IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-CA-00572-SCT JENNIFER McILWAIN, INDIV IDUALLY

AND FOR AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF HUNTER McILWAIN, A MINOR, DECEASED

v. NATCHEZ COMMUNITY HOSPITAL, INC., JENNIFER V

ERMAELEN RUSS, M.D., NATCHEZ PEDIATRIC CLINIC, PLLC., AND MICHAEL L. WHEELIS, M.D.

DATE OF JUDGMENT: 03/06/2013 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. TRIAL COURT ATTORNEYS: R. MARK HODGES R. BRITTAIN VIRDEN COURT FROM W HICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: EVERETT T. SANDERS CLAUDE PINTARD SCOTT J. PINTARD ATTORNEYS FOR APPELLEES: CLIFFORD C. W H ITNEY, III R. E. PARKER, JR. L. CARL HAGW OOD CARRIE RICE MCCORMICK NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED - 09/03/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:¶1. T h i s i s a me d i c a l malpractice case involving the death of two-y ear-old H u n t e r

McIlwain. P l a i n tif

f f iled against two doctors and their respective em ploy ers; however, because only claim s of vicarious liability were alleged against the em ploy ers, we will discuss the doctors only

. W e af

f i rm the trial c ourt’s grant of Dr. Russ’s Motion f or Judgm ent Notwithstanding the Verdict (JNOV), because Plaintif f’s expert f

a i l e d t o articulate the standard of care f

or a m inim a lly com

petent pediatrician. However, we f ind that the trial court im p roperly granted Dr. W h eelis’s m otion f or JNOV. W e r e v erse that judgm ent of the trial court and rem and f

o r a new trial. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ¶2. In the early m orning hours of June 18, 2001, Dusty McIlwain brought his two-y earold son H u n t e r t o the N atchez Comm unity Hospital em e rgency room because H unter had been vom iting, cry ing, and com p l aining o f pain. Dr. Michael W heelis, the e m ergency room doctor, knew Dusty a nd previously had worked with Carol M c I l w a i n (a nurse), Dusty ’s

m other and H unter’s grandm other. Dr. W heelis was aware that Hunter had suf f ered a subarachnoid h e morrhage previously as a result of a m otor vehicle accident. That night, Dusty and Carol McIlwain inf orm ed Dr. W heelis only that Hunter had abdom inal pain and had vom ited. Dr. W heelis did not observe any neurological sy

m ptom s. ¶3. Dr. W heelis t estif

ied that the triage nurse t ook a m edical history when Hunter was f irst brought to the ER. Dr. W heelis testif ied that he a lso took a history

. W heelis t estif ied that the

nurse noted the p r ior accident on the triage f o r m . Under past m edical history , Dr. W heelis noted that Hunter had s uf f ered a subarachnoid hem orrhage f r om a m otor vehicle accident

2prior t o J une 2001. Dr. Wheelis also m a de a notation about a “subarachnoid bleed” in a blank

space o n the f

orm . Af ter Dr. W heelis c onducted a phy sical exam ination of Hunter, he m ade

a prelim inary diagnosis of “possible new onset of diabetes. Gastroenteritis.” His d if f erential diagnosis was “ gastroenteritis, new onset diabe tes and dehy dration.” Dr. Wheelis ordered lab

wor k a n d chest a nd abdom inal x-ray s. Dr. W heelis d id not order a com puterized axial
tom ography (CT) scan of Hunter’s head. Dr. W heelis’s recorded i mp ressions w ere acute abdom inal pain, dehy dration, hy pergly cem i a, 1 hy

pokalem ia. 2 Dr. W heelis c onceded at trial that H unter h ad n o diarrhea, a com m on sy m ptom of gastroenteritis, w h ile at hom e i n the care of his f ather and grandm other, n or in the f ew hours Hunter w a s observed in the em ergency

room . ¶4. Af ter deciding that Hunter should be kept overnight in the hospital f or observation, Dr. W heelis, who had no authority to adm it patients, spoke with D r. Russ, a pediatrician, at the request of the f

am ily , at approxim ately 2:10 a.m . Af ter conf erring, Drs. Russ and W heelis diagnosed Hunter with dehy dration and gastroenteritis. ¶5. In the orders signed by Dr. W heelis, he instructed that Hunter’s vital signs should be checked, a t a m inim

um , every f

our hours. Hunter was adm itted at 2:30 a.m . to a r egular f loor in t h e hospital. A t 7:35 a .m ., Hunter was f o und nonresponsive and twitching, with a tem perature of 103 degrees. Nursing personnel paged Dr. Jennif er Russ, a nd she arrived at the hospital at approxim a tely 7:54 a.m

.

1 H ig h b lo o d su g ar.

2 L o w p o tassiu m . 3¶6. By the tim e she a rrived at the hospital, Dr. Russ noted that Hunter’s tem perature was 103.1, h e w as t achy cardic, and his blood pressure was alm o st undetectable. A code blue was called at approxim ately 8:06 a .m . Dr. Russ intubated Hunter because he was having trouble breathing. Hunter was then m oved to the intensive care unit (ICU). ¶7. Believing that Hunter suf f ered f rom s e p s i s d u e t o a r u p t ured appendix, Dr. Russ consulted Dr. Keith Sm ith, 3 who chose to d o an exploratory laparotomy . Although there was nothing wrong with Hunter’s appendix, Sm i th rem oved it during surgery

. 4 ¶8. At that point, Dr. Russ becam e concerned about m eningitis. Bef o re she c o uld order

a spinal tap to test f

or m eningitis, Dr. Russ was required to order a CT scan of Hunter’s head
t o ma k e s ure he did n ot have increased intracranial pressure. The CT scan was ordered a t approxim a tely

11:35 a.m . Dr. Russ received the results at approxim ately 2:45 p.m

. ¶9. A subarachnoid bleed was discovered f ollowing the CT scan of Hunter’s h ead. Af ter the bleed was d i scovered, D r. Russ began the p rocess of transf erring Hunter to the pediatric intensive care unit (PICU) at the University of Mississippi Medical Center (UMMC). ¶10. Hunter was transf

e rred to UMMC at 4:00 p.m . and arrived at approxim ately 7:40 p.m

. Upon arrival, Hunter’s Glasgow Com a Scale was three, and his pupils were unreactive. The UMMC staf

f determ ined that the “C.T. of the head o btained, because – was being considered secondary to suspicion of m e ningitis. C.T. reveals blood in third and f ourth ventricle. There

3 D r. S m ith , in itially a d e f

en d an t in th i s c ase, w as g ran ted su m m ary j u d g m en t an d w as d ism issed

.

4 T h ere w as n o co n f

irm atio n b y an y w itn e s s t h a t H u n ter d i d , in f act, su f f er f ro m sep sis. 4was a dditional density between the interior lobe suggestive of an aneury sm .” Af ter Hunter’s condition f

ailed to im

prove, Hunter was pronounced dead at 11:08 a.m . the next m orning. ¶11. O n S e p t e m

ber 4, 2002, Jennif

er McIlwain, Hunter’s m other and D usty ’s ex- w i fe , fi l e d suit in the Circuit Court of the F irst Judicial D i s t r i c t of the H inds County against Natchez Commu nity Hospital, Dr. Russ, Natchez Pediatric Clinic, Dr. W heelis, D r. Sm ith, and another doctor. 5 The only c laim s alleged against the h ospita l a n d c l i n i c were claim s of vicarious liability

. ¶12. On Septem

b er 13, 2 007, this m atter was transf erred to t h e A d a ms C o unty Circuit Court. Trial com m enced on Novem ber 6, 2012, m ore than ten y ears af t er the suit had been f iled. Af ter a week-long trial and a n extended period of deliberation, the jury announced that it was deadlocked six-to-six. The trial court declared a m istrial. ¶13. Following entry of the Order of Mistrial, the def

endants f iled m otions f

or judgm ent notwithstanding the verdict ( JNOV), arguing that Jennif er McIlwain had f

a iled t o establish her b u r den of proof as t o the issue of causation. T he trial c o urt granted the m otions and entered a f

inal judgm ent of dism issal as to all claim s in f avor o f a l l def

endants. Jennif

er tim ely f iled this appeal, raising the f ollowing issues: I. W hether the trial court e rred in granting d ef endants’ m otion f

or a judgm ent notwithstanding the verdict af ter the hung jury

. II. W hether the trial court abused its discretion in deny ing plaintif f a f air trial. A. W hether the trial c ourt perm itted the introduction of collateral, prejudicial, and irrelevant evidence.

5 T h at d o cto r w as n o t n am ed as a d ef e n d an t in th e F i rst A m en d ed C o m p lain t. 5B. W hether the trial cour t e r r e d in lim iting the evidence on the present net cash value of

Hunter McIlwain’s lif

e. The def endants argue that the trial court properly granted their m otions f

or J NOV because Jennif er had f a iled to establish causation and to articulate a violation of the standard of care. ANALYSIS ¶14. The standard of review f or a trial court’s grant of a m otion f or JNOV is de novo . Bus. Com m c ’ns, Inc. v. B an k s , 9 0 S o . 3d 1 221, 1 224 (Miss. 2012) (citing Watts v. Radiator Specialty Co. , 990 So. 2d 143, 150 (Miss. 2008)). A m otion f or JNOV is a “challenge to the legal suf f iciency of the evidence.” United Servs. A uto. Ass’n ( USSA) v. Lisanby , 47 So. 3d 1172, 1176 (Miss. 2010) (citing Adcock v. Miss. Transp. Com m ’n , 981 So. 2d 942, 948 ( M iss. 2008)). “ W e are required to view the evidence in the light m o st f a v orabl e t o t h e

nonm o ving party

. ” Mollaghan v. V arnell , 105 So. 3d 291, 300 (Miss. 2012). “In essence, judgm ents as a m atter of law present both the trial c ourt and the appellate court with the sam e question–whether the evidence, as applied t o the el em ents of a p arty ’s case, is either so indisputable, o r so def

icient, that the necessity of a trier of f act has been obviated.” White v. Stewm an , 932 So. 2d 27, 32 (Miss. 2006). Judgm ents as a ma t t er of law test the legal suf f i ciency of that litigant’s case. Id. I. Whether the trial court e r red in g ranting defendants’ m otion for a judgm ent notw ithstanding the verdict after the hung jury . ¶15. In order to establish a prima facie case of m edical negligence, the plaintif f m ust prove the f ollowing elem ents: (1) the def

e ndant had a duty

to conf o rm to a specif

ic standard of c o nduct f

or the pro t e c t i o n of others against an unreasonable risk o f injury ; ( 2) the

6def

endant f ailed to conf

orm to that required s tan dard; (3) the def endant’s breach of duty was a p roxim ate cause of the plaintif f’s inj u r y , a nd; (4) the plaintif f was injured as a result. Mid-South Retina, L LC v . C o nner , 72 So. 3d 1048, 1050-51 (Miss. 2011) (quoting McDonald v. Mem ’l Hosp. at G ulfport , 8 So. 3d 175, 180 (Miss. 2009); Delta Reg’l Med. Ctr. v. V enton , 964 So. 2d 500, 504 (Miss. 2007)) (other citations om itted). ¶16. W e exam in e w h e t h e r Jennif er established the af

orem entioned elem ents as to each def endant. As to D r . Wheelis, w e f ind that the Plaintif

f of f ered suf f icient e vidence of the requisite elem ents, and the trial court’s grant of the m otion f or JNOV w as im

proper. However, as to D r. Russ, the standard of care and putative breaches of d uty articulated by Dr. Miller f a iled to c onf

orm to o ur established l aw. The trial court properly granted the m otion f or JNOV as to the claim s alleged against Dr. Russ.

A. Dr. W h eelis ¶17. In r esponse t o interrogatory r e q u e sts, Jennif er designated Dr. D avid W iggins as an expert and inf

o rm ed the def

e ndants that he was expected to testif y : to a r easonable degree of m edical certainty that . . . [ Dr.] Michael W heelis

. .

. breached the applicable standard of care regarding [ his] tr e a t me n t of Plaintif f’s decedent, a nd that the breach of sa i d s t a n d a r d of care caused or contributed to the death of Plaintif f’s decedent. As to D r. W heelis, 6 Dr. W iggins opined f o ur b reaches: (1) f

ailure to pe r f

o r m an adequate history ; (2) f

ailure to perf

orm an a dequate phy sical exam ; (3) f ailure t o order the appropriate tests; a nd (4) f

ailure t o m ake th e proper diagnosis. Dr. W iggins f u rther o pined that a head

6 In th e d isco v ery p h ase, D r. Wig g in s also w as d esig n ated to o f f er testim o n y ag ain st D r . Ru ss. H o w ev e r, at trial, Jen n if er’s rep lacem en t ex p e r

t, D r. T r u ly , o f f ered testim o n y o n ly ag ain st D r . Wh eelis. 7CT, w hich would have been “indicated in a severely ill child w ith a history of subarachnoid

hem orrhage,

. . . m ight have r e v e a led the presence of a subarachnoid hem o rrhage.” Dr. W i ggins opined that, had Dr. W heelis m ade the proper diagnosis, Hunter would h ave been
t r e a ted earlier, would not h a ve undergone an unnecessary e xploratory l aparotomy , and would have been adm itted to the ICU where he c ould have been closely m onitored. Dr. W iggins concluded that the “delay in r ecognizing the patient’s deteriorating status delay ed treatm ent, thus prolonging the pathological conditions and alm ost certainly w orsening the outcom e.” ¶18. Approxim ately s ix weeks bef ore trial, Jennif

er m oved to desig n a t e an expert out of tim e, stating that Dr. W iggins was unavailable to testif y at trial. F ollowing a m otion hearing, the trial judge ruled that: W h at the Court is going to do is to allow partially what plaintif f i s requesting. B u t t his Court – as I said, it’s alway s a m atter of f airness within the r

ules. Now, y ou will be allowed to designate a n ew expert, b ut this expert cannot go outs i d e w hat h as already been disclosed by this p rior expert. I n other words, there’s no new surprises or any thing like that. That’s a m atter o f f airness, and with the a ging of this case – in other words, the new expert will n ot be allowed to give any o pinions which are outside of what has a lrea d y b e e n designated. In other words, I’m giving y ou an opportunity , because of the tim e f

rom this prior designation, to get a replacem ent e x p e r t, n ot a new expert.

. . . But it won’t b e like we’re starting of f with a new expert where y ou f ind out what he’s going to say , because the expert will b e lim i ted t o t h e o pinions and the f acts and basis f

or it that’s already

been disclosed. The court m em o rialized his f inding i n a n order granting Jennif er’s m otion to designate an expert out of tim e, “provided

. . . that the opinions of the newly designated expert shall not dif f er f r om the o pinions disclosed previously f or Dr. W i ggins in scope, substance, basis, or in any o ther m aterial respect. . . .”

8¶19. Dr. W illiam Truly , a phy sician in f a m ily an d e me r g e n cy m edicine, t estif ied at trial. Dr. Truly was accepted as an e xpert in em e rgency -room m edicine w i t h o u t o b jection by def endant s . D r . T r u ly testif ied that his testim ony was based on a reasonable d egree of

m edical c e rtainty and that, based on his knowledge, education, training, and e xperience, he was aware of what was required of a m i nim ally

com petent em ergency -room

phy sician. ¶20. Dr. Truly testif

ied that he disagreed w ith Dr. W heelis’s i m p ression of gastroenteritis because Hunter had no e vidence of diarrhea. Dr. Truly

also testif

ied that, with a child who has a history of an i ntracranial bleed and who presents with v om iting, the standard of care would have been to perf

orm a C.T. scan of the head. Dr. T ruly testif ied that Dr. W heelis did not perf orm a C.T. scan of

the head and f

urther testif

i ed, over objection by

the def endants,
t h a t W heelis’s f

a ilure was a deviation f rom the standard of care, and such deviatio n contributed to Hunter’s death. Dr. Truly f urther testif

ied that there was a f

ailure t o properly diagnose on the part of Dr. W heelis a nd his f ailure t o diagnose was a breach o f the standard of care. ¶21. Dr. W h e e l i s ’ s b r i e f o f f ers a s ide-by -side com

p arison of Dr. W iggins’s designated testim o ny vis-a-vis w hat Dr. T ruly testif ied t o at trial. T he wording used by each doctor is not

an exact r eplication. H o w e v e r , t h e issue t o b e determ ined is whether Dr. W h eelis was p rejudiced by Dr. Truly ’s C.T. testim ony . T h ere can be no doubt that D r. W heelis was on notice that Dr. W iggins would testif y as to b reach and causation, specif ically that the f

ailure
to order a tim ely C.T. scan was a breach of the standard of care, and that a C .T. scan should have been ordered by

Dr. W heelis, given Hunter’s history

.

9¶22. Dr. Truly ’s testim ony discussed above w as within the p aram eters o f the designation

in of f ering an opinion that D r. W h eelis’s f ailure to order a C .T. scan on a child with a history of an intracranial b leed resulted i n the initial m isdiagnosis. W hile parts of Dr. Truly ’s testim o ny did not recite verbatim

Dr. W iggins’s designation, the param eters of D r. Truly ’s testim o ny are m arkedly sim ilar, ultim ately opining, as did Dr. W iggins, that Dr. W heelis’s breach of the standard of care contributed to or caused H unter’ s d e a th. Theref ore, we f ind that the trial court erred in granting a JNOV in f avor of Dr. W heelis. ¶23. In his order granting the m otions f or JNOV, the trial j udge specif ically s tated “that as
to the issue of causation, t h e P l a i n t i f f f a iled to establish its b urden of proof as required by law.” The trial judge m ade no other f inding or e x planation. T his C ourt is troubled by the trial
court g ranting J

NOV instead of grant i n g a new trial. Trial courts have three options when

m otions f or JNOV are m a de: (1) d eny the m otion and try the case to a verdict; (2) grant the

m otion a n d enter a judgm ent f or the m oving party ; or ( 3) grant a new trial. White v. Stewm an , 932 So. 2d 27, 32 (Miss. 2006) (internal citation om itted). “ [ A] new trial becom es appropriate when a trial co u r t d e t e r m ines that error within the trial m echanism itself has caused a legally incorrect o r unjust verdict to be rendered.” White , 932 So. 2d at 33. Courts have granted new trials “whenever convinced, f r om the evidence, tha t the jury has been partial o r prejudiced, o r h as not responded to r eason upon the e vidence produced.” Beard v. William s , 172 Miss. 880, 884 161 So. 750, 751 ( 1 9 3 5 )

. A n ew trial m ay be necessary if

m istakes were m ade in conducting the trial or in a pply ing the law. White , 932 S o. 2d at 33.

1 0¶24. Because w e f ind that the trial court erred b y granting D r. W heelis’s m otion f or JNOV,

w e reverse the judgm ent of the trial court i n part and rem a nd f or a new trial as t o D r . W h eelis. A new trial provides a clean slate. The issues m u st be retried, and the parties m ay thus present evidence dif f erently

. As such, a n ew trial require s i t s o wn law, and the judge is once again em powered to m ake j udgm ents concerning Mississippi law as required by the evidence. White , 932 So. 2d at 33-34.

B. Dr. Russ ¶25. Dr. Carol Miller w as accepted as an expert in the f ield of pediatrics

. A l t h o u gh Dr. Miller stated that h er testim ony would be based upon a reasonable degree of me d i c a l

c e r t a inty and that she was f am iliar with the standard of c a re required of a m ini ma l l y

com petent pediatrician, s he opined that the standard of care required D r. Ru s s t o exam ine Hunter within one hour o f h i s a dm ission. That testim ony was b ased on Dr. Miller’s thirty y ears’ experience in a teaching hospital in S an Fra n cisco, Calif ornia. But o n crossexam ination, Dr. Miller conceded that the one-hour rule was based on that “hospital[ ’s]

m edical staf

f b y laws” and f

rom the “various hospitals over the th irty y e a rs that [ she] has

w o r k e d

. ” She testif

ied that she did not review the by laws of either Natchez Comm unity Hospital or Natchez R egional Medical Center. Additionally , she c o uld not cite any specif ic authority , publication, t e x t, treatise, or peer-reviewed article i n support of her opinion regarding a one-hour rule. ¶26. “ M i s sissippi phy s icians are bound by nationally

- recognized s tandards of care. . . , ” and not institution-specif

ic s tandards which m a y exceed the nationally recognized standard

1 1of care f

or m inim ally com

petent p hy sicians. P

alm er v . Biloxi Reg’l Med. Ctr., Inc. , 564 So. 2 d 1 3 46, 1354 (Miss. 1 990) ( quoting Phillips v. Hull , 516 So. 2d 488, 4 91 (Miss. 1 9 8 7 ) ; Hall v . Hilbun , 466 So. 2d 8 5 6 (Miss. 1985); K ing v. Murphy , 424 So. 2 d 5 47 (Miss. 1983)). Phy sici a ns h ave a “duty t o em ploy ‘reasonable a nd ordinary care’ in their treatm ent of patients.” Id. Our law requ i r e s a p laintif f “ to establish–through a qualif i ed expert–what is required of a m inim ally com petent [ phy sician], ‘whose skills and knowledge are suf f icient
to m eet the licensure or certif ication requirem ents f

or the prof

ession or specialty practiced.’” Braswell v. Stinnett , 99 So. 3d 1 75, 179 (Miss. 2012) (quoting M cCarty v. Mladineo , 636 So. 2d 377, 381 (Miss. 1994)). Our law does n ot require m eeting the standards and protocols of a n unknown institution i n an unknown locale, unless it c an be shown they are one and the

sam e. No evidence was of f ered of such. ¶27. Dr. Miller f

ailed to establish that the nationally recognized s tandard of care was one and the s am e as that of the San Francisco teaching hospital. As Dr. Miller’s t estim ony f ell sho r t o f e stablishing the standard of care applicable to Dr. Russ, no f urther a naly sis is required. W e af

f irm the trial court’s grant of

Dr. Russ’s m otion f

or JNOV. II. Whether the trial c ourt abused its discretion in deny i ng Plaintiff a fair trial. A. W hether the t r i al court permitted the introduction of collateral, prejudicial, and irrelevant evidence. ¶28. The dy

nam ic of this f

am ily is extrem ely contentious. Jennif er and Dusty are no longer

m arried. D usty ref

u s ed to have any part of this lawsuit, cl a i mi n g t h a t the doctors did every thing properly , even though he and his m other, a f orm e r registered nurse, f

ailed to tell

1 2the doctors that Hunter had bum ped his head on a church pew earlier that m orning. Dusty ’s and his f am ily ’ s tes t i mony f

ocused on the alleged wrongdoings of Jennif e r and her responsibility

surrounding the car accident m onths prior. ¶29. Jennif

e r sought to exclude evidence of the f acts surrounding the autom obile accident whi ch had occurred approxim ately ten m onths prior to Hunter’s death. The def endants initially sought to introduce evidence that Jennif er was driving the car and that Hunter was unrestrained. The def

endants a rgued that the reason the prior car accident was relevant was because Hunter had suf

f ered a subarachnoid bleed as a result. The def endants also argued that Jennif

er did not take Hunter to a f ollow-up appointm e nt, which m ight have revealed an aneury s m or rebleed. ¶30. In response, the trial judge acknowledged that this action was a m edical negligence case and the issue to be determ ined was the standard o f care rendered by Drs. W heelis and Russ. T he trial judge ruled that “[ t]he f act that there w as som e ty

pe of injury if y ou can show that b y the evidence that af f ects what happened or h ow the child w as treated, then that will be dealt with b y the Court. ” T h e t r i a l j u dge s tated that if Hunter had suf f ered a previous injury to the head, the def endant would be allowed t o i ntroduce evide n c e r e g a rding the injury

. However, he also stated any evidence regarding f

ault f o r the accident would not be allowed. And there are not to be any questions giving into the driving, the circum s t ances of the accident or things of that nature. However, it is probative – I h ave ruled about the injury that the child suf f ered on this occasion. Reason being because there’s a lot of testim ony about w hat [ ef f ect] that h ad i n the f

ollowing m onths leading u p to the death o f Hunter M cIlwain. Theref ore, the def

endants will be allowed t o elicit testim on y a s to whether or not he w as in the car seat and

1 3whether o r not the plaintif f , Ms. Patterson, McIlwain, m a de any s t atem ents to this witness i n regard to that, but it will b e lim ited to w hether the child was in the . . . car seat or not . . . . I don’t want to hear f ault. The trial judge ultim ately allowed questions to be asked about whether the child was unrestrained, holding such testim o ny went to the severity of the injury

. ¶31. On di r e c t e x a m ination, Jennif er testif ied that, as a result o f a c ar a c cident in 2000, Hunter was taken to a hospital in Jackson. She stated that she did not rem em b er m issing any appointm e nts in Jackson. On cross-exam ination, J e nnif er t estif ied that Hunter was restrained in his car seat in the back seat of the car when the accident occurred. ¶32. Donnie McIlwain, D usty ’s brothe r , w a s a l l o wed to testif y , over objection, as to the dam age done to Jennif

e r’s car a f ter the car a ccident. He t estif ied that h e saw a crack on the inside of the w indshield to the r ight of the steering wheel, closer to the p assenger side. He testif i ed that, af

ter f urther exam ination, he noticed what appeared to be h airs in the crack. On

cross-exam ination, D onnie adm i tted that he did not know what happened to the windshield. ¶33. Dusty McIlwain t estif ied that Jennif

er had told him Hunter was not restrained in a car seat at the tim e of the accident. He stated tha t h e did n ot inf o rm any m edical p ersonnel because his f

ocus was on his son. Dusty t estif i ed that he w as n ot aware of a ny f ollow-up appoi n t me n t s because Jennif er had not inf

orm ed him of any . D usty testif i ed that when he observed Jenn i f

e r ’s car af

ter the accident, h e noticed a “grapef ruit sized indention on the passenger side of the windshield, right above the glove box a r e a , i n d ented f rom the inside out.” Dusty testif

i ed that, d uring church the Sunday bef ore Hunter d ied, he bum

ped the back of his head on a padded pew.

1 4¶34. The trial judge, in his ruling, properly l im ited testim ony of the a ccident t o the injury

that w as received. This Court has held that when sim ilar injuries have occurred in the past, it is perm i ssible “to interrogate f urther as to whether or not they had any connection with the claim then being p resented.” B oyd v. S m ith , 390 So. 2d 994, 997 (Miss. 1980). Evidence showing that H u n t er had suf f e red a previous head injury properly was a llowed by the trial
court. However, a ny evidence that tended to show that Jennif er w a s a t f

a ult, i .e., she was driving, or it was a one-vehicle accident, was not proper because it was not relevant to this

m edical m alpractice suit.

B. W hether the trial court erred in limiting the evidence on the present net cash value of Hunter McIlwain’s life. ¶35. Jennif

e r a rgues that the trial erred i n l im iting the testim ony of Dr. George Carter, her

econom ic expert. In a bench conf erence prior t o Dr. Carter’s testim ony , the trial court m ade the f ollowing ruling: The Court’s ruling pursuant to the authority of the Greyhound c ase is that he will be allowed to testif y as long as they ’ re b ased on national averages, national averages that are set f orth. That is the presum

ption that is set out by the law. As long as i t ’ s clear that that’s the basis that he’s g oing by , the national average. As f ar as the incom e , the C ourt will n ot allow any f r inge benef

its t o be added because that’s the law. ¶36. In Rebelwood Apartm ents RP, LP v. English , 48 So. 3d 483 (Miss. 2010), this Court held that “[ f

]ringe benef

its m ust not be added unless they actually have been received.” Id. at 496-97.

1 5¶37. In Greyhound Lines, I nc. v. Sutton , 765 So. 2d 1269 (Mi s s . 2 0 0 0 ) , a case which concerned the dam ages awarded to the estates of three children, this Court held: i n cases brought f

or the wrongf

ul death of a child where there i s n o p a s t incom e upon which to base a calculation of projected f

uture incom e, there is a rebuttable presum

ption that the d eceased child’s incom e would have been the equivalent of the national average as set f orth by the United S tates D epartm ent of L abor. This presum

ption will give both parties in civil actions a r easonable benchm ark t o f

ollow in assessing da ma g e s . Either party m a y rebut the presum ption by presenting relevant credible evidence to the f inder of f act. Such evidence m ight include, b u t is certainly not l im ited to, testim ony regarding the child’s age, lif e expectancy , precocity , m ental a n d phy sical health, intellectual d evelopm ent, and relevant f am ily c i r cum stances. This evidence will a llow the litigants to tailor their proof t o the aptitudes and talents of the individual’s lif

e being m easured.

. . . [ T]he consum

p t ion rate is another f

actor which m ay

be argued by

the parties to the f inder of f act i n support of increasing o r decreasing the p resum ption that the deceased child’s i n c o m e would have been equivalent to the national average. The c redibility and weight of such testim ony as are to be determ i ned solely by the f inder of f act. Sutton , 765 So. 2d at 1277, 1279. ¶38. Based upon our caselaw and t h e r e cord bef ore us, we cannot say that the trial court erred in lim i ting the testim ony of Dr. Carter. CONCLUSION ¶39. Jennif

e r of f ered suf f icient evidence o f the requisite elem e nts o f a m edical-negligence

case against Dr. Wheelis; theref ore, the trial court erred i n granting D r. W heelis’s m otion f or JNOV. However, Plaintif f’s expert Dr. Miller f

ailed to d evelop evidence that a violation of the standard of c are in the s etting in which she practiced w as equivalent to that as applied to Dr. Russ, and we f

i nd the trial c ourt did not err in g r a n ting Dr. Russ’s m otion f or JNOV.

1 6Furtherm o re, we f ind that, based on the rec o r d b e f o r e us, the trial court properly lim ited testim o ny of Hunter’s previous accident and pr o p e r l y l i m i ted the testim ony of Dr. Carter. Theref ore, the judgm ent of the trial court is af f i r me d i n p a r t and reversed in part, and this case is rem anded to the Circuit Court of A dam s County f or a new trial consistent with this opinion. ¶40. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. WALLER, C .J., DICKIN S O N, P.J., LAMAR, KITCHENS, C HANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR

.

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