IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 96-60681

________________________

REGGIE DICKEY, and wife; LOIS DICKEY,

Plaintiffs-Appellants,

versus

BAPTIST MEMORIAL HOSPITAL NORTH MS;

UNITED STATES OF AMERICA, VETERANS ADMINISTRATION,

Defendants,

BAPTIST MEMORIAL HOSPITAL NORTH MS,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the

Northern District of Mississippi

________________________ July 13, 1998

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

The appellant, Lois Dickey, appeals the district court’s order

granting Baptist Memorial Hospital-North Mississippi summary

judgment on her state-law negligence claim. For the reasons set

forth below, we reverse and remand.

I.

On July 28, 1992, Reggie Dickey went to the emergency room at

Baptist Memorial Hospital-North Mississippi (“BMH”) in Oxford,- 2 -

Mississippi, complaining of chest pains. Dr. Lamb, an ER physician

employed by BMH, ordered that chest x-rays be taken for an apparent

heart problem. Dr. Jordan, a radiologist employed by BMH,

i nterpreted the x-rays as revealing a “questionable mass” in Mr.

Dickey’s right lung, and a BMH radiology report recommended that a

chest CT scan be performed.

Before any additional tests could be performed, however, Mr.

Dickey and his family requested that he be transferred to the

Veterans’ Administration Hospital (the “VA Hospital”) in Memphis,

Tennessee, for follow-up care. Pursuant to BMH policy, Dr. Lamb

then called the VA Hospital and spoke with Dr. Washington, the

“officer of t he day” at the VA Hospital, to explain Mr. Dickey’s

condition and to obtain consent to have him transferred.

After obtaining approval for the transfer, BMH transferred Mr.

Dickey to the VA Hospital. The ER record from BMH, which was

prepared by Dr. Lamb and which accompanied Mr. Dickey to the VA

Hospital, noted, inter alia

, the following: “chest x-ray, pathology

right chest, ? [questionable] mass on right-radiological report,”

under the “physician history and physical” category. The

radiological report to which the ER record refers was available at

the time of Mr. Dickey’s transfer but was not forwarded to the VA

Hospital. The parties dispute whether the x-rays taken at BMH

revealing the questionable mass on the right lung were forwarded to

the VA Hospital. After the transfer, the VA Hospital undertook all

medical care for Mr. Dickey, and BMH had no further involvement.- 3 -

When Mr. Dickey arrived at the VA Hospital, Dr. Dempsey, the

VA Hospital’s radiologist, performed another set of chest x-rays to

locate the source of Mr. Dickey’s chest pain. These x-rays, which

used a different film technique than that used by BMH, apparently

did not reveal the questionable mass in Mr. Dickey’s right lung.

Fifteen months la ter, Mr. Dickey was diagnosed with lung cancer.

On February 6, 1996, Mr. Dickey died as a result of the lung

cancer.

II.

On November 6, 1995, Mr. and Mrs. Dickey filed suit against

BMH and the United States (the VA Hospital) for negligence arising

out of Mr. Dickey’s medical care. On March 7, 1996, after her

husband’s death, Mrs. Dickey filed an amended complaint as the

administratrix of the estate and on behalf of herself and all other

wrongful death beneficiaries. On April 29, 1996, Mrs. Dickey filed

a second amended complaint, in which she claimed that BMH employees

negligently failed to send the x-ray report and/or the x-rays to

the VA Hospital when Mr. Dickey was transferred. Mrs. Dickey also

claimed that BMH’s failure to send the x-rays and radiology report

constituted a violation of Emergency Medical Treatment and Active

Labor Act (“EMTALA”), 42 U.S.C. § 1395dd(c)(2)(C), which requires

that all x-rays and medical records be sent with a patient when he

is transferred. Finally, Mrs. Dickey claimed that the VA Hospital

employees were negligent in losing the x-rays in the event that- 4 -

they were sent to them, in failing to diagnose Mr. Dickey’s tumor

on the x-rays that were t aken at the VA Hospital, and in not

reviewing the medical records that were actually received from BMH.

On June 27, 1996, the district court granted BMH’s motion for

partial summary judgment and dismissed the claim brought pursuant

to EMTALA as time barred. On September 10, 1996, the district

court granted BMH’s motion for summary judgment with respect to

Mrs. Dickey’s state-law negligence claim. On October 8, 1996, Mrs.

Dickey filed an interlocutory appeal with respect to the dismissal

of BMH from the action. On November 4, 1996, the district court

entered a judgment dismissing the action against the VA Hospital by

reason of settlement. On January 27, 1997, this court dismissed

Mrs. Dickey’s appeal for want of prosecution. By order dated March

19, 1997, however, this court reinstated Mrs. Dickey’s appeal

against BMH.

On appeal, Mrs. Dickey argues only that the district court

erred in granting BMH summary judgment on Mrs. Dickey’s state-law

negligence claim. Mrs. Dickey has not appealed the district

court’s order dismissing her EMTALA claim against BMH.

III.

This court reviews the grant of summary judgment de novo,

apply ing the same standards as the district court. S ee Duffy v.

Leading Edge Prods., Inc.

, 44 F.3d 308, 312 (5th Cir. 1995). Under- 5 -

Rule 56(c), summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c); s ee

Celotex Corp. v. Catrett

, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552,

91 L.Ed.2d 265 (1986). The party seeking summary judgment carries

the burden of demonstrating that there is an absence of evidence to

support the non-moving party's case. S ee id. at 323, 106 S. Ct. at

2553. In reviewing a motion for summary judgment, the court views

the facts and the inferences to be drawn from those facts in the

light most favorable to the non-movant. S ee Coleman v. Houston

Indep. Sch. Dist. , 113 F.3d 528, 533 (5th Cir. 1997).

IV.

To establish any claim for negligence under Mississippi law,

the plaintiff must prove the following elements: 1) the existence

of a duty on the part of the defendant to confo rm to a specific

standard of conduct; 2) a breach of that duty; 3) that the breach

of duty was the proximate cause of the plaintiff’s injury; and 4)

that damages to the plaintiff have resulted. D rummond v. Buckley

,

627 So.2d 264, 268 (Miss. 1993); Barner v. Gorman , 605 So.2d 805,

808-09 (Miss. 1992).

A.- 6 -

To date, no Mississippi court has specifically addressed the

d uty of care owed by a transferring hospital to a patient with

respect to the transfer of the patient’s records. In general,

however, physicians in Missis sippi have a duty to exercise

“‘reasonable and ordinary care’ in thei r treatment of patients.”

Drummond

, 627 So.2d at 268. What constitutes “reasonable and

ordinary care” in any particular case is often a fact specific

question and must ordinarily be established through expert medical

testimony. See id. ; Travis v. Stewart , 680 So.2d 214, 218 (Miss.

1996) (holding that medical negligence must be established by

“medical testimony that the defendant[s] failed to use ordinary

skill and care”). Although this usually means that the plaintiff

must rely on her own expert testimony, Mississippi law also

recognizes that a medical-malprac tice plaintiff “may utilize the

defendant himself as a source of proof of the standard of care. .

. .” M eena v. Wilburn

, 603 So.2d 866, 870 n.9 (Miss. 1992)

(quotation omitte d). A plaintiff may use the defendant’s own

testimony when “the physician [as defendant testifies] to the

standard in such a clear way that the plaintiff has little trouble

demonstrating a deviation from that standard.” I d. (citation

omitted).

In th is case, the district court concluded, as does the

dissent , that a transferring hospital only has a duty “to

communicate all of [the patient’s] pertinent medical conditions to

the transferee hospital.” Slip op. at 12 (emphasis in the- 7 -

original). This conclusion was based, in part, on the deposition

testimony of Dr. Lamb, the ER physician who treated Mr. Dickey at

BMH, who te stified that a physician has a duty to “relay all

significant information to the receiving doctor.” According to the

district court, this duty was satisfied when BMH transferred the ER

report, which “clearly put the VA hospital on notice of the

questionable mass in Mr. Dickey’s right lung.” I d. In reaching

this conclusion, however, the distric t court failed to take into

account the specific steps identified by Dr. Lamb and other BMH

hospital personnel in their depositions as necessary to satisfy

this duty of care.

In addition to testifying that a physician has a duty to

“relay all significant information to the receiving doc tor,” Dr.

Lamb testified that it was BMH’s “standard of practice” to forward

either the x-rays or copies of the x-rays to the hospital to which

a patient is transferred. He further testified that, although it

was not customary to forward the radiology report because of the

time lag in its preparation, such a report should be forwarded if

available.

Moreover, Nurse Willard, the BMH nurse who accompanied Mr.

Dickey during his transfer from BMH to the VA Hospital, testified

that her “standard of care” as a nurse required her to take the xrays and the x-ray report, if it was ready, with her to the VA

Hospital. Finally, Loralei McGee, BMH’s Director of Health

Information, agreed in her deposition that if the x-rays were not- 8 -

f orwarded, “someone down here at Baptist would have made a

mistake.”

Given this uncontradicted testimony, we conclude that, at a

minimum, a genuine issue of material fact exists as to whether BMH

needed to transfer the x-rays and x-ray report to the VA Hospital

in order to satisfy its duty to use “reasonable and ordinary care”

in its treatment of Mr. Dickey. In reaching this conclusion, we

expressly note that we are not concluding that this duty requires

as a matter of Mississippi law that a transferring hospital

transfer any x-ray s and x-ray reports to a transferee hospital.

Rather, under Mississippi law, whether BMH’s legal duty to use

reasonable an d ordinary care included the obligation to transfer

these records will ultimately be decided by a jury, after hearing

expert testimony. See Drummond , 627 So.2d at 268.

B.

“Given a delineation of the specific acts that needed to be

performed to adhere to the standard of care, the question of

whether a breach of that st andard occurred becomes a factual

inquiry focusing on whether the physician did the delineated acts.”

Drummond

, 627 So.2d at 269. In this case, there is no dispute that

BMH did not forward the x-ray report to the VA Hospital.

Consequently, if the jury concludes that BMH’s duty to provide

reasonable and ordinary care required BMH to forward the x-ray

rep ort, then BMH would have breached its duty of care to Mr.- 9 -

Dickey.

In addition, we conclude that a genuine issue of material fact

exists as to whethe r BMH forwarded Mr. Dickey’s x-rays to the VA

Hospital. BMH argues that it delivered the x-rays and points to

the testimony of ER nurse Willard, who recalled delivering an x-ray

envelope to the VA hospital. Willard also completed transmission

records which indicate that x-rays were sent to the VA. Willard

testified, however, that she did not check to see that Mr. Dickey’s

x-rays were in the envelope or whether there were any x-rays in the

envelope. In addition, BMH does not dispute that the records of

another BMH patient were accidently transferred with Mr. Dickey.

In response, Mrs. Dickey argues that a number of pieces of

evidence support her position that BMH did not forward the x-rays

to the VA Hospital. First, she argues that BMH has no record of

making copies o f the x-rays prior to the transfer and that its

records indicate that Mr. Dickey’s x-rays were checked out for the

first time over one year after he was transferred to the VA.

Secon d, she argues that no one at the VA can recall having

seen the BMH x-rays and that no record exists indicating that they

were re ceived by the VA Hospital. In support of this argument,

Mrs. Dickey relies on the deposition testimony of two ER nurses,

who stated that there was no record of receipt of any x-rays, which

there would have been if received from another hospital.

Third, Mrs. Dickey points to the deposition testimony of Dr.

Washington who testified that x-rays would be redone on VA patients1 Mrs. Dickey also argues that there is a genuine issue of material fact

as to whether Dr. Lamb told Dr. Washington, the VA Hospital’s “officer of the

day” on the day Mr. Dickey was transferred, about the questionable mass. In his

deposition testimony, Dr. Lamb specifically stated that he told Dr. Washington

abou t the questionable mass. Dr. Washington, however, has no present

recollection of the conversatio n, and the VA Hospital’s standard form for

recording such a “telephonic transfer” has been lost by the VA Hospital. The

mere fact that Dr. Washington does not remember the alleged phone conversation,

however, is not enough, by itself, to create a genuine issue of material fact.

Rule 56 requires that the party opposing summary judgment point to specific

evidence that creates a genuine issue of material fact. S ee Posey v. Skyline

Corp. , 702 F.2d 102, 105-06 (7th Cir. 1983).

- 10 - only if the x-rays from the transferor hospital were never received

or if they were of poor quality. If x-rays of good quality arrived

with a patient, Dr. Washington testified that new x-rays would not

be taken on the same part of the body. There is no real dispute

that the BMH x-rays were of good quality. Thus, Mrs. Dickey

argues, because the VA Hospital took new x-rays of Mr. Dickey’s

chest upon his arrival at the VA Hospital, a jury could reasonably

conclude that BMH did not forward the x-rays to the VA Hospital.

Even BMH concedes that one possible inference to be drawn from

the VA Hospital’s ordering of chest x-rays is that the VA Hospital

did not receive the BMH x-rays. Because all reasonable inferences

must be drawn in Mrs. Dickey’s favor, we conclude that she has

demonstrated that there is a genuine issue of material fact as to

whether the BMH x-rays were sent to the VA Hospital. Accordingly,

we find that the district court erred in concluding that no issue

of material fact existed with respect to whether BMH breached its

duty of care. 1- 11 - C.

We next address whether there is a genuine issue of material

fact as to whether BMH’s alleged breach of duty proximately caused

Mr. Dickey’s injuries. To prove proximate cause, the plaintiff

must show some reasonable connection between the defendant’s breach

and the damage that the plaintiff has suffered. Brunham v. Tabb

,

508 So.2d 1072, 1074 (Miss. 1987). To survive summary judgment,

the plaintiff must make a showing that “affords a reasonable basis

for the conclusion that it is more likely than not that the conduct

of the defendant was a cause in fact of the result. A mere

possibility of such causation is no t enough.” I d. In a medical

malpr actice case, this means that the plaintiff must produce

evidence that “in the absence of the alleged malpractice, a better

result was probable, or more likely than not.” D rummond

, 627 So.2d

at 270 (quoting Ladner v. Campbell

, 515 So.2d 882, 889 (Miss.

1987)). As above, expert testimony is generally necessary to make

such a showing. P almer v. Anderson Infirmary Benevolent Ass’n

, 656

So.2d 790, 795 (Miss. 1995); Drummond , 627 So.2d at 270.2 With respect to the failure to forward the x-rays, Dr. Dempsey testified

as follows:

Q: Now, if you h ad that film available in ‘92, as well as your films

and prior films, what would you h ave recommended that a clinician

do?

MR. DUNBAR: Objection, foundation.

A: Well, I would have recommended what they recommended, a CT scan and

a bronchoscopy.

Q: So, if you had had available to you the films from Baptist Memorial

Hospital from 1992, you would hav e recommended a CT and

bronchoscopy, is that correct?

A: Yes.

* * *

Q: How would y ou describe [the BMH x-rays] if you were dictating a

report on that, the one you call more suspicious?

A: Exactly the way they did: suspicious for neoplasm, and that reaches

another threshold that [the VA x-rays] didn’t.

R. at 763, 767.

3 With respect to BMH’s failure to forward the x-ray report, Dr. Dempsey

testified:

Q: Have you seen this report from [BMH], x-ray report done by Dr. C. M.

Jordan from the July, ‘92, x-ray?

A: Yes.

Q: Do you agree with what he found?

- 12 - In this case, Mrs. Dickey argues that BMH’s failure to forward

the x-rays and x-ray report delayed the diagnosis of Mr. Dickey’s

cancer until it had progressed to an almost untreatable stage. In

support of her argument, Mrs. Dickey relie s on the deposition

testimony of Dr. Dempsey, the radiologist at the VA Hospital.

After reviewing Dr. Dempsey’s testimony, we agree with Mrs. Dickey

that Dr. Dempsey’s testimony makes clear that had he seen either

the BMH x-rays 2 or the BMH x-ray report, 3 he would have or deredA. Yes.

Q: If, in fact, this x-ray report had come along to this hospital with

the patient and you had been given this chest x-ray report, would

you have also made sure that a CT scan was done?

A: Yes.

MR. DUNBAR: I object to the form.

Q: And that woul d be true, regardless of whether or not you received

the actual x-rays from [BMH]? . . .

A: Yes.

Q: And in your opinion, would the chest CT scan at that time have shown

a cancer?

A: Probably.

R. at 791-92.

4 Dr. Dempsey testified:

Q: Now, this one that we call the questionable mass in the 1993 fi l m

has been subsumed by the bigger mass, is that correct?

A: Right.

Q: Does that indicate to you that this questionable mass in 1992 was,

in fact, cancer?

A: Possibly.

Q: More probable than not?

A: There is a high probability looking in retrospect, now that we have

all of the information.

Q: A high probability that this was, in fact, the begin ning of the

larger cancer over here?

A: Right.

- 13 - additional tests that probably would have revealed the questionable

mass. Dr. Dempsey’s testimony further creates a genuine issue of

fact regarding whether the questionable mass revealed by the BMH xrays developed into the cancer that ultimately caused Mr. Dickey’s

death. 4Q: And you would agree that this is one centimeter or less?

A: Something like that.

Q: Would you agree that it was probably Stage I at that time?

A: Right.

R. at 769-70.

Additional information introduced by Mrs. Dickey established the survival

rates for l u ng cancer diagnosed and treated during Stage 1 versus lung cancer

diagnosed and treated during Stage 3. BMH did not challenge this testimony

before the district court or on appeal.

5 Moreover, contrary to what BMH implies, Dr. Dempsey testified that, if

he had been told onl y what was in the ER record or what Dr. Lamb told Dr.

Washington, he still would not have made the diagnosis or ordered a CT scan:

Q: If they come with the patient, it is the duty of the emergency room

physician of the VA Hospital to read the records to see what the

- 14 - In response, BMH contends that Mrs. Dickey has not proven

causation because the diagnosis of Mr. Dickey’s cancer should have

been made based on the ER record notation and the oral

communication by Dr. Lamb to Dr. Washington. In other words, BMH

argues that the negligence of VA Hospital and its staff was the

true cause of Mr. Dickey’s delayed diagnosis. It is hornbook law,

however, that a nother party’s subsequent negligence does not

necessarily sever the chain of causation. Mrs. Dickey had the

burden to demonstrate a reasonable basis for the conclusion that it

is probable that BMH’s breach was a proximate cause, not the sole

cause, of the delayed diagnosis of Mr. Dickey’s cancer. In this

respect, the testimony of Dr. Dempsey clearly establishes that a

genuine issue exists as to whether BMH’s alleged failure to forward

the x-rays and x-ray report proximately cause d the delayed

diagnosis. 5man’s past history is, is that true?

A: Right.

Q: If they had read this records, they would have s een that he had a

questionable mass in his right lung, according to the radiologist’s

findings in Oxford, is that true?

A: Right.

Q: And what would you have done at that point if that information had

been relayed from the emergency room doctor in Memphis to you? You

would have run an x-ray, wouldn’t you?

A: Right.

Q: And if that x-ray report was run -- excuse me, if the x-ray series

wa s run and you didn’t see anything, then there wouldn’t be a CT

scan, would there, done here at this hospital?

A: Well, if I didn’t have the films from down there, yes.

Q: Further -- let’s make sure that we are clear on that -- if you had

run a chest x-ray here at the VA Hospital in July of 1992 and the

results came out just like they did, where you didn’t see any

evidence of a pulmonary mass, then there would be no CT scan run?

MR. COCKE: Are you asking him to ignore the x-rays from [BMH]?

A: If I had the films from [BMH], the indication for the CT scan was on

them.

R.4 at 786-87.

- 15 - V.

For the reasons set forth above, the judgment of the district

court is REVERSED and this case is REMANDED to the district court

for further proceedings not inconsistent with this opinion.

REVERSED; REMANDED.RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

Because Baptist Memorial Hospital’s (BMH ) transfer of the

emergency room report, noting the questionable mass in Dickey’s

right lung, to the VA Hospital, along with BMH’s telephone call to

the VA Hospital, describing Dickey’s condition, including the

location of the questionable mass , satisfied B MH’s duty to

communicate all of Dickey’s pertinent medical conditions to the VA

Hospital, I respectfully dissent.

BMH’s duty of care in this situation, was, as the district

court correctly held, “the dut y to c ommunicate all of [Dickey’s]

pertinent medical conditions to the transferee hospital”. Dickey

v. Baptist Memorial Hospital-North Mississippi

, 1996 WL 672121, *5

(N.D. Miss. 1996). The emergency room report transferred to the VA

Hospital communicated all of Dickey’s pertinent medical conditions,

including a questionable mass in the right lung. The report noted:

“CxR [chest x-ray] - Pathalogy Rt. Chest ? [questionable] mass in

Right-Radiologist’s report”.

Additionally, as the majority correctly concludes, there is no

genuine issue of material fact as to whether Dr. Lamb, the treating

physician at BMH, told Dr. Washington, the VA Hospital’s “officer

of the day”, about the questionable mass during the telephone call

arranging for Dickey’s transfer to the VA Hospital.

In his deposition, Dr. Lamb agreed that he would fall below

his standard of care if he did not tell the VA physician about the- 17 -

mass on Dickey’s lung. Dr. Lamb testified that, in his

conversation with Dr. Washington, he “reviewed the findings in the

case, what his presentation was, what we had found including the

chest x-ray report. I reviewed the lab work and I told her that

[Dickey] requested admission and I felt he was stable for transfer

if he wanted to come”. And, when asked “did you inform Dr.

Washington about the questionable mass on the lung as well as the

cardiac situation?”, Dr. Lamb replied, “ I did ”. (Emphasis added.)

Accordingly, BMH communicated all of Dickey’s pertinent

medical conditions to the VA Hospital. Therefore, as a matter of

law, no breach of duty occurred and the s ummary judgment for BMH

should be affirmed. I respectfully dissent.