IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00329-COA CLEVELAND MEDICAL CLINIC PLLC APPELLANT

v. JESSIE EASLEY, ADMINISTRATOR OF THE ESTATE OF GENE AUTRY EASLEY, DECEASED APPELLEE

DATE OF JUDGMENT: 09/25/2017 TRIAL JUDGE: HON. ALBERT B. SMITH III COURT FROM W HICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: ROBERT J. DAMBRINO III ASHLEY NOBILE LANE ATTORNEY FOR APPELLEE: ELLIS TURNAGE NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: REVERSED AND RENDERED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ. BARNES, C.J., FOR THE COURT: ¶1. A Bolivar County Circuit Court jury f ound Cleveland Medical Clinic PLLC (CMC) liable f or the w rongf

ul death o f Gene Easley (Gene) and awarded hi s e state (Easley ) $744,042.25 in dam a ges. Af ter the circuit court denied CMC’s m otion f or a j udgm ent notwithstanding the verdict ( JNOV), CMC appealed raising issues about t he a d missibility of testim ony by Easley ’s expert w itness. Due to Easley ’ s f ailure to f ile an appellee’s brief and t he volum inous an d c o mp l i cated record on appeal, we consider the m e rits of CMC’s claim s to determ ine i f a n a p parent case of error exists. Finding the e xpert testim ony wasinsuf

f icient to support the verdict, we reverse and render the judgm ent. FACTUAL SUMMARY ¶2. On Decem

ber 30, 2007, Gene—a f

if ty -six y ear old m ale—was adm itted t o B o l ivar Medical Center (BMC) by Dr. Jam es W arrington, his phy sician of ten y e a r s who was

em ploy e d by CMC. Gene’s com p laints were shortness of b re a t h, m a l aise, weakness, and black, tarry bowel m ovem e nts. As noted in CMC’s brief , Gene “had a com

plicated m edical history

. ” Am o ng his prior m edical issues, he had (1) a stroke; (2) diverticulitis; (3) bilateral below-knee am

p utation due to g a ngrene; (4) congestive h eart f ailure; and ( 5) h igh blood
pressure. Gene als o h a d e n d

- s t age renal f ailure and was a dialy sis p atient o f Dr. Michael Portner, a nephrologist with Renal Care Group. ¶3. Upon a dm iss i o n , D r . Warrington ordered the ty ping and cross-m atching of blood
p r o d u c t s and periodically ordered blood transf usions. Dr. Portner was consulted and diagnosed Gene with anem ia related t o his underly ing renal condition. Dr. Bennie W right,

a surgeon, perf

orm ed an esophagogastroduodenoscopy (EGD) to dete r mi ne the source of Gene’s bleeding. Dr. W ri g h t i d e n t if ied t he p resence of gastric ulcers b ut f ound no active bleeding. All three d octors continued to m onitor G ene’s progress, w i t h Dr. W arrington responding to any

changes and ordering m ore blood transf usions and lab tests. ¶4. On the m orning of January 9, 200 8 , D r . Wa rrington conducted rounds at BMC and noted in Gene’s patient chart t hat he was “doing w ell” and would be discharged af ter receiving dialy sis that m o rning. Gene began hem odialy sis at 8:20 a.m . u nder Dr. Portner’s

care. H e was given heparin, a blood-thinner, and his blood pressure w as 1 41/69. However,

2at 10:15 a.m ., Gene had a large bloody stool; s o Dr. Portner cancelled Gene’s s chedul e d

discharge f

rom the hospital, and he was taken back t o his hospital room at 11:20 a.m . In the

m eantim e, Gene had three m ore bloody stools. ¶5. A t 1 2 : 09 p.m ., Dr W arrington was e n route f r om C leveland to C larksdal e t o s e e patients when he w as inf

orm ed by BMC of Gene’s bloody stools. He gave a telephone order f or the B MC nursing s taf

f to ty pe a nd cross-m atch blood and to call Dr. W right, who ordered

a transf usion of o n e u n it of b l ood and f or staf f t o c all him if Gene’s hem atocrit got below 26. 1 The blood transf

usion was started at 2 :15 p.m . Shortly thereaf t er, BMC contacted Dr. W a rrington to tell him that Gene w as com plaining o f pain; so the doctor ordered a low dose of Dem erol at 3:00 p.m . A t 3:15 p.m ., G e n e ’ s b l o o d p ressure was 79/49. Thirty m inutes later, his blood pressure dropped to 49/29; s o BMC called Dr. W arrington to provide a status update. He told BMC to c ontact his partner, Dr. Kim berly W ebb, w h o w a s a t B MC conducting rounds in his absence. ¶6. W h en Dr. W ebb arrived a f ew m om ents later, Gene was going into respiratory arrest (a “ code blue”). He was resuscitated and transf erred to BMC’s intensive care uni t ( I C U ).
Dr. W ebb issued a n order t o ty pe and cross-m atch f

our units of blood a n d transf use at 4:20
p.m , and she exam i ned G ene at 6:00 p.m . H ow e v e r , a short while later, Gene went into respiratory arrest a gain, and he d ied at 8 :08 p.m . The cause of d eath was r espiratory f ailure secondary to an alleged gastrointestinal (GI) bleed and end-stage renal disease.

1 A cco r d in g to th e reco r d , a h em ato crit read in g is a m easu rem en t o f a p erso n ’s b lo o d co u n t. A n o rm al co u n t is ab o u t 4 0

. G en e’s h e m ato crit w h en h e w as ad m itted w as 2 2

. O n th e m o r n in g o f Jan u ary 9 , it h ad im

p ro v ed to 2 9

. 3PROCEDURAL HISTORY

¶7. On March 10, 2010 , J e s s i e E a s l e y , t h e a d mi n i s t r a tor of Gene’s e state, f iled a

com plaint with the circuit court against P HC-Cleveland d/b/a BMC, CMC, Renal Care Group, a nd Dr. Portner. The com plaint alleged a wrongf

ul-death claim caused by healthcarep r ovider negligence and sought “m onetary dam ages f or def e ndants’ joint and com

bined negligent acts.” 2 ¶8. CMC f

iled a m otion f

or sum m ary judgm ent on March 2, 2 012, asserting that Easley ’s expert witness, D r. Carl B lond, f ailed to provide expert m edical testim ony establishing that CMC “was negligent i n the exam i nation, care and treatm ent of [ Gene], and that negligen[ ce]

was t he proxim ate cause o r proxim ate contributing cause of his d eath.” Finding Dr. Blond’s af f idavit “create[ d] a genuine issue of m aterial f act as t o the causal connection between the

treatm ent rendered and Easley ’ s death,” the circuit court denied the m otion on Decem ber 19, 2013. O n August 21, 2 017, CMC f iled a m otion to exclude Dr. Blond as an e xpert witness, which the court also denied. ¶9. A jury trial w as held Septem ber 11-14, 2 017. T he circuit court a dm itted Dr. Blond

as a n expert in internal m edicine, i n nephrology , and as a hospitalist. Dr. Blond opined that whe n D r . Wa r rington f

irst becam e aware of G ene’s bloody stools a t 12:09 p.m ., he or Dr. W e bb should have personally assessed the patient, transf erred Gene to the ICU , and

2 B M C , R e n al C a re G ro u p , an d D r. P o rtn er are n o t p arties to th is ap p eal. E asley v o lu n tarily d ism issed all claim s ag ain st R en a l C are G ro u p , an d th e c ircu it co u rt g ran ted D r. P o rtn er’s m o tio n f

o r su m m a r y j u d g me n t o n D ecem b er 1 0 , 2 0 1 5

. O n Ju ly 7 , 2 0 1 7 , B M C f iled a m o tio n f

o r p artial s u m m ary j u d g m en t, w h ich th e circu it co u r t g ran ted

. S u b seq u en tly , at tria l , t h e co u r

t g ran ted B M C ’ s m o tio n f o r a d irected v erd ict, f

in d in g E asley ’s ex p ert w i tn ess f ailed to estab lish a stan d ard o f care f o r th e B M C em

p lo y ees. 4consulted an endoscopic d o ctor t o f ind the active GI bleed. O n c ross-exam ination, Dr. Blond conceded that when G e n e w a s adm itted on Decem ber 30, D r. W a r

rington appropriately ref erred h i m to the surgeon, Dr. W right, and that Gene’s blood counts on the m orning of his death had im

proved since his adm ission day s earlier. ¶10. Af ter the plaintif

f rested, CMC m oved f

or a directed verdict and renewed its m otion to exclude Dr. Blond’s testim ony . The court denied the m o tions. Dr. W a rrington testif ied that he visited G ene during his m orning rounds, and his im pression of Gene’s condition was “[ t]hat every

thing was g ood.” He was not notif ied of Gene’s deteriorating condition (i.e., his blood p r e s s u r e o f 4 9/29) until 3 : 47 p.m . , a t which tim e he told BMC staf f to c ontact Dr. W e bb, who was at the hospital. W hen asked by c ounsel i f there was “any thing m ore that [ he

o r the other phy sicians] could have done to keep [ Gene] a live,” he replied, “No, si r . ” O n

cross-exam ination, Dr. W a rrington explained that he initially told BMC to call Dr. W right

to l ook at the patient, r ather than Dr. W ebb, because Dr. W right “was in the hospital” and was “the m ost qualif

ied person to take care of [ Gene’s] problem

at that m om ent.” ¶11. Dr. Robert Boy d, CMC’s expert witness in the f ield of surgery and m a naged care in

a hospital setting, opined that Dr. W arrington’s actions a f ter being inf

orm ed of the bloody stool—consulting Dr. W right and Dr. W ebb—wer e t h e appropriate s tandards o f care. Dr. Diedre Phillips, an expert witness in f am ily m edicine and in the coordination of m edical care by a f am ily m edicine phy sician in a hospital, f urther testif

ied t hat the standard of care did not require Dr. W arrington to transf e r Gene to the I CU when notif i ed o f the bloody stools, noting that G ene’s blood pressure was stable at that tim e and that t here was n o “indication he was

5actively b l eeding.”

¶12. The jury rendered a verdict against CMC and awarded dam ages of $744,042.25, and the circuit court entered a f inal judgm ent on Septem

ber 25, 2017. CMC f

iled a m otion f

or

a JNOV or a new trial, which the court denied on Decem ber 8, 2017. B ecause CMC did not receive notice of

the court’s order until February 2 018, it f iled a m otion f

or relief f rom the jud g me nt under M ississippi Rule of Civil Procedure 60(b). The court granted the CMC’s

m otion f or the relief

, vacated its Decem

ber 8 , 2017 o rder, and issu e d a new order on February 12, 2018, deny i ng the m otion f or a JNOV or a new trial and granting a rem ittitur

to $500,000 in accordance with Mississippi Code Annotated s ection 11-1-60 (Rev. 2014). 3 ¶13. CMC appealed the j udgm ent and, on J anuary 31, 2 019, f iled its appellant’s brief

. On April 9, 2019, Easley ’s attorney , E llis Turnage, f iled a m otion requesting additional tim e to f ile the appellee’s brief

, which had been due on March 2, 2019. Turnage claim ed his staf f had been instr u c t e d t o f

ile the m o tion f

or additional tim e o n M arch 2, but unbeknownst to him , they f

ailed to do so. CMC opposed the m otion, seeking relief under Mississippi Rule of Appellate Procedure 31(d), “including (but not l im ited to) the denial of oral argum ent to Appellee.” The Mississippi Suprem e Court denied the m otion f o r additional tim e, f

inding counsel’s reasons f

o r f a iling to f ile the appellee’s brief to be “inadequate.” CMC’s request f or relief under Rule 31(d) was dism issed a s “prem ature.” Easley has since f

i led a m otion requesting perm ission t o participate in oral argum e nt pursuant to Rule 31(d). There was no proper request f

or oral argum ent by either party

. Under Miss i s s i p p i R ule of A ppellate

3 T h e j u d g m en t h a s b een stay ed p en d in g th e ap p eal. 6Procedure 34(b), an appellee shall m ark “oral argum ent requested” on his principal brief , and the appellant “shall m ake this notation on his reply brief or, if n o reply brief is f iled, by letter within the tim e a llowed f

or f iling of the reply brief

. ” As the suprem e court denied Easley ’s request to f

ile an untim ely brief

, and no reply brief or letter r equesting oral argum ent was f iled by CMC, we did n ot grant oral argum e nt in t his case. Easley ’ s m o tion is hereby denied

as m oot. ¶14. CMC appeals the circuit court’s denial of its pre- and post-trial m otions—the m otion

to exclude Dr. Blond’s t estim o n y , the m otion f or sum m ary

judgm e nt, and the m otion f or a JNOV—on the basis that Dr. Blond’s testim ony was speculative and insuf f icient to support the verdict. Bef

ore considering the m erits of t h e appeal, we m ust address the appellee’s f ailure t o f i l e a b r ief

. A s the reviewing court, w e have two options. The f irst option is to “take t he appellee’s f

ailure to f ile a brief as a conf

ession of e rror a nd reverse.” Griffith v. W all , 224 So. 3d 1293, 1295 (¶8) (Miss. Ct. App. 2017) (quoting McGrew v McGrew , 184 So. 3d 302, 306 (¶10) (Miss. Ct. App. 2015)). “This should be done when t h e r e c o rd is

com plicated or volum inous, and the appellant has presented an apparent case o f error.” Id

. at 1296 (¶8). H owever, in “situations where there is a sound and unm istakable basis upon which the judgm ent m a y b e saf ely af f irm ed,” the s econd option “is t o disregard the appellee’s f

ailure to f

ile a brief and a f

f irm the judgm ent.” Id

. C onsidering the parties’

num erous court f

ilings, m edical records, and f our day s of trial testim ony , it is evident to this Court t h a t t he r ecord is com plicated and v olum inous, com prising twelve volum es. Accordingly , we w ill review CMC’s claim s t o determ ine i f th e r e i s “an apparent case of

7error.” DISCUSSION

¶15. In both h is original and supplem ental af f idavits, Dr. Blond stated t hat G ene “would have survived if

he had received blood and f luids on a STAT basis and had been prom ptly transf erred to ICU” af

ter the o ccurrence of the bloody stools. A rguing that his t estim ony was “unreliable and b a sed upon speculation and conjecture,” CMC f iled a m otion to exclude Dr. Blond as an expert witness, along with its m otion f or sum m ary judgm ent. The circuit court denied the m otions and accepted Dr. Blond as an expert witness at trial. ¶16. On direct exam ination, Dr. Blond testif ied t hat CMC e m

ploy ees, D rs. W arrington and
W e bb, violated the n ational standard o f care by f ailing “to transf

er [ Gene] to a n ICU setting f or c a ref ul m onitoring” a nd f

ailing “to directly s peak with an e n doscopist to explain that this patient has h ad a m ajor change in status and is passing bloody stoo l s . ” He said that when treating an acute, active GI bleed: [ A] pa t i e n t , has to be, num ber one, put in an ICU t o be monitored closely ; num ber two; aggressi v e care, generally

. W hen som eone has GI bleeding that’s signif

i cant, y o ur goal is, f

irst, t o resuscitate them with b lood and fluids , and then, if y ou believe, it’s an upper GI hem orrhage, you p r o c e e d w ith emergent endoscopy to f

i nd out where t hey ’re bleeding f rom , and, hopef

ully , be able to correct the bleeding or stop the bleeding that’s going on, a nd that’s done by som eone who d o es endoscopy

. So the first step is close monitoring, and the second step is to proceed with a n aggressive workup in an attempt to stop the bleeding

. (Em phasis added). Yet when asked on cross-exam ination what would have h appened had Gene been transf

e rred to the ICU at 12:09 p.m ., Dr. Blond adm itted t hat he was not certain. Q. Now, if [ G ene] had be e n i n t h e I C U , i s n ’ t i t t r u e t hat the blood pressures that we’ve just gone over -- the blood pressure that we r ead

8right bef ore we began to see any blood -- would have be e n t h e sam e blood pressure that -- I m ean, b e c a u s e it’s in the ICU doesn’t change what the blood pressure would h ave b een. It wo u l d have been the sam e. A. I think that’s speculation. Q. Do y o u? And I think so too. In f act, y ou can’t tell this [ c]ourt a nd this jury what would have happened if he had been transf

e r red to t he I CU at 12:09, can y ou? A. I can tell y ou what could happen, but I can’t t e l l y o u w h a t w o u ld happen. ¶17. Af ter the plaintif

f rested its case, CMC’s attorney renewed t he m otion to exclude Dr. Blond’s expert testim ony , or alternatively , t o s trike his testim ony that Gene should have been transf erred to the ICU f

or m onitoring af

t e r the bloody stools were reported, citing The University of

Mississippi Medical Center v. Littleton , 213 So. 3d 525 (Miss. Ct. App. 2016).
In Littleton , Dr. David W iggins provided m edical expert testim ony at trial that the cause of death f o r t he d eceased was a lack of m onitoring and that the attending phy sicians breached the standard of care b y n o t transf erring t he patient to t he ICU. Id

. at 531 (¶13). The trial

court f ound the m edical center liable and awarded dam ages to the p laintif f

. Id

. at 534 (¶24). This Court reversed and rendered the judgm ent, holding:
Dr. W iggins testif

ied that if Cleopatra had been in the ICU, those phy s icians and nurses would have noticed [ her] declining c ondition, because she would have been m ore caref

ully m onitored, a n d w ould have been provided t reatm ent to prevent her d e a t h. However, he did not specif y t he exact nature of her declining condition, or the exact treatm ent the I CU could have provid e d to sav e h e r l i f

e, b esides “m onitoring.” H e also did not s tate what ty pe of specialists would have been called in to treat Cleopatra in the ICU.

. . . .

9Treatm ent in the ICU does not guarantee survival; i t was m ere s peculation t hat

ICU care would have changed Cleopatra’s outcom e, m uch less increased her probability

of survival bey ond f

if ty percent. W e f ind the tri al court abused its discretion in rely ing upon Dr. W iggins’s speculative testim ony in o rder to f ind UMMC liable f

or Cleopatra’s death. Dr. Wi g g ins claim ed that adm itting Cleopatra to the ICU would have save d h e r lif e f rom an unknown c ause of death. Yet he of f ere d n o s pecif

ics on the treatm ent that s he would have received, and how m onitoring would have saved her lif e. Id

. at 5 38-59 (¶¶36-39). T he circuit court acknowledged t hat under L ittleton , it would not be suf f i cient f or Dr. Blond to sim

ply state that “the s tandard of care is to ref er him to the ICU and that it would have been a dif f erent result.” H owever, in deny ing both CMC’s m otion to exclude the witness’s testim ony and m otion f

o r a directed verdict, the judge reasoned:
I think i t was one or two questions t hat M r. Turnage asked. In a m otion f or a directed verdict, i f I take all of t he evidence m ost f avorable to the plaintif

f , I’ve got to look at those one or two questions, which i s going to be looked at on appeal. Yes, y o u [ (CMC)] had D r. Blond e a ting o ut of y our hand. I m ean, he agreed w ith every

thing y ou said. But that is in d irect conf lict with the one or two questions that were directly on point that Mr. Turnage asked. Those questions involved Mr. Turnage’s asking Dr. Blond t o provide the standard o f care f or a GI bleed. Dr. Blond responded: And so y ou really have to get af ter y our doctor w ho d oes the endoscopy to be there on the scene. W hat y ou want t o do is s t abilize the patient, m o nitor them in the ICU, get the blood pressure u p, an d get som eone down to do the endoscopy

as soon as possible. ¶18. “The standard of r e v i e w f o r t h e a d mission or suppression of evidence, including expert t estim ony , is an abuse of discretion.” U tz v. Running & Rolling Trucking Inc. , 32 So. 3d 450, 457 ( ¶8) (Miss. 2010). In M ississippi Transportation Commission v. McLemore , 863 So. 2d 31, 35 (¶5) (Miss. 2 003), the Mississippi S uprem e Court adopted a test to determ ine

1 0the admi s s ibility of expert witness testim ony as stated in Daubert v. Merrell Dow

Pharmaceuticals Inc ., 5 09 U.S. 579 (1993), and a s m odif ied i n Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999). Under the m odif ied Daubert standard, the trial court m ust “perf o rm a two-pronged inquiry ”—is the testim ony relevant, and is i t reliable? M cLemore , 863 So. 2 d at 38 (¶16). An expert witness’s opinion cannot be m ere speculation but m ust be based “on the m ethods and procedures of science.” Id. at 3 6 (¶11). “[ N ]othing is absolutely certain in the f

ield of m edicine, b ut the intent of t he law is t hat i f a phy sician cannot f orm an opinion with suf

f icient certainty so as to m ake a m edical judgm ent, neither can a jury use that inf orm ation to reach a decision.” Univ. of M iss. Med. C

tr. v
. Lanier , 97 S o. 3d 1197, 1203 (¶22) (Miss. 2012) (quoting Catchings v. State , 684 So. 2d 591, 597 (Miss. 1996)). ¶19. CMC urges us to f ind that the circuit c ourt erred in deny ing its m otion f or sum m ary jud g me n t. This Court has held that “appeals f rom the denial of a m otion f or sum m ary judgm ent are interlocutory in nature and a r e r e n d ered m oot by a trial on the m erits.” Franklin Collection Servs. Inc. v
. Collins , 206 So. 3 d 1282, 1284 (¶8) (Miss. C t. App. 2016). Theref ore, beca u s e a t r ial on the m erits was h eld, the court’s ruling on C MC’s sum m ary judgm ent m otion “is not reviewable on appeal and

. . . is not a basis f or r eversal.” Id

. at 1285 (¶10). ¶20. W e agree with CMC that Dr. Blond’s expert testim ony f ai l e d t o e s t a b l ish that Dr.
W a r r i n gton’s negligence proxim ately caused Gene’s death and that the court erred in den y i n g its m otion f

or a JNOV. In order to dem onstrate a p rim a f acie c a se of m edical n egligence, the plaintif f m ust prove:

1 1(1) the def endant had a duty

to conf o rm to a specif

ic standard of c o nduct f

or the p r o t e c tion of others against an unreasonable risk o f injury ; ( 2) the def endant f ailed to c onf

orm to that required standard; (3) the def endant’s breach of d

u ty was a p roxim a te cause o f t h e plaintif f ’s injury ; and ( 4) the plaintif f was injured as a result. Harper v. Hudspeth R eg’l Ctr. , 270 So. 3d 239, 244 (¶20) (Miss. Ct. Ap p . 2018) (quoting Glenn v. Peoples , 185 So. 3d 981, 985 (¶11) (Miss. 2015)). To prove m edical negligence, the expert testim ony m

ust establish t h at the def

endant’s f ailure to conf

orm to the required standard of care “was the p roxim ate cause, o r proxim ate contributing cause, of the alleged injuries.” McDonald v. Mem’l Hosp. at Gulfport , 8 S o. 3 d 175, 180 (¶12) (Miss. 2009). If the “plaintif

f f a ils to produce s uf

f icient adm issible evidence to establish a prim a f a cie case,

a [ JNOV] is appropriate.” Littleton , 213 So. 3d a t 5 36 (¶29) (citing Cleveland v. Hamil , 119 So. 3d 1020, 1024 (¶14) (Miss. 2013)). ¶21. As noted b y t h e c i r c u i t c o u r t , t he e xpert’s m erely stating that Gene would have survived had he been transf erred to the ICU sooner would have b een speculative as discussed in Littleton

. But unlike the expert in Littleton , Dr. B lond also opined that a specialist should have been consulted to treat the GI bleed and provided specif ics on treatm ent. The evidence

was undisputed that when Dr. W arrington becam e a ware of the bloody stools at 12:09 p.m ., he had BMC staf

f prom ptly consult with Dr. W right, the surgeon who had perf orm ed Gene’s EGD a f ew day s earlier—a f

a c t both dissenting o pinions com p letely disregard. As Dr. W a rrington test i f

i e d , Dr. W right was “the m o st qualif i ed person to take care of [ Gene’s] problem at that m om e nt.” Dr. W r ight prom p tly responded and assessed Gene’s condition, ordering m ore blood. Dr. Blond acknowledged as m uch on cross-exam ination:

1 2Q. W ell, there’s really n othing we’ve identif ied that Dr. W arrington could have done f

rom where h e w a s , other than what he did, a nd that is to include and a ssoc i a t e and involve a surgeon. There’s already a nephrologist on board, and t hey are m anagin g t h is patient with blood pro d u c t s , and they are m aking d ecisions based on the patient’s care having been coordinated by Dr. W arrington; is that right? A. That’s correct. And as already d iscussed, testim ony that the f ailure t o transf

er a patient to ICU f

or

m onitoring, standing alone, is insuf f icient to establish negligence. ¶22. Having reviewed the e xpert testim ony in this case, we f ind that the evidence was not suf f i cient to establish causation and that the circuit court erred in deny i ng the m otion f or a JNOV. Accordingly , we reverse and render the judgm ent. ¶23. REVERSED AND RENDERED. CARLTON AND J. W I L SON, P.JJ., GREE N L E E , TINDELL, L AWRENCE AND C. WILSON, JJ., CONCUR. WESTBROO K S , J ., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., DISSENTS WITH SEPARATE WRIT T E N O PINION, J O INED BY WESTBROOKS AND McCARTY, JJ. McCARTY, J., DISSENTS WITH SEPARATE WRITT E N O P I NION, JOINED BY WESTBROOKS AND McDONALD, JJ. McDONALD, J., DISSENTING: ¶24. The m ajority reverses the jury ’s verdict af ter holding t hat Easley did not suf f iciently
prove causation. The jury f o und: “W e the jurors by a vote of 12 to 0 f ind that M r. Easley ’s death was proxim ately caused or contribute d t o b y D r. W arrington of Cleveland Medical Clinic due to m edical negligence to the care of Gene Autrey

Easley .” ¶25. The m ajority correctly acknowledges that “nothing is absolutely c ertain in m edicine.”
Univ. of Miss. M

ed. Ctr. v. L anier , 9 7 So. 3d 1197, 1203 ( ¶22) (Miss. 2012) (quoting

1 3Catchings v
. State , 6 84 S o. 2d 591, 597 (Miss. 1 996)). Our Suprem e C ourt r e c e n t ly

reiterated t h a t t h e p l a i ntif f is not required to prove c ausation with certainty

. Norman v. Anderson , 262 S o. 3d 520, 524 ( ¶13) (Miss. 2019). However, t he m a jority h eld that Dr. Blond’s testim ony f

ailed to establish that Dr. W arrington’s negligence caused Gene’s death and, theref

ore, the court erred in deny ing CMC’s m otion f or a JNOV. The Suprem e Court held the f ollowing i n Estate of Gibson v. M agnolia Healthcare Inc. 91 So. 3d 6 16, 625 (¶22) (Miss. 2012): Generally , expert testim ony is needed i n a m edical m alpractice case to prove that a breach of the standard of care c aused or contributed to t he a lleged injury

. However, a m edical expert does not have to testif y with “absolute certainty ,” but testim ony , taken as a whole, m ust establish “ reasonable m edical certainty ” that the negligence caused the injuries at issue. Additionally , negligence and causation m ay be established by circum stant i a l e v i d ence, “but this rule is qualif ied to the extent that the circum stances shown m u st be such as to take the case out of the r ealm of c onj e cture and place it within the f ield of legitim ate inf erence.” “V e r d i c t s must rest upon reasonable probabilities and not upon m ere possibi lities.” T h is Court has r uled that “only in rare and exceptional cases” should the court take such a case f rom the jury

. (Citation om itted). ¶26. In this case, I believe that causation was established by t h e f o l l o w i n g d i r e ct and circum stantial e vi d e n c e : Dr. B lond, Appellee’s expert, t estif ied extensively about the standard of care needed to treat a gastric bleed. T he f o llowing exchange occurred during his direct exam ination: Q. Okay . Dr. Blond, in y our opinion, based upon a reasonable degree of m e dical probability , what did the nationwide standard of care f or a GI bleed objectively

require Dr. W arrington to do in this patient? A. W ith acute, active bleeding that’s pote n t i a l ly with large am ounts of blood, a patient has to be, num ber one, put in an ICU to be m onitored

1 4closely ; num ber two, aggressive care, generally

. W hen s om eone has GI bleeding that’s signif

icant, y our goal is, f

irst, to resuscitate [ h im ] with blood and f

luids, and then, if y ou believe it’s a n upper GI hem orrhage, y ou proceed with em ergency endoscopy to f ind out where they ’ re bleeding f

rom , and, hopef

ully , be a b l e t o c o rrect t he bleeding or stop the blee ding that’s going on, and that’s done by som eone w ho does endoscopy

. So the f

irst step is close m onitoring, a nd t he second step is to procee d w i t h an aggressive workup i n an attem pt to stop the bleeding.

. . . . Q. All right. D r. Blond, in y our opinion, based upon a reasonable degree of m e dical probability , did Dr. Jam es W a rrington and Dr. K i m Webb deviate f r om the nation w i d e s tandard of c are f or a dm itting a p atient with a GI bleed? A. On the last day , y e s, sir.

. . . . A. W hen y ou have a large, bloody stool, t hat s uggests a very large b leed, and that m eans that there’s b een a m ajor change in their status. And so y ou really have to get af

ter y our doctor who does the e ndoscopy to be there on the s cene. W hat y ou want t o do is stabilize the patient, m o nitor [ him ] in ICU, get the blood pressure u p , a n d get s om eone down to the endoscopy

as soon as possible. Q. Okay

. Dr. Blond, would y ou explain to the jury y our opinion, based on a rea s o n a b l e d egree of m edical probability , of what the nationwide standard of

care required Dr. W arrington to do to f i nd the GI bleed. A. Again, to f

ind the bleed wo u l d b e by endoscopist. If there’s not an endoscopist present, y ou really can’t f ind the bleed. ¶27. It is undisputed that Dr. W arrington, Gene’s adm itting phy sician, f ound out at 12:09
p . m . a b o u t the bleed that Dr. Blond characterized as a “m assive gastrointestinal h em orr h a g e , ” and he f ailed to assess Gene during this tim e. D r. W arrington also adm i tted that Gene had

a g astric blood leak that no one f ound and no one f

ixed, even though CM C h a d the

1 5equipm ent to do both. According to Dr. Blond, based upon a reasonable degree of m edical

probability , Gene’s death was caused by “[ a] gastrointestinal bleed.” ¶28. It is undisputed that the doctors at the CMC did not personally assess Gene between 12:09 p .m ., when Dr. W arrington was notif i ed of the b loody stools, and Gene f irst coded at 3:55 p.m . Dr. W arrington testif ied: Q. And at 3:55, the code blue is going of f then; right? A. Yes, sir. Q. And, certainly , if a phy sician - - if Dr. W ebb had assessed the patient, under the standard of

care notes; right? A. Yes, sir. Q. And s o it would be reasonable to inf e r, sin c e t h i s is the only progress note that w as written, that even though Dr. Kim W ebb w a s i n the hospital, she never assessed the patient; right.

. . . . Q. And that doesn’t s a y that she [ Dr. W e bb] assessed the patient - - Mr. Easley - - bef o re he coded, does it? A. Not bef

ore he coded. I thought y ou had asked did she write a note, and I knew there was a note in there f o r that day

.

. . . . Q. . . . Dr. W ebb had assessed him af ter the f i rst code blue; right? A. Yes, sir. Q. And that was at [ 4 :00 p.m .]? A. Yes. Q. So f

rom 12:09 to [ 4:00 p.m .], t hat would be right at f our h ours or about

1 6nine m i nutes short of being f our hours. A. Yes, sir. Q. And y ou agree, then, that the chart indicates that no one on the m edical staf f at CMC c am e to Bolivar Medical Center to personally assess Mr. Easley during that tim e period; right? A. There’s none that’s ref lected in that note, sir. ¶29. Based upon the f

oregoing, the jury had am

ple evidence to conclude that “Mr. Easley ’s death was proxim ately caused or co n t r i b u t e d to by Dr. W arrington of Cleveland Medical Clinic.” “W hen the jury has returned a verdict in a civil case, w e are not a t l iberty to direct that judgm ent be e ntered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light m os t f a v o r a ble to the verdict, no reasonable, hy pothetical juror could have f ound as t he jury f

ound.” Busick v. St. John , 856 So. 2d 304, 307 (¶7) (Miss. 2 003). Causation is generally to be determ ined b y the jury

. I d. W ith regard

to the suf f iciency of the evidence, “this court w il l c o n s ider the evidence in the light m ost f avorable to the appellee, giving that party t he benef it of all f avorable inf

e rence that m ay be reasonably drawn f

r om the evidence.” Spotlite Skating Rink I nc. v. Barnes , 988 So. 2d 364, 368 (¶10) (Miss. 2 008). “A jury ’s verdict is g iven great def erence b y t h i s C o u r t , and conf licts of evidence presented at trial are to be resolved by the jury .” Johnson v. St. Dominics-Jackson Mem’l Hosp. , 967 So. 2d 20, 23 (¶10) (Miss. 2007 ) ( i n t e rnal quotation

m arks om itted). The expert testim ony of Dr. Blond regarding causation was suf f icient to sustain the j ury v e rdict. It is o bvious to doctors a nd l a y persons alike that if a m a ssive GI bleed is not repaired, a patient will die. In m y opinion, a reasonable juror could f ind, as did

1 7this jury , that the f ailure to assess Gene’s GI bleed f or over f our hours proxim ately caused or contributed to his death. ¶30. For these reasons, I respectf ully dissent. WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION. McCARTY, J., DISSENTING: ¶31. In addition to d isregarding the literally handwritten f inding o f the jury as to proxim ate
cause, I believe w e c o n tinue to raise the standard of proof i n m edical m a l practice actions. This i s exem

plif ied by the m ajority ’s crucial reliance on a recent case f rom our Court, upon which the reversal a nd render is built. Univ. of Miss. Med. Ctr. v. Littleton , 213 S o. 3d 525, 538-39 (¶¶38-39) (Miss. Ct. App. 2016). ¶32. Our S up r e m e C o urt h as ruled that “[ i]n cases alleging that d eath w as caused by the negligence of a health care provider, proxim ate cause m ust be established b y a m edical doctor.” Mariner Health C are Inc. v. Estate of Edwards ex re l

. T u r n e r , 9 6 4 So. 2d 1138, 1 1 4 4 ( ¶ 8 ) ( M iss. 2007). Critically , in Mariner the Suprem e Court ruled that it “does not require that expert testim ony conclusively es tablish the cause of death.” I d

. (em phasis added). I t is only that “expert testim ony m ust, a t a m inim

um , show that deviations f rom the

sta n d ard of nursing c are caused or contributed to the decedent’s death.” Id

. (em phasis added). ¶33. Mariner then c raf

t s a clear r ule: an expert does not have t o t estif y with certainty about the cause of death, but an expert can establish p roxim ate cause t hrough showing d eviations of t h e s t a n dard of care that caused or contributed to the death. The rest is f or the jury to

1 8determ ine.

¶34. Yet in Littleton , this Court raised the b ar bey ond this m odest and practical standard, and decided there should be m ore certainty f rom e xperts, even when t he expert “agreed that the exact cause o r m e chanism of [ the patient’s] death was unknown

. . . .” Littleton , 213So. 3d at 537 (¶34). As a result, w e ruled that “since he [ the plaintif f ’s expert] could not identif y which p ossible com

plication of m eni n g itis caused [ the patient’s] heart to stop, his opinion that the ICU would have s a v e d her lif e is m e r e speculation and insuf f icient to establish causation.” Id

. This is bey ond what the Suprem e Court set out in Ma r i n e r , a n d theref ore Littleton r aised the b ar bey o nd what has b een long required to m eet the standard of proof

. Under the m ajority ’s f

orm ulation i n this case, exper t s h a v e to know what caused death—despite the f

act that the Supreme C o u r t “ d oes not require that expert testim ony conclusively e stablish the cau s e o f d e a t h

. ” Mariner , 964 So. 2d a t 1 144 (¶8) (em phasis added). ¶35. To create a s t andard in contr a v e n t i o n o f S uprem e Court precedent is b ey ond our
power in t he f

irst place, but we a lso then create an im possible h u r d l e f

or those s eeking to establish causation. It is the r are expert indeed w ho will b e able to testif y that s he knows conclusively what happened and w hat caused som e o ne’s death. Hum an b odies a nd m edical

care are not so easily deciphered, a nd our precedent has allowed f o r that uncertainty

–and f or a jury of the def endants’ peers to resolve the dispute in accord with our Constitution. ¶36. As the m ajority points out, we did not h ave a properly f i led request f

or o ral argum ent. W e m ust take the procedures and d eadlines established by o ur Rules of Appellate Procedure

1 9seriously

. W e rule today , however, without the b enef it of a response brief f

rom the Easley f am ily

. Giv e n t h a t this appeal i nvolves the death of a Mississippian and the jury rendered

a verdict in f

avor o f his f

am ily , I would have pref erred having their in p u t through supplem ental brief

i ng or oral argum ent bef

ore we issue this decision. ¶37. For these reasons, I respectf ully dissent. WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.

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