Vicky Debrow v. Stephen Harless ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00973-COA
VICKY DEBROW, AS ADMINISTRATRIX OF APPELLANT
THE ESTATE OF VOLLIE DEBROW,
DECEASED, INDIVIDUALLY, AND ON
BEHALF OF THE WRONGFUL DEATH HEIRS
AT LAW OF VOLLIE DEBROW, DECEASED
v.
STEPHEN HARLESS, M.D., AND
HATTIESBURG CLINIC, P.A. APPELLEES
DATE OF JUDGMENT: 06/20/2014
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: WILLIAM W. FULGHAM
ATTORNEY FOR APPELLEES: J. ROBERT RAMSAY
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION: GRANTED DIRECTED VERDICT IN
FAVOR OF APPELLEES
DISPOSITION: AFFIRMED – 12/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND JAMES, JJ.
IRVING, P.J., FOR THE COURT:
¶1. In this medical-malpractice case, we must determine whether the trial court erred in
granting a directed verdict in favor of the defendants/appellees, Dr. Steven Harless and
Hattiesburg Clinic P.A. We must also determine whether the trial court properly denied the
plaintiff/appellant’s motion to bifurcate the trial.
PROCEDURAL HISTORY
¶2. On September 14, 2012, Vicky Debrow filed a medical-malpractice claim in the
Lamar County Circuit Court against Dr. Stephen Harless and Hattiesburg Clinic P.A.
(collectively Dr. Harless). Debrow alleged Dr. Harless was negligent in failing to timely
diagnose her husband Vollie Debrow’s rectal cancer.
¶3. Trial began on June 16, 2014. After Debrow rested her case-in-chief, Dr. Harless
moved for a directed verdict. The trial court granted Dr. Harless’s motion, finding that
Debrow had failed to demonstrate Dr. Harless’s actions deviated from the standard of care.
Debrow now appeals, asserting that the trial court erred by granting the directed verdict and
by denying her motion to bifurcate.
FACTS
¶4. Vollie first visited Dr. Harless in 1994, seeking an examination to determine the extent
of his disability from a previous leg injury. This injury caused Vollie daily pain, and many
of his visits with Dr. Harless were primarily for pain medication. Debrow testified she
occasionally accompanied Vollie on his visits, and at no time did Dr. Harless discuss the
need for Vollie to undergo a colonoscopy even though he was over fifty years old. However,
Debrow did admit to an addiction to prescription drugs during this period, resulting in no
specific recollection of any visits Vollie had with Dr. Harless prior to March 2009.
¶5. Dr. Harless testified that he had spoken to Vollie on several occasions about the need
for a colonoscopy but Vollie refused. Due to Vollie’s refusal, Dr. Harless never referred
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Vollie to a specialist to undergo a colonoscopy.
¶6. Vollie’s cancer was discovered in June 2009, and he died on July 17, 2010.
¶7. Debrow’s expert, Dr. William Steinmann, testified that Dr. Harless’s failure to advise
Vollie about the need for colorectal screening was the proximate cause of Vollie’s death.
DISCUSSION
1. Directed Verdict
¶8. In her first issue on appeal, Debrow argues the trial court erred in granting Dr.
Harless’s motion for a directed verdict. A motion for a directed verdict challenges the legal
sufficiency of the evidence. Barfield v. State, 22 So. 3d 1175, 1185 (¶34) (Miss. 2009). The
applicable standard of review for a directed verdict is de novo. Gray v. BellSouth Telecomm.
Inc., 11 So. 3d 1269, 1271 (¶9) (Miss. Ct. App. 2009). “When deciding whether the granting
of a motion for a directed verdict was proper by the lower court, this Court considers the
evidence in the light most favorable to the non-moving party and gives that party the benefit
of all favorable inferences that may be reasonably drawn from the evidence presented at
trial.” Abrams v. Boggs, 914 So. 2d 738, 740 (¶7) (Miss. Ct. App. 2005) (citing Munford Inc.
v. Fleming, 597 So. 2d 1282, 1284 (Miss. 1992)). “If the favorable inferences have been
reasonably drawn in favor of the non-moving party so as to create a question of fact from
which reasonable minds could differ, then the motion for a directed verdict should not be
granted and the matter should be given to the jury.” Id.
¶9. To establish a prima facie case of medical malpractice, the plaintiff must show that
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(1) the defendant had a duty to conform to a specific standard of conduct for
the protection of others against an unreasonable risk of injury; (2) the
defendant failed to conform to that required standard; (3) the defendant’s
breach of duty was a proximate cause of the plaintiff’s injury, and; (4) the
plaintiff was injured as a result.
Delta Reg’l Med. Ctr. v. Venton, 964 So. 2d 500, 504 (¶8) (Miss. 2007) (citation omitted).
The “general rule is that the negligence of a physician may be established only by expert
medical testimony.” Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346, 1355 (Miss. 1990).
“The success of a plaintiff in establishing a case of medical malpractice rests heavily on the
shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective
standard of care.” Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (¶10) (Miss. 2009). The
expert must “identify and articulate the requisite standard that was not complied with, . . .
establish that the failure was the proximate cause, or proximate contributing cause, of the
alleged injuries.” McDonald v. Mem’l Hosp., 8 So. 3d 175, 180 (¶12) (Miss. 2009) (citing
Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992)).
¶10. Debrow contends there was a fact question regarding whether Dr. Harless did advise
Vollie on the need for a colonoscopy. However, Debrow admits that she did not attend all
of Vollie’s appointments with Dr. Harless. Dr. Steinmann testified that Dr. Harless breached
the standard of care by failing to recommend the colonoscopy and by failing to document that
Vollie had refused the recommendation. When asked on cross-examination whether Dr.
Harless breached the standard of care if he had discussed the need for a colonoscopy with
Vollie, Dr. Steinmann responded, “I don’t believe [Dr. Harless] did that.” Under further
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cross-examination, Dr. Steinmann admitted that if Dr. Harless had informed Vollie of the
need to undergo a colonoscopy, then Dr. Harless complied with the standard of care. Dr.
Steinmann was adamant that Dr. Harless should have documented this refusal by Vollie;
however, Dr. Steinmann did not state the failure to document was a violation of the standard
of care. Dr. Steinmann explained this in terms of what he would do as a physician, which
was his subjective belief. Caselaw is clear that the standard articulated by an expert must be
objective, not subjective. Northrop, 9 So. 3d at 384 (¶9).
¶11. There was no evidence to contradict Dr. Harless’s statements that he did advise Vollie
on several occasions to undergo a colonoscopy, but Vollie refused.
¶12. Debrow’s expert failed to establish an objective standard of care to make a prima facie
case of medical malpractice; thus, we affirm the directed verdict in favor of Dr. Harless.
2. Motion to Bifurcate
¶13. In her other issue on appeal, Debrow argues the trial court erred in denying her motion
to bifurcate the issues of liability and damages to avoid prejudice. Debrow was concerned
the jury would hear about her drug addiction as well as physical violence towards Vollie.
Debrow also believed bifurcation “would be in the interest of judicial economy” and would
“expedite the trial of this matter.” The trial court denied the motion, finding that bifurcation
“may or may not compromise [Dr. Harless’s] ability to put on [his] case the way [he] sees
fit.”
¶14. We review a trial court’s decision on a motion to bifurcate under our familiar abuse-
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of-discretion standard. Burnham v. Stevens, 734 So. 2d 256, 265 (¶34) (Miss. Ct. App.
1999). Since we have affirmed the trial court’s decision to grant Dr. Harless’s motion for
directed verdict, we do not need to address this issue. Regardless, we can find no abuse of
discretion by the trial court in denying Debrow’s motion to bifurcate.
¶15. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL, FAIR, JAMES AND
WILSON, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
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