Hall v. Hilbun (466 So.2d 856) 1985

Supreme Court of Mississippi/h2>

This matter is before the Court on Petition for Rehearing presenting primarily the question whether we should, as a necessary incident to a just adjudication of the case at bar, refine and elaborate upon our law regarding (a) the standard of care applicable to physicians in medical malpractice cases and (b) the matter of how expert witnesses may be qualified in such litigation. We greatly expanded the old locality rule in King v. Murphy. Experience and reason suggest that further refinements are necessary and in the interest of justice, generally and in this case.

When this matter was before the Court on direct appeal, we determined that the judgment below in favor of the surgeon, Dr. Glyn R. Hilbun, rendered following the granting of a motion for a directed verdict, had been correctly entered, two justices dissenting and two justices concurring specially. That result was perceived as required under our old locality rule, pre-King variety, pursuant to which the plaintiff's offer of the expert testimony of two eminently qualified physicians from Cleveland, Ohio, had been excluded.

For the reasons set forth below, we now regard that our original decision was incorrect. The opinion formally released on November 9, 1983, is withdrawn and instead thereof the instant opinion is substituted. The judgment of the Circuit Court is vacated and this case is remanded for a new trial on all issues.

Terry O. Hall was admitted to the Singing River Hospital in Jackson County, Mississippi, in the early morning hours of May 18, 1978, complaining of abdominal discomfort. Because he was of the opinion his patient had a surgical problem, Dr. R. D. Ward, her physician, requested Dr. Glyn R. Hilbun, a general surgeon, to enter the case for consultation. Examination suggested that the discomfort and illness were probably caused by an obstruction of the small bowel. Dr. Hilbun recommended an exploratory laporatomy. Consent being given, Dr. Hilbun performed the surgery about noon on May 20, 1978, with apparent success.

Following surgery Mrs. Hall was moved to a recovery room at 1:35 p.m., where Dr. Hilbun remained in attendance with her until about 2:50 p.m. At that time Mrs. Hall was alert and communicating with him. All vital signs were stable. Mrs. Hall was then moved to a private room where she expired some 14 hours later.

On May 19, 1980, Glenn Hall commenced this wrongful death action by the filing of his complaint (nee declaration) in the Circuit Court of Jackson County, Mississippi. Named as defendants were Glyn R. Hilbun, M.D., and the Singing River Hospital, its administrator and several then unknown nurses.

This action was called for trial on July 13, 1981. Prior to that time all defendants with the exception of Dr. Hilbun had been dismissed. Not only was Dr. Hilbun the sole defendant at trial, he is the sole appellee here.

At trial Glenn Hall, plaintiff below and appellant here, described the fact of the surgery. He then testified that he remained with his wife in her hospital room from the time of her arrival from the recovery room at approximately 3:00 p.m. on May 20, 1978, until she ultimately expired at approximately 5:00 a.m. on the morning of May 21. Hall stated that his wife complained of pain at about 9:00 p.m. and was given morphine for relief, after which she fell asleep. Thereafter, Hall observed that his wife had difficulty in breathing which he reported to the nurses. He inquired if something was wrong and was told his wife was all right and that such breathing was not unusual following surgery. The labored breathing then subsided for an hour or more. Later, Mrs. Hall awakened and again complained of pain in her abdomen and requested a sedative, which was administered following which she fell asleep. Mrs. Hall experienced further difficulty in breathing, and her husband reported this, too. Again, a nurse told Hall that such was normal, that patients sometimes make a lot of noise after surgery….

Dr. Hilbun was called and came to the hospital immediately only to find his patient had expired. The cause of the death of Terry O. Hall was subsequently determined to be adult respiratory distress syndrome (cardio-respiratory failure).

Dr. Hilbun was called as an adverse witness and gave testimony largely in accord with that above. He stated Dr. Ward requested consultation concerning Mrs. Hall's illness. He related that his diagnosis of a blocked intestine was correct, as revealed by the surgery, and that the surgery was a success. He testified that a surgeon operating in the Singing River Hospital was assisted by the nurses in the surgical ward who were on duty at the time, and that he had no option in their selection, had no way of knowing their qualifications, but did assume they were competent because they were selected by the hospital for duty in the surgical ward.

Dr. Hilbun stated the surgery was performed on a Saturday. Following the patient's removal to her room, he "went home and was on call that weekend for anything that might come up." Dr. Hilbun made no follow-up contacts with his patient, nor did he make any inquiry that evening regarding Mrs. Hall's post-operative progress. Moreover, he was not contacted by the nursing staff or others concerning Mrs. Hall's condition during the afternoon or evening of May 20 following surgery, or the early morning hours of May 21, although the exhibits introduced at trial disclose fluctuations in the vital signs late in the evening of May 20 and more so, in the early morning hours of May 21. Dr. Hilbun's next contact with his patient came when he was called by Glenn Hall about 4:55 or 5:00 that morning. By then it was too late.

Ironically, during those early morning hours of May 21, Dr. Hilbun was called by a member of the nursing staff concerning a patient who was in a room adjoining Mrs. Hall's, but Dr. Hilbun was not advised of Mrs. Hall's condition and apparently he did not inquire.

The autopsy performed upon Mrs. Hall's body revealed the cause of death and, additionally, disclosed that a laporatomy sponge had been left in the patient's abdominal cavity. The evidence, however, without contradiction establishes that the sponge did not contribute to Mrs. Hall's death. Although the sponge may ultimately have caused illness, this possibility was foreclosed by the patient's untimely death.

Plaintiff's theory of the case centered around the post-operative care provided by Dr. Hilbun. Two areas of fault suggested were Dr. Hilbun's failure to make inquiry regarding his patient's post-operative course prior to his retiring on the night of May 20 and his alleged failure to give appropriate post-operative instructions to the hospital nursing staff.

When questioned at trial, Dr. Hilbun first stated that he had practiced for 16 years in the Singing River Hospital and was familiar with the routine of making surgical notes, i.e., a history of the surgery. He explained that the post-operative orders were noted on the record out of courtesy by Dr. Judy Fabian, the anesthesiologist on the case. He stated such orders were customarily approved by his signature or he would add or subtract from the record to reflect the exact situation….

As long as my services are needed. Insofar as the record reflects, Dr. Hilbun gave the nursing staff no instructions regarding the post-operative monitoring and care of Mrs. Hall beyond those detailed in his testimony quoted above. Dr. Hilbun had no contact with Mrs. Hall after 3:00 p.m. on May 20. Fourteen hours later she was dead.

The plaintiff called Dr. S. O. Hoerr, a retired surgeon of Cleveland, Ohio, as an expert witness. The record reflects that Dr. Hoerr is a cum laude graduate of the Harvard Medical School, enjoys the respect of his peers, and has had many years of surgical practice. Through him the plaintiff sought to establish that there is a national standard of surgical practice and surgical care of patients in the United States to which all surgeons, including Dr. Hilbun, are obligated to adhere. Dr. Hoerr conceded that he did not know for a fact the standard of professional skill, including surgical skills and post-operative care, practiced by general surgeons in Pascagoula, Mississippi, but that he did know what the standard should have been.

Relying on Dazet v. Bass, which at the time was this Court's latest utterance on the subject of who may testify as an expert witness in a medical malpractice action, the trial court ruled that Dr. Hoerr was not qualified to give an opinion as to whether Dr. Hilbun's post-operative regimen departed from the obligatory standard of care. In his ruling the trial judge made the following statement:
I think the local rule [the locality rule] has been applied too restrictively in this state, and my basic belief is that it has got to be enlarged. But I don't believe our Supreme Court has gone that far and I personally don't think it can be applied nationally. Anyway, that is left up to the Supreme Court and I hope this case will help verify that.

Thereafter, the plaintiff made an extensive question and answer proffer of Dr. Hoerr's testimony.

Dr. David Peter Lango Sachs, also of Cleveland, Ohio, was offered by the plaintiff as a witness, and it appears that he was eminently qualified in his specialty of pulmonary diseases. He also was unfamiliar with the standard of care in Pascagoula, Mississippi, although well versed in the national standards. Dr. Sachs was not permitted to testify because of this court's ruling in Dazet v. Bass. An appropriate proffer of Dr. Sachs' testimony was made by plaintiff….

Medical malpractice is legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of the services he provides. A physician does not guarantee recovery. If a patient sustains injury because of the physician's failure to perform the duty he has assumed under our law, the physician may be liable in damages. A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.

The twin principles undergirding our stewardship of the law regulating professional liability of physicians have always been reason and fairness. For years in medical malpractice litigation we regarded as reasonable and fair what came to be known as the "locality rule" (but which has always consisted of at least two separate rules, one a rule of substantive law, the other a rule of evidence).

First, under the locality rule, we have heretofore recognized as a rule of substantive law that a physician is bound to bestow to each patient such reasonable and ordinary care, skill, and diligence and to exercise such good medical judgment as physicians and surgeons in good standing in the same neighborhood or locality, in the same general line of practice, ordinarily have and exercise in like cases.

Second, as a rule of evidence, we have heretofore held that, in addition to possessing all of the other qualities requisite for judicial acceptance as an expert witness generally, a medical expert would not be allowed to testify in a medical malpractice case unless he practiced in the neighborhood or locality and was familiar with the local standard of care.

Both "prongs" of the locality rule have fallen under attack in recent years. It is urged that the circumstances which have given rise to the rules have passed out of existence. The practice of medicine in general and medical malpractice litigation in particular are said to have achieved a level sophistication that require a modernization of our law. There is merit in the attack. Suffice it to say that the rules we have heretofore employed do not seem nearly so consonant with reason and fairness as they once did.

Just over two years ago we recognized that all was not well in this troubled area of the law. In King v. Murphy, we greatly expanded the concept of the "neighborhood or locality", within the contemplation of the substantive rule regulating the standard of care, to include geographically at least the entire state of Mississippi plus "a reasonable distance adjacent to state boundaries.".

King also removed the geographical restrictions on the pool from which expert witnesses might be drawn by either adversary. King held that
an expert witness who is knowledgeable of, and familiar with, the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this state. (emphasis added). …First, King recognizes that the locality rule is not and has never been just one rule. King draws a distinction between the substantive rule of law governing the liability vel non of physicians and the rule of evidence regulating the appearance of expert witnesses. In this sense King establishes a satisfactory general framework within which to handle these cases in the future.

Second, regarding the substantive standard, reflection suggests that further refinement and clarification are necessary. More sharpness needs to be brought to the distinction between the level of care a physician may be expected to render by reference to his skill, knowledge, judgment and general competence, on the one hand, and that which may reasonably be expected by reference to the facilities, equipment, personnel and resources reasonably available to him in the course of treatment. On the point of reasonable availability of resources, there are great variances from rural to urban areas within the King-defined "locality or neighborhood". These need be taken into account. Further, for the sake of intellectual honesty, we should go ahead and state forthrightly what everyone who has read King surely knows: that the "locality or neighborhood" concept as we have heretofore known it has been obliterated.

Third, King's evidentiary rule regulating expert witnesses seems clear to us. The cases that have come before the Court since King, however, suggest that it is not wholly understood in some quarters. On this point, we wish to make it clear that King means what it says: where a proffered medical expert lives or practices per se has no relevance to whether he may give expert opinion testimony at trial….

No doubt there was a time when all states embraced what has been simplistically denominated "the locality rule". Formulated over a hundred years ago to protect the rural and small town practitioner presumed to be less adequately informed and equipped than his colleague in the city the rule gradually came to hold sway throughout the country.

Times have changed and perceptions of reality have changed. We now have a plethora of varying rules enforced among the fifty states in medical malpractice cases. Some states have opted for what has come to be known as the "national standard of care"…. Still other states have expanded the locality rule to require that a physician possess and exercise that degree of skill and care which a physician of ordinary prudence and skill, practicing in the same or a similar community, would have exercised in the same or similar circumstances….

Finally there are states which doggedly cling to the old locality rule.

We have carefully considered these and other cases together with the excellent briefs of counsel in this and several related cases now pending before the court. We hope that today's opinion will reflect that we have learned from the mistakes and experiences of others, as well as our own.

One mistake many have made has been the attempt to simplify that which is not so simple. Among such mistakes have been the pretention that the locality rule was a single rule, the use in a rule of the phrase "standard of care" accompanied at most by an amorphous formulation of that standard, and the adoption of a "national standard of care" without explaining what is meant thereby or taking account of the realities of the universe in which physician and patient interact. Courts seldom advance the cause of justice when they forge unrealistically simplistic rules to regulate subtly complex activities and enterprises. Such efforts create more problems than they solve.

In the analysis and formulations that follow, we seek clarity, which is not always synonymous with simplicity. We seek a sensitive accommodation of the legitimate interests, on the one hand, of those who have taken and take seriously the Oath of Hippocrates, and on the other hand, of those who seek and receive health care. By the same token, we hope that today's opinion will reflect that reason and fairness have subsumed passion and self-interest as the pillars upon which our rules of law ought to be based….

Each physician, by virtue of the positive, substantive law of this state, has a duty of care consistent with the level of expertise the physician holds himself out as possessing and consistent with the circumstances of the case. That duty is non-delegable. It is owing to each patient he or she undertakes to treat, and in that regard the patient has a correlative right. Injury caused by substantial violations of the physician's duty and the patient's right may subject the physician to tort liability.

Liability turns on a failure to provide the required level of care. It matters not whether this failure results from incompetence or negligence. Some of our cases have misleadingly stated that liability may result from either of two causes: "lack of skill or neglect to apply it if possessed". Dazet v. Bass… Liability results from the physician's failure to provide requisite care under the circumstances, and nothing turns on whether this failure resulted from incompetence or neglect….

Physicians are far more mobile than they once were. They frequently attend medical school in one state, do a residency in another, establish a practice in a third and after a period of time relocate to a fourth. All the while they have ready access to professional and scientific journals and seminars for continuing medical education from across the country. Common sense and experience inform us that the laws of medicine do not vary from state to state in anything like the manner our public law does….

Medicine is a science, though its practice be an art (as distinguished from a business). Regarding the basic matter of the learning, skill and competence a physician may bring to bear in the treatment of a given patient, state lines are largely irrelevant. That a patient's temperature is 105 degrees means the same in New York as in Mississippi. Bones break and heal in Washington the same as in Florida, in Minnesota the same as in Texas. An abnormal blood sugar count should be interpreted in California as in Illinois as in Tennessee. A patient's physiological response to an exploratory laparotomy and needs regarding post-operative care following such surgery do not vary from Ohio to Mississippi. A pulse rate of 140 per minute provides a danger signal in Pascagoula, Mississippi, the same as it does in Cleveland, Ohio. Bacteria, physiology and the life process itself know little of geography and nothing of political boundaries.

It is absurd to think that a physician examining a patient in his or her office would, by reference to the genuine health care needs of the patient, say: Because I practice in Mississippi (or the Deep South), I will make this diagnosis and prescribe this medication and course of treatment, but if I were in Iowa, I would do otherwise. We are confident (as the medical community of this state is no doubt confident) that Mississippi's physicians are capable of rendering and do in fact render a quality of care on a par with that in other parts of the country….

All of the above informs our understanding and articulation of the competence-based duty of care. Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States, to have a realistic understanding of the limitations on his or her knowledge or competence, and, in general, to exercise minimally adequate medical judgment. Beyond that, each physician has a duty to have a practical working knowledge of the facilities, equipment, resources (including personnel in health related fields and their general level of knowledge and competence), and options (including what specialized services or facilities may be available in larger communities, e.g., Memphis, Birmingham, Jackson, New Orleans, etc.) reasonably available to him or her as well as the practical limitations on same.

In the care and treatment of each patient, each physician has a non-delegable duty to render professional services consistent with that objectively ascertained minimally acceptable level of competence he may be expected to apply given the qualifications and level of expertise he holds himself out as possessing and given the circumstances of the particular case. The professional services contemplated within this duty concern the entire caring process, including but not limited to examination, history, testing, diagnosis, course of treatment, medication, surgery, follow-up, after-care and the like.

Emphasis is given the proposition that physicians incur civil liability only when the quality of care they render falls below objectively ascertained minimally acceptable levels. Use of such concepts as "average" are misleading and should be avoided, particularly in jury instructions, for such notions understood arithmetically suggest that the lower 50 percent of our physicians regularly engage in medical malpractice. We are confident that the percentage of physicians in this state who daily deliver to their patients a legally acceptable quality of care is quite high. The terminology we use, particularly in jury instructions, should reflect this reality.

Mention should be made in this context of the role of good medical judgment which, because medicine is not an exact science, must be brought to bear in diagnostic and treatment decisions daily. Some physicians are more reluctant to recommend radical surgery than are other equally competent physicians. There exist legitimate differences of opinion regarding medications to be employed in particular contexts. "Waiting periods" and their duration are the subject of bona fide medical controversy. What diagnostic tests should be performed is a matter of particularly heated debate in this era of ever-escalating health care costs. We must be vigilant that liability never be imposed upon a physician for the mere exercise of a bona fide medical judgment which turns out, with the benefit of 20-20 hindsight, (a) to have been mistaken, and (b) to be contrary to what a qualified medical expert witness in the exercise of his good medical judgment would have done. We repeat: a physician may incur civil liability only when the quality of care he renders (including his judgment calls) falls below minimally acceptable levels.

Different medical judgments are made by physicians whose offices are across the street from one another. Comparable differences in medical judgment or opinion exist among physicians geographically separated by much greater distances, and in this sense local custom does and must continue to play a role within our law, albeit a limited one.

We recognize that customs vary within given medical communities and from one medical community to another. Conformity with established medical custom practiced by minimally competent physicians in a given area, while evidence of performance of the duty of care, may never be conclusive of such compliance. The content of the duty of care must be objectively determined by reference to the availability of medical and practical knowledge which would be brought to bear in the treatment of like or similar patients under like or similar circumstances by minimally competent physicians in the same field, given the facilities, resources and options available. The content of the duty of care may be informed by local medical custom but never subsumed by it.

Conformity with a local medical custom may be one factor suggesting that a physician has fulfilled his obligation of care. On the other hand, failure to conform to an established medical custom regarding care will generally lead inescapably to the conclusion that the duty of care has been breached….

The duty of care, as it thus emerges from considerations of reason and fairness, when applied to the facts of the world of medical science and practice, takes two forms: (a) a duty to render a quality of care consonant with the level of medical and practical knowledge the physician may reasonably be expected to possess and the medical judgment he may be expected to exercise, and (b) a duty based upon the adept use of such medical facilities, services, equipment and options as are reasonably available. With respect to this second form of the duty, we regard that there remains a core of validity to the premises of the old locality rule.

For reasons well known to all, the facilities, equipment, health care personnel, and other such resources reasonably available to Mississippi's physicians vary from community to community. Major differences exist between the tools the physician has to work within rural Mississippi as contrasted with our more urban areas. Generally speaking, the most comprehensive availability of sophisticated medical facilities and equipment in this state may be found in Jackson.

Because of these differences in facilities, equipment, etc., what a physician may reasonably be expected to do in the treatment of a patient in rural Humphreys County or Greene County may vary from what a physician in Jackson may be able to do. A physician practicing in Noxubee County, for example, may hardly be faulted for failure to perform a CAT scan when the necessary facilities and equipment are not reasonably available. In contradistinction, objectively reasonable expectations regarding the physician's knowledge, skill, capacity for sound medical judgment and general competence are, consistent with his field of practice and the facts and circumstances in which the patient may be found, the same everywhere….

When all that has been said above is considered, we today do little more than smooth some of the rough edges of King v. Murphy. King recognizes that, as a part of our law, the formulation of the duty of care is to be informed by standards of medical competence prevailing statewide in Mississippi "and for a reasonable distance adjacent to state boundaries". This necessarily includes Memphis, Mobile and New Orleans at the very least. When the standards of medical practice prevailing in Jackson, Mississippi, are added, it may be seen that for all practical purposes King has embraced what many call the "national standard of care". Aside from highly specialized and in many instances still experimental services with respect to certain catastrophic diseases and medical problems, the quality of medical and health care in Memphis, Mobile, New Orleans and Jackson is consistent with that available anywhere in the land. The refinement of King we make on this score may be expected to eliminate legalistic debates over whether Birmingham, or Houston, or Nashville, or Atlanta is within "a reasonable distance adjacent to state boundaries". Past that it should have little practical effect.

On the other hand, we have added to King a pragmatic addendum by today's recognition that the physician's duty of care must take into consideration the quality and kind of facilities, services, equipment and other resources available. Nothing in King precluded consideration of this factor, which in reason and fairness ought to be a part of our law's approach to medical malpractice cases. Today we remove all doubt of the matter….

As we deal with general principles, gray areas necessarily exist. One involves the case where needed specialized facilities and equipment are not available locally but are reasonably accessible in major medical centers -- New Orleans, Jackson, Memphis. Here as elsewhere the local physician is held to minimally acceptable standards. In determining whether the physician's actions comport with his duty of care, consideration must always be given to the time factor -- is the physician confronted with what reasonably appears to be a medical emergency, or does it appear likely that the patient may be transferred to an appropriate medical center without substantial risk to the health or life of the patient? Consideration must also be given to the economic factors -- are the proposed transferee facilities sufficiently superior to justify the trouble and expense of transfer? Further discussion of these factors should await proper cases….

As a general rule, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education (or a combination thereof), coupled with independence and lack of bias, may testify thereto in the form of an opinion or otherwise. Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence.

Generally, where the expert lives or where he or she practices his or her profession has no relevance per se with respect to whether a person may be qualified and accepted by the court as an expert witness. There is no reason on principle why these factors should have per se relevance in medical malpractice cases….

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