CASE NO CA IN THE SUPREME COURT OF MISSISSIPPI

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1 E-Filed Document Jan :43: CA Pages: 14 CASE NO CA IN THE SUPREME COURT OF MISSISSIPPI WILLIAM HENSON, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF BONITA G. HENSON AND THE ESTATE OF BONITA G. HENSON APPELLANTS V. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER GRENADA; GRENADA LAKE MEDICAL CENTER; AND JOHN DOES 1-10 APPELLEES On Direct Appeal to the Supreme Court of Mississippi BRIEF OF APPELLANT WILLIAM HENSON, et al. ORAL ARGUMENTS REQUESTED CARLOS E. MOORE, MBN# MOORE LAW GROUP, P.C. P.O. BOX 1487 GRENADA, MS Attorney for the Appellant

2 CERTIFICATE OF INTERESTED PERSONS William Henson et al. v. University of Mississippi Medical Center Grenada; Grenada Lake Medical Center; and John Does CV-L: The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28(a)(1) have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. William Henson et al. University of Mississippi Medical Center Grenada; Grenada Lake Medical Center Carlos E. Moore Robert J. Dambrino Ashley Lane Joseph H. Loper, Jr. Appellant Appellees Attorney for the Appellants Attorneys for Appellee Grenada Lake Medical Center Circuit Court Judge /s Carlos E. Moore Carlos E. Moore Attorney of Record for Appellants 2

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS 2 TABLE OF CONTENTS..3 TABLE OF AUTHORITIES 4 STATEMENT OF THE ISSUES.5 STATEMENT OF THE CASE.6-7 SUMMARY OF ARGUMENT.8-9 ARGUMENT 9-13 I. The Circuit Court erred in granting Summary Judgment to Appellee Grenada Lake Medical Center 9-13 CONCLUSION...13 CERTIFICATE OF SERVICE..14 3

4 TABLE OF AUTHORITIES MISSISSIPPI SUPREME COURT CASES Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989)...9 Drummond v. Buckley, 627 So. 2d 264, 267 (Miss. 1993) Green v. Allendale Planting Co., 954 So. 2d 1032, 1037 (Miss. 2007)..9 Jackpot Mississippi Riverboat, Inc. v. Smith, 874 So.2d 959 (Miss. 2004).9 Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170 (Miss. 1992)...9 McCullough v. Cook, 679 So.2d 627 (Miss. 1996)..9 Mississippi Dept. of Wildlife, Fisheries and Parks v. Mississippi Wildlife, 740 So.2d 925 (Miss. 1999).9 Palmer v. Biloxi Regional Medical Center, 564 So. 2d 358, 364 (1983) 9 Price v. Purdue Pharma Co., 920 So. 2d 479, 483 (Miss. 2006) 9 Rawson v. Jones, 816 So. 2d 367, 369 (Miss. 2001)...10,11 Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So. 3d 1244 (Miss. 2002).10 Vaughn v. Baptist Medical Center, 20 So. 3d 645 (Miss. 2009)..12 SECONDARY SOURCES Miss. R. Civ. Proc., Rule 56(c) 9 4

5 STATEMENT OF THE ISSUES I. Issue 1 Whether there are genuine issues of material fact in the case that preclude the granting of Summary Judgement in favor of Appellee Grenada Lake Medical Center. 5

6 STATEMENT OF THE CASE This is a personal injury case on appeal from an Order of the Circuit Court of Grenada County, erroneously granting summary judgment to Appellee Grenada Lake Medical Center. On or about June 30, 2013, Bonita Henson, while being hospitalized at Grenada Lake Medical Center ( Appellee GLMC ), sustained multiple injuries due to the negligence of Appellee GLMC. Specifically, Appellee GLMC negligently allowed Bonita Henson to fall and fracture her left ankle, requiring transfer to Baptist Memorial Hospital North Mississippi. Mrs. Henson was also negligently allowed to develop an infection in her wound as shown in the July 3, 2013, Operative Report from Baptist Memorial Hospital North Mississippi, which documented the presence of feces and blood blisters beneath the wrapping placed on Mrs. Henson s ankle by Appellee GLMC. As a result, Mrs. Henson underwent a lengthy hospitalization, surgery to repair her ankle fracture, and ultimately underwent amputation of her left leg below the knee on August 8, As a result, suit was filed May 6, On April 7, 2015, Appellee filed a Motion for Summary Judgment, alleging Plaintiffs could not meet their burden of proving a causal nexus between the negligent medical treatment of the Defendants, and Mrs. Henson s injuries. Plaintiffs stated that there were genuine issues of material fact regarding whether the nurses negligence in failing to prevent Mrs. Henson s fall, proximately caused her fall and/or contributed to Mrs. Henson s pain and suffering during her hospitalization. On June 11, 2015, the 6

7 Circuit Court of Grenada, County entered an Order, granting Appellee GLMC s Motion for Summary Judgment. [Doc. 2]. Appellants timely filed their appeal on June 18, [Doc. 3]. Now, Appellants prepare this brief and respectfully requests that this Honorable Court reverse the Circuit Court of Grenada County s order granting summary judgment in favor of Appellee GLMC, and remand the matter to the Circuit Court of Grenada County for further proceedings. 7

8 SUMMARY OF THE ARGUMENT The Circuit Court of Grenada County erred in granting Appellee GLMC s Motion for Summary Judgment. There are issues of material fact regarding whether Appellants have met their burden of establishing the proximate cause of Bonita Henson s injuries. Appellants designated Rita Wray ( Wray ), RN as an expert to testify on nursing standards and procedures. Appellees alleged that Rita Wray, RN was not qualified to testify as to medical negligence. The Order granted by the Circuit Court of Grenada, County, quoted the Court in Vaughn v. Baptist Medical Center, stating that a nurse should not be permitted to testify as to the cause of a particular infectious disease or illness. 20 So. 3d 645 (Miss. 2009). However, the assumption that Wray was designated to speak to medical negligence is misplaced and erroneous. Wray was designated to speak to nursing negligence, to which she is more than qualified to speak. This matter arises out of Bonita Henson sustaining a fall, while under the care of the nurses at Defendant Grenada Lake Medical Center (Defendant GLMC). While being weighed on a standing scale, the nurses of Defendant GLMC negligently allowed Mrs. Henson to fall, causing her to sustain injuries. Said nurses also negligently cared for the wound on Mrs. Henson s ankle, and she was subsequently required to undergo amputation of her left leg. Wray s expert testimony is being offered to establish proximate causation of the nursing negligence, which led to Mrs. Henson s fall. Her testimony is not being offered to establish medical causation or diagnosis. Furthermore, a fall is not a medical diagnosis. The Complaint specifically asserts claims for nursing negligence in paragraphs

9 It is for these reasons that Appellants respectfully request that this Honorable Court reverse the Circuit Court of Grenada County s order granting summary judgment in favor of Appellee GLMC, and remand the matter to the Circuit Court of Grenada County for further proceedings. ARGUMENT STANDARD OF REVIEW The appellate court employs a de novo standard of review of a lower court's grant or denial of summary judgment and the evidence must be viewed in the light most favorable to the party against whom motion for summary judgment has been made. Jackpot Mississippi Riverboat, Inc. v. Smith, 874 So.2d 959 (Miss. 2004) citing Mississippi Dept. of Wildlife, Fisheries and Parks v. Mississippi Wildlife, 740 So.2d 925 (Miss. 1999); McCullough v. Cook, 679 So.2d 627 (Miss. 1996); Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170 (Miss. 1992); Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989); Rules Civ. Proc., Rule 56(c). Summary Judgment is appropriate when there is no genuine issue of material fact. Miss. R. Civ. P. 56(c). I. WHETHER THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT PRECLUDE THE GRANTING OF SUMMARY JUDGMENT IN FAVOR OF APPELLEE GLMC. The Grenada County Circuit Court erred in granting summary judgment in favor of Appellee GLMC, for Appellants failure to establish an essential element of their claim. Appellees stated that the testimony of Wray was not admissible because she was not permitted by law to speak to causation based on medical negligence. However, Wray was designated to speak to nursing negligence, to which she is more than qualified. 9

10 Summary judgment should only be issued where the moving party successfully demonstrates to the Court that no genuine issue of material fact exists from the record and he is entitled to judgment as matter of law. Palmer v. Biloxi Regional Medical Center, 564 So. 2d 358, 364 (1983). When a court reviews a motion for summary judgment, [t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made. Price v. Purdue Pharma Co., 920 So. 2d 479, 483 (Miss. 2006). Issues of fact sufficient to require denial of a motion for summary judgment are obviously present where one swears to one version of the matter in issue and another party takes the opposite position. Green v. Allendale Planting Co., 954 So. 2d 1032, 1037 (Miss. 2007). To have power to generate a genuine issue of material fact, the affidavit or otherwise (e.g., depositions and answers to interrogatories) must: (1) be sworn; (2) be made upon personal knowledge; and (3) show that the party providing the factual evidence is competent to testify. Drummond v. Buckley, 627 So. 2d 264, 267 (Miss. 1993). Here, there are genuine issues of material fact regarding whether Appellants established all the required elements for a negligence claim. This matter is analogous to Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244 (Miss. 2002). In Richardson, Linda Richardson, the daughter of Vivian Wheeless, filed a personal injury and wrongful death action against Methodist Hospital of Hattiesburg, Inc., now known as Wesley Health Center, alleging that Wheeless died as a result of Wesley Health Center's negligent failure to provide adequate care. Richardson, 807 So.2d 1244, Summary judgment was granted to Wesley Health Center. Id. The Mississippi Supreme Court found there was a genuine issue of material fact concerning 10

11 whether negligent nursing care caused or contributed to the decedent's pain and suffering during her hospitalization. The same should be held here. Furthermore, in Richardson, Linda Richardson's expert was Crystal D. Keller, a Registered Nurse and Certified Legal Nurse Consultant, who was designated to testify to the appropriate nursing standards of care and deviations therefrom committed by the hospital staff. Id. In her report, Keller set out, in detail, areas of failure attributable to the nursing staff at Wesley, which included: failure to monitor adequately; failure to inform physicians of significant changes in the patient's status; failure to follow physician's orders; failure to safeguard adequately; failure to provide adequate care; failure to document properly, accurately, and consistently; failure to assess and reassess adequately; failure to implement an appropriate plan of care; failure to evaluate the patient appropriately; failure to use critical thinking in the nursing process; and failure to assess adequately the patient's risk for injury. Id. Keller also opined that the deviations from the requisite standard of nursing care led to Wheeless's suffering and subsequent death. Id. Here, Wray has set forth similar opinions and findings with regard to the negligence of the nursing staff at Defendant GLMC. In her written opinion, Wray specifically opines that the nursing staff: failed to provide adequate safety measures to prevent an injurious fall and failed to provide appropriate wound care to prevent limb amputation. See Exhibit B. Wray also opines that the significant nursing actions failure to provide adequate safety measures and the failure to provide appropriate wound care - were inconsistent with her needs and failed to meet the standard of care required in the field of nursing. Id. Here, the opinions rendered by Wray almost mirror those set 11

12 forth by the nursing expert in Richardson, who also did not specify how the nurses failed; yet, the Mississippi Supreme Court held that said opinions were admissible and sufficient to preclude summary judgment. All that is required is a demonstration of a genuine issue of material fact. Here, as in Richardson, the genuine issue of material fact is whether the nurses negligence in failing to prevent Mrs. Henson s fall, proximately caused her fall and/or contributed to the Mrs. Henson s pain and suffering during her hospitalization. Therefore, Wray s opinions are admissible and this Honorable Court must reverse the judgment and remand to the Circuit Court of Grenada County. It should be noted that there has been at least one dissenting opinion regarding whether nurses or nursing experts absolutely cannot testify as to medical causation. In Vaughn v. Baptist Medical Center, 20 So.3d 645 (Miss. 2009), the dissenting opinion provides in pertinent part: I respectfully disagree with the majority's holding that, without exception, nurses cannot testify as to medical causation. Maj. Op. at 20. It likely is true that some nurses may not possess the requisite expertise to recognize the cause-and-effect relationship between conditions in a patient's environment, or particular kinds of harm that a patient may have experienced, and resulting diseases or maladies that occur in consequence of those conditions or events. However, the issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-bycase inquiry than by a broad, one-size-fits-all judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast rule that permanently forecloses the possibility of any nurse's being qualified to give expert testimony on medical causation in any and all cases that may arise in the future. Summary Judgment should not have been granted, and the trial court s ruling must be reversed. 12

13 CONCLUSION For the foregoing reasons, the Appellants, William Henson et al., are asking this Honorable Court to reverse Grenada County Circuit Court s granting of summary judgment, and to remand the case to the Grenada County Circuit Court, as there exists genuine issues of material fact that should be decided by a jury. Respectfully submitted, this the 13 th day of January, Of Counsel: MOORE LAW GROUP, P.C. P.O. BOX 1487 GRENADA, MS /s Carlos E. Moore Carlos E. Moore, MB # Attorney for Appellants 13

14 CERTIFICATE OF SERVICE I, the undersigned, Appellant s attorney, do hereby certify that I have this day served via MEC system, a true and correct copy of the above and foregoing document to: Robert J. Dambrino, III, Esq. Ashley Lane, Esq. GORE, KILPATRICK & DAMBRINO, PLLC P.O. Box 901 Grenada, MS Counsel for Grenada Lake Medical Center Honorable Joseph H. Loper Circuit Court Judge P.O. Box 616 Ackerman, MS THIS, the 13 th day of January, /s/ Carlos E. Moore Carlos E. Moore, Esq. 14