IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-00941-SCT MEMORIAL HOSPITAL AT GULFPORT

v. BARRY G. WHITE DATE OF JUDGMENT: 01/16/2014 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS, JR. TRIAL COURT ATTORNEYS: BEN F. GALLOW A Y, III JOE SAM OW EN ROLAND F. SAMSON, III THOMAS L. CARPENTER, JR. MICHAEL STEPHEN McGLOTHEREN COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: ROLAND F. SAMSON, III MATTHEW FORTE POW ERS ATTORNEYS FOR APPELLEE: BEN F. GALLOW A Y, III JOE SAM OW EN NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 07/30/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. I n t

h i s m edical-negligence lawsuit brought against Mem orial Hospital at G ulf port, the circuit judge entered a judgm ent f or the plaintif

f , Barry G. W hite. O n a p p e a l , Mem orial attacks W hite’s expert witnesses’ testim ony , claim ing they f ailed to p r o v i d e m edical literature to support their opinions. Because they were not required to do so, we af f irm

.FACTS AND PROCEDURAL HISTORY

¶2. On August 8, 2009, at approxim ately 8:00 a.m ., W hite arr i v e d a t H a ncock Medical Center’s em ergency room , suf f ering f rom slurred speech and tingling in his extrem ities. But af ter a CT scan cam e back negative f or any acute intracranial f

indings, he was released. ¶3. The next day , W hite experienced slurred speech and lef t-sided num

bness, so he went
to Mem orial Hospital’s em ergency room at approxim ately 2 :07 p.m ., and advised the nurses that he thought he was having a s t r o k e . Af ter being diagnosed w ith lef t-sided tingling/hy

pertension, he was given Norvasc f or blood pressure, instructed to f o llow up with his personal phy sician during the week, and discharged. ¶4. The f

ollowing day , W hite returned to Hancock M edical Center’s e m ergency room at approxim a tely 3:57 a.m ., c om plaining that he had f

allen a bout a n hour earlier. He inf orm ed the m edical personnel that he c ould not m ove his lef t u pper or lower e x trem ities and that he had dif f iculty speaking. He was then transported t o Mem orial Hospital, where h e arrived and

was adm itted at approxim ately 6 :29 a.m . A CT scan s howed no acute i ntracranial f indings, but on August 1 1 , 2 009, an MRI showed a com p leted stroke. On August 1 4, 2009, W hite

was adm itted to P h y sical Medicine and Rehabilitation, where he rem a ined until he was discharged on Septem

ber 15, 2009. W hite then u nderwent approxim ately f o ur to f ive m onths of out-patient occupational therapy , speech therapy , and phy sical therapy

. ¶5. W h ite then f

iled this m e dical m alpractice action in the Harrison C ounty Circuit Court, claim ing t hat Hancock Medical Center and Mem orial Hospital f ailed to provide the correct

2diagnosis. He alleged that, had he received t he appropriate treatm ent, the com pleted stroke could have b een prevented. W hite settled with Hancock prior to trial, leaving o nly his claim against Mem orial. ¶6. Bef

ore t rial, Mem orial m oved f or sum m a ry judgm ent and to exclude t he testim ony of
W h ite’s m edic a l experts, Dr. Bry an Barrilleaux and Dr. Terry Millette, arguing that their opinions o n me d i cal causation should be excluded because t hey were not s upported by

m edical l iterature or peer-reviewed studies. Af t er hearing argum ent f

rom the parties, the circuit judge took the m otion under advisem ent. ¶7. A t t r i a l , Wh i t e o f f e red t estim ony f

rom Drs. Barrilleaux and M illette, who b o t h testif i ed that, had W h ite been adm itted as an i n patient to Mem orial on August 9, 2009, he would have had a reasonable p robability —m o re than a f

if ty -percent chance—of s u

bstantial im p rovem ent. Mem orial of f ered expert testim ony f

rom D r. Hartm

u t U s chm ann that supported only a “sm a ll chance,” o r possibility of a substantially better outcom e. The circuit judge entered a judgm ent f or W hite. ANALYSIS ¶8. Mem orial Hospital presents f our issues on appeal:
I. W hether the trial court e r r e d i n not excluding t he testim ony of Drs. Barrilleaux and Millette at trial.
II. W hether the trial court erred by d eny ing the Mem orial Hospital’s posttrial Motion to Dism iss p ursuant to Mississippi R ule Civil Procedure 41(b), notwithstanding that W h ite’s m e dical experts’ o pinions on causation were at o dds with m e dic a l literature and based solely on personal experience.
3III. W hether the trial court’s Opinion and Judgm ent and Final Judgm ent was against the substantial, credible, and reasonable evidence on the issue of m e dical causation.
IV. W hether the trial court erred i n deny i ng the Mem orial H ospital’s posttrial m otions to Alter or Am e n d Fin d i n g s o f Fact and Conclusion of Law and Judgm ent, to Alter or Am end Judgm e n t, or alternatively , f or a New Trial. ¶9. The substance of each claim of error p r e s e n t s t h e s a me b a sic question: whether

m edical experts m

u st provide m edical literature or peer-reviewed studies to s upport the opinions they provide. Essent i a l l y , Mem orial argues that either the trial judge erred by f ailing to exclude Wh i te’s expert testim ony because the experts f a iled to provide m edical literature w ith their reports or t hat W hite f ailed to prove causation f

o r the sam e reason. W e disagree. ¶10. To prevail in a m e dical-m alpractice case, the plaintif f m ust prove (1) that there was “a duty by the def

endant to conf

orm t o a specif

ic standard of conduct f

or the p rotection of others against an u nreasonable risk of injury ; (2) a f ailure to co n f

o r m to t he required standard; a nd (3) an injury to the plaintif f proxim a tely caused by t he breach of such duty by the def endant.” 1 T o prove “these elem ents in a m edical m alpractice suit, e xpert testim ony

m ust be used,” 2 and the expert m ust articulate and identif

y the standard of care that was breached a nd establish that t he breach “was the proxim ate cause, or proxim ate contributing

1 Hubbard v. W

a n sley , 9 54 So. 2d 951, 956-57 (Miss. 2007) ( c i tin g D ru m m o n d v. B u ck ley , 6 2 7 S o . 2 d 2 6 4 , 2 6 8 (M iss. 1 9 9 3 )).

2 Hubbard , 954 So. 2d at 9 5 7

. 4cause, of the a l l eged injuries.” 3 “Our well-settled standard of review f or the adm ission or suppression of evidence is a b use of discretion.” 4 “[ T]he adm ission o f expert testim ony is within the sound d iscretion o f the trial judge.” 5 And we will not reverse a trial court based on an erroneous evidentiary ruling “unless a substantial right of the party is af f ected.” 6 ¶11. Mississippi law recognizes the l e g a l t heory of the “loss of a c hance,” which W hite utilized in this case. 7 To recover under this theory , t he plaintif f m ust prove t hat, b ut f

or the phy sician’s negligence, 8 h e or she had a reasonable probability of a substantial im provem ent. A p laintif f cannot recover by showing a m e re possibility of a “chance of recovery .” 9 Stated another way , the plaintif

f m u st of f er proof of “a greater than f i f ty (50) percent chance of

a better result than was in f act obtained.” 10

3 Id . (citin g B a rn e r v. G o rm a n , 6 0 5 S o . 2 d 8 0 5 , 8 0 9 (M iss. 1 9 9 2 )).

4 M i s s . T r a n s p . C o m m ’n v. M

cL em o re , 8 6 3 S o . 2 d 3 1 , 3 4 (M iss. 2 0 0 3 ) (citin g H a g g erty v. F

o ster , 8 3 8 S o . 2 d 9 4 8 , 9 5 8 (M iss. 2 0 0 2 )).

5 M cL em o re , 8 6 3 S o . 2 d a t 3 4 (citin g P u ck ett v . S ta t e , 7 3 7 S o . 2 d 3 2 2 , 3 4 2 (M iss. 1 9 9 9 )).

6 M iss. R . E v id

. 1 0 3 (a).

7 C la yto n v. T h o m p so n , 4 7 5 S o . 2 d 4 3 9 , 4 4 5 (M iss. 1 9 8 5 ).

8 Id . 9 Id . 10 H u b b a rd , 9 5 4 S o . 2 d at 9 6 4 (q u o tin g L a d n er v. C a m p b e ll , 5 1 5 S o . 2 d 8 8 2 , 8 8 9 (M iss. 1 9 8 7 )). 5¶12. W h ite’s e xper t s p r o v i d e d t

h e t e s t i m o n

y n e c e s s a ry to satisf

y these standards. Mem orial does not c hallenge that f act but argues i nstead that the experts did not provide m edical literature that c onf

irm s their testim ony . But, under our precedent , me d i c a l experts are not
req u i r e d t o s u p p ort their opinions with m edical literature. 11 W e did state i n Hill v. Mills 12
that “when an e x p e rt (no m atter h ow qualif i ed) renders an opinion that is attacked as not accepted w ithin the scientif ic com m unity , the p arty of

f ering t hat expert’s opinion m ust, at

a m i nim u m , present the trial j udge with some e v idence indicating that the of f ered opinion has

som e degree of acceptance in t he scientif ic com m unity .” 13 But we m ade it clear that we were
not creating a requirem ent tha t an expert’s opinion be supported b y peer-reviewed literature. 14 Inde e d , w e s tated that we were not retreating f rom our r uling i n P oole, where

we held that peer-reviewed l iterature and publications a r e not absolutely required, and their absence does not constitute autom atic inadm issibility

. 15 ¶13. Here, Mem o rial did not challenge the opinions of W h ite’s experts as contrary to the scientif ic com m u nity

. A nd it did not present m e dical literature that contradicted the opinions of W hite’s experts. R ather, this case presents nothing m ore than a classic exam ple of a

11 Poole v. Avara , 908 So. 2d 716, 724 (Miss. 2005).

12 H ill v. M ills , 2 6 S o . 3 d 3 2 2 (M iss. 2 0 1 0 ).

13 Id . at 3 3 1 (em

p h asis ad d ed )

. 14 Id . at 3 3 2

. 15 Id . (citin g P o o l

e , 9 0 8 S o . 2 d at 7 2 4 ).

6“battle of the experts.” 16 W hite presented experts who supported a reasonable probability of

a substantially better outcom e, w hereas Mem orial of f ered expert testim ony that supported only a potential chance of a s ubstantially better o utcom e. And as we c onsistently have held, the f act-f inder—in this case, the trial j udge—determ ines the winner of a battle o f experts. 17
CONCLUSION ¶14. Because W hite’s e xperts satisf ied the requirem ents of t he “loss of a c hance” doctrine, and because they w ere not required to provide m edical literature to support their testim ony , we af f irm the judgm ent of

the Circuit Court of

Harrison County

. ¶15. AFFIRMED. WALLER, C.J . , RANDOLPH, P.J., L A M AR, KITCHENS, C HANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

16 H ill , 2 6 S o . 3 d at 3 3 0

. 17 Id . 7