of the NG tube, correct?
A. Yes, should have.
Q. And you believe should have. In fact, the anesthesiologist, I believe
you testified to in your deposition, should have called the surgeon down
and said, “You place the NG tube.”
A. Exactly.
¶28. Dr. Futrell later testified:
Dr. Jones is the anesthesiologist who is the attending and responsible
physician, and it was his responsibility to preoperatively evaluate this patient
after Dr. Roller and before, immediately before the induction of anesthesia and
to be in the room with the patient to manage this patient along with the nurse
anesthetist, Berry; and that is the breach of the standard of care; and that is the
anesthesiologist who is responsible.
¶29. So the most Dr. Futrell’s testimony established was that the anesthesiologist, Dr.
Jones, had a duty to summon Dr. Barnes and request him to place the NG tube, and that Dr.
Jones bore the responsibility to be in the room with Berry, and that Dr. Jones breached the
standard of care. The jury, in returning a verdict for Dr. Jones, rejected Dr. Futrell’s opinion.
¶30. According to the record before us, no expert established that the standard of care
applicable to Berry required “utilization of an NG tube,” or that Berry had breached any
standard of care with regard to the non-use of an NG tube.
2. Fiberoptic Induction
¶31. The second “standard of care” listed in the jury instruction was simply “fiberoptic
induction.” Berry correctly points out that “fiberoptic induction” is not a term that exists in
medicine and does not describe any recognized medical procedure. This is not in dispute;
11
plaintiff’s counsel admitted that he incorrectly included the term in his proposed instruction
– the correct term was “fiberoptic intubation” 5 – and suggests that this error might have been
“confusing” to the jury, except that counsel “pointed out” the error to the jury during closing
argument. But counsel’s closing argument is not evidence,6 and there was, therefore,
insufficient evidence to support a jury instruction alleging the standard of care to be
“fiberoptic induction.”
¶32. Even were we to accept appellees’ argument that the jury was adequately instructed
on “fiberoptic intubation,” there was no evidence to support a verdict against Berry on this
“standard of care.” Dr. Futrell provided the only testimony regarding fiberoptic intubation,
and the entirety of that testimony was as follows:
The other thing is that anesthesiologists, board certified
anesthesiologists, know of and are regularly trained and have been so for 10
or 15 years about the technique of fiberoptic intubation. This is a situation
where when you know that there are existing dangers to giving a patient a
paralyzing drug so that you only have seconds in order to find the proper
connection to the lungs rather than do that, rather than to paralyze the patient
and run that risk, what we do is simply use anesthetic agents, spray anesthetic
agents to numb the mouth and a little bit of a sedative medication to sedate the
patient just a little bit; but the patient is breathing on her own and has all of her
reflexes and has muscular control.
Under those circumstances using a fiberoptic light, which is a very thin
device, much thinner than the wire to this microphone, that you can pass
through and you actually move it and flex it, and you can pass this after
anesthetizing the patient’s nose and mouth into a breathing patient’s mouth and
pass it down into the breathing area into the trachea and slide the breathing
5
In the appellee’s brief, counsel stated: “Appellee’s attorney readily admitted and cured the
confusion that he was the idiot who put ‘induction’ in that section when in fact ‘intubation’ was the
word that should have been used.”
6
Mariner Health Care, Inc. v. Edwards, 964 So. 2d 1138, 1163 (Miss. 2007) (civil cases);
Henton v. State, 752 So. 2d 406, 409 (Miss. 1999) (criminal cases).
12
tube over it and below the cuff up and have complete airway control even
though the stomach is full.
This fiberoptic technique is well known. It has been well taught, and
in circumstances like this it is part of the standard of care in those situations
where to paralyze the patient would present the dangers that have now been
presented.
¶33. This testimony – specifically referring to anesthesiologists – is wholly insufficient to
establish a standard of care applicable to Berry. At most, Dr. Futrell opines that the standard
of care for anesthesiologists requires the use of fiberoptic intubation. Berry is not an
anesthesiologist. So this second “standard of care” erroneously allowed the jury to hold
Berry responsible for a standard of care that, under the evidence, was inapplicable to him.
3. Presence of an Anesthesiologist in the OR at the Time of Induction
¶34. To support a verdict against Berry for breach of this “standard of care,” the plaintiff
was required to produce expert testimony that Berry should not have proceeded to carry out
the anesthesia plan until an anesthesiologist was in the room. In that regard, Dr. Futrell was
asked: “Would you comment on whether or not starting this case with only a CRNA present
is a deviation from accepted practice?” Rather than answering the question directly, Dr.
Futrell began to explain the method used by hospitals to classify patients based on the
severity of their conditions. In the process, a dispute arose between the parties as to whether
Dr. Futrell was testifying to facts outside his knowledge (or misrepresenting the record) when
he stated that Berry had classified Sheila as a Class III patient.7 After concluding that it was
Dr. Roller who had classified Sheila, the following discussion took place:
7
Sheila’s ASC classification does not appear to be relevant to Kevin Berry’s duties toward
her. No further mention is made of ASC classification.
13
Q. Is there anything else about not having an anesthesiologist present at
the time of induction? How would the presence of an anesthesiologist
along with the CRNA make a difference?
A. It would make a difference in this circumstance because knowing the
condition of the patient and knowing about the possibility of the gastric
contents getting into the lungs as we have already discussed, it’s
important to have another set of hands, first of all, to be able to manage
suction and intubation, putting the tube into the lungs at the same time.
This is very messy, and you don’t have a lot of time, and so in these
circumstances where you can anticipate we commonly call another
person in to help with the situation. It’s not absolutely mandatory that
we do so, but prudent anesthesiologists do that.
¶35. This testimony says nothing of the standard of care required of Berry, and even
assuming that “not absolutely mandatory . . . but prudent” is sufficient to establish a standard
of care, Dr. Futrell was clearly testifying as to the duties of an anesthesiologist, not a CRNA.
4. Use of the Trendelenburg Position Before Induction
¶36. Item 4 in Jury Instruction P-6A read: “Use of the Trendelenburg position before
induction.” The entirety of Dr. Futrell’s testimony regarding the Trendelenburg position is
as follows:
I mentioned the need for a nasogastric tube, and I mentioned the need
to be sure that because of the prior surgery it was placed appropriately and
carefully so as not to cause a perforation and yet provide for the elimination
of the dangerous fluids that were in the stomach.
That circumstance should be associated with an understanding of what
happened and the position that the patient was in knowing that the nasogastric
tube was not used and knowing that the stomach was full of fluids. Then the
next appropriate thing that should have been done was that the patient should
have been placed in the Trendelenburg position, which is a position where the
patient, the bed, the operating table is moved and adjusted electrically such
that the patient’s head is lower than the patient’s stomach.
14
In that circumstance, knowing that the patient has something in their
stomach, and in an emergency situation without a nasogastric tube, knowing
that you have to paralyze the patient, if those fluids, as they did, present
themselves, water runs downhill and does not run uphill; and so since the head
is a little lower than the stomach, even if that fluid presents itself during the
period of time where the patient has to be paralyzed, that fluid will not run into
the lungs; and the anesthesiologist or the nurse anesthetist can get the
breathing tube in without contaminating the lungs with this, which is
essentially liquid bowel contents is what they are, into the lungs.
¶37. Dr. Futrell’s use of the passive voice makes his testimony unclear, especially when
considered together with the fact that another nurse and others were actually present with
Berry at the time of induction, and that Dr. Futrell had opined that an anesthesiologist should
have been present. In other words, Dr. Futrell offered no opinion as to who was responsible
for making sure the patient was placed in the Trendelenburg position. He provided no
testimony that the standard of care required Berry, as opposed to someone else, to put Sheila
in the Trendelenburg position, or that he had breached the standard of care in this regard.
5. Use of the Trendelenburg Position After the Beige Fluid was Seen
and Before Intubation
¶38. This item in Instruction P-6A apparently is drawn from testimony of Berry’s expert
witness, Dr. Claude Brunson, who gave the following testimony on cross-examination:
Q. But you do train them, if they see fluid coming, to put them in
Trendelenburg after they see the fluid; is that correct?
A. Yes, that’s one of the things we tell them is put their heads down and
suction the fluid out. What that does is whatever is around it gets into
a particular place so we can suction it all out.
Q. In this case the patient should have been put in Trendelenburg because
everybody who notes in the record that this brown fluid comes out her
nose, correct?
15
A. Yeah. That would be something to think about is putting her in
Trendelenburg. We would teach them in that circumstance put them in
a head down position, suction it out; and immediately as soon as you
can intubate them. That’s going to keep something from going into the
trachea. We need to get the endotracheal tube and the cuff up.
Q. You teach them when you see the brown stuff coming out, put them in
Trendelenburg and suction.
A. Yes.
Q. And then intubate?
A. You suction the fluid out and put the tube in immediately.
Q. Thank you, Doctor. If that didn’t happen, that would be a deviation
from accepted practice, wouldn’t it, Doctor?
A. You know—
Q. Can you answer that question directly yes or no, and then explain?
A. Well, it wouldn’t necessarily be a deviation from the standard of care.
The reason why is you’ve got a trained professional there assessing
everything that’s going on. They are seeing fluid come back. They can
put the patient in Trendelenburg and suction it out and put the
endotracheal tube in. It depends on how quickly things happen in that
finite period of time as you are making a quick medical decision about
what is best for your patient. So when you are asking about you should
do this, this, and this every time one hundred percent of the time in this
circumstance on a patient, then you are taking away the provider’s
ability to make quick judgment that the patient needs to have made.
¶39. This testimony is insufficient to establish that Berry breached the standard of care.
Neither Dr. Brunson nor any other expert offered any opinion that he did. Also, even if the
testimony establishes a standard of care, it does not state whose duty it was in this particular
instance to put the patient in this position.
6. Suctioning Immediately After Intubation Rather than Beginning
Ventilation
16
¶40. None of the expert witnesses discussed “ventilation” in these terms. After carefully
reviewing the transcript, it appears likely this instruction was based on the following
testimony from Dr. Futrell:
The first thing to do then, if you have time in such a circumstance
where you now know that aspiration of content has occurred, is to attempt to
suction some of that fluid out of lungs before you give the first breath because
when you give the first breath, you are going to push air into the lugs; and you
are going to push all of that fluid and contents deep into the lung fills where
it cannot be suctioned where it can do all the bad things we already discussed.
That was not done; and so since that was not done, then the opportunity
— and it’s something that can be done in a few seconds; and if the oxygen
saturation or oxygenation of the patient is too low, you may not have time to
do it because you are about to lose the patient; but because of the testimony
that the oxygenation was not that low, there was time to do it in my opinion;
and it was not done; therefore, even as to the amount of fluid and bowel
contents that were allowed to get into the lungs, there was an opportunity
missed there to decrease that amount of fluid.
¶41. Based on this testimony, it seems that item 6 in Instruction P-6A suggested that the
standard of care required that, once the patient was intubated, the aspirated fluid be suctioned
from the patient’s lungs before beginning ventilation. But this is far from clear. The expert
testimony—particularly from Dr. Futrell—made frequent reference to “suction” in the
context of using an NG tube to suction out the stomach contents before induction. This is
a completely different procedure, and the intended context of “suctioning” is not clear from
the wording of the instruction.
¶42. For example, the following testimony, also by Dr. Futrell, also could fit within the
instruction:
Q. So, let’s be sure that we understand. The standard of care in this case,
as you’ve testified to, was the placement of a nasogastric tube to, as you
17
say, suction out the stomach contents followed by the placement of a
fiber optic scope followed by awake intubation?
A. I didn’t discuss that sequence. I discussed those things that I think
could have been done to prevent this deadly occurrence.
¶43. This exchange also refers to a sequence of steps involving use of an NG tube for
suctioning and intubation. The wording of item 6 does not make clear which procedure is
being referenced. This item therefore renders the instruction vague and confusing, especially
in light of the fact that the instruction uses a technical medical term (“ventilation”) which was
not used or defined by any expert witness nor by other jury instructions.
CONCLUSION
¶44. This lawsuit appears to have been aimed at Dr. Jones, the anesthesiologist, who
obtained a defense verdict from the jury. In fact, the plaintiffs proposed a jury instruction
that would have allowed the jury to hold Dr. Jones vicariously liable for Berry’s negligence,
if any. This theory is reflected in the plaintiffs’ examination of expert witnesses where the
questions and answers were focused on the duties of anesthesiologists. No expert ever
testified that Berry had failed to meet the standard of care of a minimally competent CRNA.
¶45. After careful review of the record, we find the trial court erroneously denied Berry’s
motion for directed verdict, and for judgment notwithstanding the verdict. Plaintiffs in a
medical-malpractice action must establish through expert testimony not only the relevant
standard of care, but the manner in which the defendant breached it. In this case, the
plaintiffs failed to establish through expert testimony a CRNA’s standard of care, or that
Berry had breached it. Accordingly, the judgment of the Circuit Court of Lafayette County
is reversed and rendered.
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¶46. REVERSED AND RENDERED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
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