IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 97-CA-01639-COA RUBY LORENE BICKHAM, AS ADMINISTRATRIX FOR THE ESTATE OF TAMARA BICKHAM; CHRISTOPHER MATTHEW BICKHAM AND CHRISTOPHER MATTHEW BICKHAM II, A MINOR, BY AND THROUGH HIS NEXT FRIEND, CHRISTOPHER MATTHEW BICKHAM APPELLANTS v. DR. FRED Y. GRANT, DR. JOHN S. HARRIS, RUSH FOUNDATION HOSPITAL AND RUSH MEDICAL GROUP, P. A. APPELLEES
DATE OF JUDGMENT: 09/25/1997 TRIAL JUDGE: HON. LARRY EUGENE ROBERTS COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: JAMES A. WILLIAMS ATTORNEYS FOR APPELLEES: MARK P. CARAWAY WILLIAM BENNETT CARTER NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE TRIAL COURT DISPOSITION: AFTER A TRIAL, THE JURY ENTERED A VERDICT FOR ALL THE DEFENDANTS. DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 5/29/01 MOTION FOR REHEARING FILED: 6/13/2001; denied 4/16/2002 CERTIORARI FILED: 4/30/2002; granted 10/10/2002 MANDATE ISSUED:
ON MOTION FOR REHEARING
EN BANC
IRVING, J., FOR THE COURT:
¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted.
STATEMENT OF THE CASE AND ISSUES
¶2. Ruby Lorene Bickham, as administratrix for the estate of Tamara Bickham, Christopher Matthew Bickham and Christopher Matthew Bickham II, a minor, by and through his next friend, Christopher Matthew Bickham (hereinafter collectively referred to as Bickham) filed a medical malpractice suit against Dr. Fred Grant, Dr. John S. Harris, Rush Medical Group, P.A. and Rush Foundation Hospital (RFH) stemming from the death of Tamara Bickham. ¶3. The case was tried before the Circuit Court of Lauderdale County, and the jury returned a verdict in favor of all defendants. Bickham now appeals and raises the following issues which are taken verbatim from Bickham's statement of the issues:
1. WHETHER THE TRIAL JUDGE MAKES IMPERMISSIBLE COMMENT ON THE EVIDENCE WHEN HE INSTRUCTS THE JURY THAT THE EXPERTS FOR THE DEFENDANTS HAVE PRESENTED TESTIMONY OF AN ALTERNATIVE TREATMENT METHOD AND IF THE DOCTOR USED HIS "BEST JUDGMENT" IN CHOOSING A TREATMENT AND IT RESULTED IN DEATH HE IS NOT LIABLE.
2. WHETHER, WHEN HIGHLY REPUTABLE EXPERTS FOR THE PLAINTIFFS TESTIFY THAT THE DEFENDANT DOCTORS IGNORED COMMON AND ORDINARY SIGNS AND SYMPTOMS, FAILED TO ORDER DIAGNOSTIC TESTS AND ALLOWED THE DISEASE TO GROW, WITHOUT GETTING A CONSULT AND DEFENDANTS OFFERED ABSURD AND HIGHLY RISKY EXPLANATIONS OF WHEN TO GET A CONSULTATION, THEN A JURY VERDICT FOR THE DEFENDANTS IS AGAINST THE OVERWHELMING WEIGHT AND CREDIBILITY OF THE EVIDENCE AND A NEW TRIAL SHOULD BE GRANTED.
3. WHETHER THE PLAINTIFFS WHOSE DECEASED WAS ASSIGNED BY THE HOSPITAL TO A PHYSICIAN WHEN SHE APPEARED AT THE HOSPITAL EMERGENCY ROOM AND THE HOSPITAL HAS RULES AND REGULATIONS THAT CONTROL AND DIRECT THE PHYSICIAN AND MAKE MANDATORY THAT HE ATTEND TO ER ADMISSIONS AND OTHERWISE THROUGH BUILDING CONSTRUCTION, ADMISSION FORMS, PUBLIC ADVERTISING AND USE OF THE HOSPITAL "LOGO" REPRESENT TO THE PUBLIC THE DOCTOR IS ITS DOCTOR THEN APPARENT AUTHORITY OR OTHER AGENCY PRINCIPLES APPLY AND THE ISSUE OF AGENCY AND RESPONDEAT SUPERIOR SHOULD HAVE BEEN GIVEN TO THE