IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01141-COA OTIS FIPPS APPELLANT

v. GREENWOOD LEFLORE HOSPITAL APPELLEE DATE OF JUDGMENT: 07/05/2016 TRIAL JUDGE: HON. RICHARD A. SMITH COURT FROM W HICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CARLOS EUGENE MOORE ATTORNEYS FOR APPELLEE: TOMMIE GREGORY W ILLIAMS JR. TOMMIE G. W ILLIAMS HARRIS FREDERICK POW ERS III NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 02/06/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND GREENLEE, JJ. LEE, C.J., FOR THE COURT: ¶1. In this m edical-m a lpractice case, we m ust d eterm i ne whether the trial court erred in excluding the t estim ony of O tis Fipps’s m edical expert, which resulted i n the dism issal of Fipps’s suit against G reenwood Lef lore Hospital (the Hos p i tal). 1 Finding no error, we af f irm

. PROCEDURAL HISTORY AND FACTS ¶2. O n J une 12, 2012, Fipps underwe n t a n e s o p h a g o g a s t r o d u o d e n o s c o p y ( E G D )

1 In ad d itio n to t h e H o sp ital, F ip p s in itially s u ed D r. T h o m as C alv it in h is in d iv id u al cap acity an d G reen w o o d G astro en tero lo g y C en ter. B o t h D r. C alv it an d G reen w o o d G a stro en tero lo g y C en ter w ere u l tim ately d ism issed f

ro m th e law su i t.procedure perf orm ed by Dr. Thom as Calvit at the Hospital. According to Dr. Calvit, Fipps had c om plained of epigastric pain in both h is lef t and right l ower quadrants, dy s phagia (dif f iculty swallowing), r ectal bleeding, and constipation. Fipps also told Dr. Calvit that he possibly ingested a sm all piece of p lastic s everal d ay s prior t o his initial appointm ent. During the EGD, Dr. Calvit perf

o r m ed an esophageal dilatation 2 to treat Fipps’s dy sphagia. Fipps claim s t his procedure caused a perf oration of his esophagus, l e a d i n g to f urther m edical

com plications including a neck abscess and two additional surgeries. ¶3. Fipps designated Dr. My ron Stokes, a general s urgeon, a s a n e x p e r t “ i n s u r g ery regarding upper and lower g a strointe stinal issues.” In his af f idavit attached to the designation, Dr. Stokes stated that “the perf orm ance o f esophageal dilatation [ during Fipps’s
EGD procedure] was not proven to be in d i c a t e d i n a ny of Dr. Calvit’s pre-operative or intraoperative f

i ndings, thus constituting a deviation f rom the standard of

care expected of

a phy sician in Dr. Calvit’s p rof ession and specialty .” D r . S t o kes f urther opined that the esophageal “dilatation was t he initiating event that led to Fipps developing a f i s tula with resultant neck abscess requiring two additional surgeries.” Dr. Stokes was deposed several

m onths later. ¶4. Base d u p o n D r . Stokes’s d eposition, the H ospital f iled three pretrial m otions. The f irst a s ked the trial c ourt t o e xclude the p ortions of D r. Stokes’s testim ony regarding inf orm ed consent. The second asked the trial court to exclude any potential t estim o ny by Dr. Stokes t h a t h i s me d ical license was current o r that he had never been disciplined by any

2 T h is p ro c ed u re is also ref erred to as an eso p h a g eal d i latio n in th e reco r d

.

2m edical licensure board. 3 The t hird asked t he trial cour t t o exclude Dr. S tokes’s expert

opinion because he lacked the appropriate qualif ications to testif

y . ¶5. The t rial court conducted a hearing on t he H ospital’s m o tions, u ltim ately granting all three. The ef

f ect o f these rulings resulted in t he exclusion o f Dr. Stokes’s deposition. 4 Af ter granting the Hospital’s m otions, t he trial court a sked Fipps to call hi s f i r s t witness. Since Fipps had no w itness other t han D r . Stokes, Fipps rested. The Hospital then r equested a dism issal pursuant to Mississippi Rule of Civil P rocedure 41(b). F inding that Fipps could

not m e et h is burden without expert testim ony , the trial court g ranted the Hospital’s m otion.
DISCUSSION
I. Ex p ert Testim ony ¶6. Fipps f

irst argues t hat Dr. Stokes was qu a l i f i e d t o o f f er his opinion regarding the standard of care applicable to a gastroenterologist. ¶7. According to M ississippi R ule of Evidence 702, 5 a witness m ay testif y as an expert if the w itness i s “ q u alif ied as an expert by knowledge, skill, experience, training, or education,” and “if (1) the testim ony is based upon suf f icient f acts or data, (2) the testim ony is the product of r eliable principles and m ethods, and (3) the wi tness has a p plied the

3 A f ter D r. S to k es’s d ep o sitio n b u t p rio r to trial, h i s M ississip p i m ed ical licen se w as su sp en d ed

.

4 F ip p s h ad p r ev io u sly i n f o rm ed th e trial co u rt t h a t D r. S to k e s’s d ep o s itio n w o u ld serv e as h is trial testim o n y .

5 E f f ectiv e Ju ly 1 , 2 0 1 6 , th e R u les o f E v id en ce w ere resty l ed

. T h o u g h t h ese ch an g es w e re n o t su b stan tiv e , w e h a v e q u o ted th e f o rm er lan g u ag e o f th e ru le t h a t w as in f o rce d u rin g th e trial-lev el p r o ceed in g s. 3principles and m ethods reliably to the f acts of the case.” ¶8. The trial court has a gate-keeping responsibility t o assure a proposed expert’s opinion has “a reliable basis in the knowledge and experience of the relevant discipline.” W orthy v. McNair , 37 So. 3d 609, 6 14 n.3 (Miss. 2 010) (quoting Kumho Tire Co. v. Carmichael , 526 U.S. 1 3 7 , 1 5 8 (1999)). S e e also Daubert v. M

errell Dow Pharm. Inc. , 5 09 U.S. 579, 589 (1993). W e review a trial c ourt’s determ ination as to the qualif ications of an expert witness under our f

am iliar abuse-of

-discretion standard, Hubbard v. W a nsley , 954 So. 2d 951, 956 (¶11) (Miss. 2007), which h as been ref erred to in m edical-expert cases as h aving “ t he widest possible discretion.” U

niv. of M iss. Med. Ctr. v. P ounders , 970 So. 2d 141, 146 (¶16) (Miss. 2007). ¶9. We f

irst note t hat the f

act that Dr. Stokes, a board-certif ied general surgeon, i s n o t certif i ed as a gastroenterologist is not dispositive. “There i s no requirem ent that an expert in a m edical-m alpractice case be a specialist in the sam e area as the doctor about whom the expert is testif

y i ng in regard to the standard of c are.” McDaniel v. Pidikiti , 39 So. 3d 952,
956 (¶10) (Miss. Ct. App. 2009) (citation om itted). However, “[ s]atisf a c tory f am iliarity with the specialty of the def

endant doctor is

. . . required in order f or an e xpert to t estif

y as to the standard of care owed to the plaintif f patient.” Hubbard , 954 So. 2d at 957 (¶13). ¶10. In concluding that Dr. Stokes was not qualif i e d , t he t rial court determ ined that “the questions pertaining to Dr. Stokes’s knowledge of and f am iliarity with the standards of care of a gastroenterologist treating a patient such as F ipps sim p ly were not asked.” And that nothing exists “ in Dr. Stokes’s deposition f rom which t his court can det e r mi ne that Dr.

4Stokes is f

am i l iar with and/or possesses knowledge of the standard of care in the s peciality of gastroenterology .” The trial court recognized that Dr. Stokes did have som e f am iliarity with EGD procedures, but noted that Dr. Stokes “was never asked and did not testif y that he

w a s f a m i l i a r with the standard of care in t he m e dical speciality of gastroenterology as to when and whether t he dilatation procedures s hould be perf o rm ed.” I n f

act, Dr. Stokes’s testim o ny concerning the esophageal dilatation indicated that he had never used the specif ic tool (a Maloney dilator) used by Dr. Calvit d uring the EGD. The trial court f u rther n oted that Dr. Stokes was never tendered as an expert in gastroenterology , only as a general surgeon. ¶11. Mindf

u l that t rial courts h ave the widest possible discretion i n m edical-expert cases,

we c annot f

ind that the trial court abus ed its d iscretion in f inding Dr. Stokes was not qualif ied to of f er his expert opinio n . A l though Dr. Stokes had som e f am iliarity with the procedure, he did not indicate suf f icient f am iliarity with t he standa r d o f c a r e to which a gastroenterologist is h eld—Dr. Stokes s im ply opined as to what he would hav e d o ne as a general surgeon in a s im i lar situation. To reiterate the trial court’s f inding, Dr. Stokes “was

never asked and did not testif y that he was f

am iliar with the standard of care in the m edical speciality of gastroenterology as to when and whether the dilatation p r o c e d u r e s should be perf orm ed.” “The rule is that the expert m ust e xercise the sam e level o f intellectual rigor that characterizes the practice of an expert in the relevant f i eld.” Poole e

x rel. Poole v. Avara , 908 So. 2d 716, 724 (¶16) (Miss. 2005). Absent expert testim ony , there is no t riable issue of f act regarding the alleged m edical m alpractice of Dr. Calvit. This issue is w ithout m erit.
II. Inform ed Consent

5¶12. Fipps next argues that D r. Stokes’s opinion regarding inf orm ed consent was properly disclosed; thus, the trial court erred in granting t he Hospital’s m otion in l im ine. Upon questioning by the H ospital during h i s deposition, Dr. Stokes stated t hat he had not been asked to give his opinion on inf orm ed consent. However , o n c r o s s-exam ination, Fipps questioned Dr. Stokes about inf orm ed consent. The H ospital objected. Af ter learning that
Dr. Stokes’s d eposition w ould be his trial t estim o ny , the Hospital then f iled its m otion in lim ine. “The standard o f r e view f or a trial c o urt’s decision either to adm it or exclude evidence is abuse of

discretion.” Burnwatt v
. Ear, Nose & Throat Consultants of N. Miss. , 47 So. 3d 109, 114 (¶17) (Miss. 2010). Since we are af f irm ing the trial court’s decision to exclude Dr. Stokes’s testim ony , we see no reason to address this issue.
III. Status of Dr. Stokes’s Medical License ¶13. Fipps contends that the trial court erred in g ranting the Hospital’s m otion in lim ine to prevent Dr. Stokes f

rom testif y ing that he w as a l i c e nsed phy sician. In his d eposition, Dr. Stokes testif

ied that he had never been disciplined by a ny state’s m edical-lice n s ure board. By the tim e o f t r i al, however, his license to practice m edicine in Mississippi had been suspended. Fipps argues that any actions b y the M ississippi State Board o f Me d ical Licensure regarding Dr. Stokes’s license did not com m ence until af t e r Dr. Stokes’s deposition; thus, Dr. Stokes’s deposition testim ony t hat he was a licensed phy s ician who had

never been disciplined was accurate a t the t im e. Ultim ately , Dr. S tokes’s deposition was of f ered as his testim ony . For r easons previo u sly stated, we see n o r eason to address this issue.

6¶14. AFFIRMED.

GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE , WESTBROOKS A ND TI N D E L L , J J . , C O N C U R . I R V I NG, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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