Dr. Max PHARR v. Gerald ANDERSON & Patricia Anderson, Individually and on Behalf of all Others Similarly Situated, 436 So. 2d 1357

PART I ROY NOBLE LEE, Justice, for the Court: Gerald Anderson and Patricia Anderson filed suit against Dr. Max Pharr, Dr. Mary Wheatley, Nurse Patricia Nutter and St. Dominies Hospital in the Circuit Court of the Second Judicial District, Hinds County, Mississippi, seeking damages for malpractice which resulted in the death of their mother, Mrs. Joyce Anderson. The case was settled as to Dr. Mary Wheatley, Nurse Patricia Nutter and St. Dominies Hospital for the sum of $100,000, and it proceeded to trial against Dr. Max Pharr.

The jury returned a verdict of $65,000 in favor of the appellees, judgment was entered in that amount, and Dr. Pharr has appealed here assigning six errors in the trial below. Mrs. Joyce Anderson, age 41, had a long history of being a diabetic. Dr. Max Pharr had been treating her since 1976, and Dr. Mary Wheatley, a psychiatrist, had been treating her for approximately the same period. Mrs. Anderson had been admitted and discharged from hospitals by each doctor over a period of years. Both doctors were aware of the other’s treatment of her. On January 15, 1979, Mrs. Anderson was admitted to St.

Dominies Hospital at approximately 11:50 p.m. complaining of vomiting, diarrhea, and inability to eat. Dr. Joe G. Stribling, who was assigned to the emergency room, ordered various tests, determined that her blood sugar level was 431 mg., and she was admitted to the Intensive Care Unit. The next morning Dr. Pharr’s partner assumed the care of Mrs. Anderson, and after four days, she was released on January 20, 1979, with a final diagnosis of gastroenteritis. Mrs. Anderson called Dr. Pharr on January 23, 1979, complaining about her condition, and he advised her to go to the emergency room at St. Dominies Hospital.

He called there, made arrangements for her to be admitted to the emergency room, and ordered two series of drips, each one requiring six hours to complete, making a total of twelve hours. The time was around 2 p.m. About 3:30 p.m., Mrs. Anderson became distressed. She was crying, screaming and uncontrollable, and Dr. Pharr, upon being called from the emergency room, advised the nurse to contact Dr. Mary Wheatley, the patient’s psychiatrist, about her condition. Dr. Wheatley went to the emergency room, examined Mrs. Anderson, prescribed sedatives for her, and was successful in calming her.

She was in the emergency room about 1½ hours. Mrs. Anderson wanted to go home, and Dr. Wheatley stated that when she became quiet she could be discharged, and so told the nurse in charge, Patricia Nutter. Dr. Wheatley was listed on the hospital chart as the patient’s physician, along with Dr. Pharr. There was testimony, including that of Emergency Room Nurse Patricia Nutter, that Dr. Wheatley discharged Mrs. Anderson, but Dr. Wheat-ley denied she had done so. She did testify that she told the nurse that insofar as she, Dr. Wheatley, was concerned, the patient could go home.

She left the emergency room for home at approximately six o’clock. About twenty to thirty minutes after the patient’s discharge, Dr. Pharr went to the emergency room and hospital for the purpose of checking his patients. He inquired as to Mrs. Anderson’s whereabouts, and the nurse on duty advised him that she had been discharged, which was fine with Dr. Pharr. He did not examine her records to determine what treatment had been administered and what her condition was, according to the chart. Mrs. Anderson’s condition grew worse at home, but no physician was called.

About 2 a.m., January 24, her condition had worsened to the point that family members took her to the emergency room of St. Dominies Hospital, but, on the way, she stopped breathing and was pronounced dead on arrival at the hospital. Except that he failed to review her chart of January 23 and failed to have her returned to the hospital for additional treatment, appellees do not contend that Dr. Pharr improperly treated Mrs. Anderson, or did anything wrong in his care or treatment of her. Further, that in so doing, or not doing, Dr.

Pharr did not use or exercise the standard of care required in the Jackson area of a family physician. Dr. Pharr contends that the standard of care does not require an attending physician, where another physician has entered the case and has discharged the patient, to do anything further insofar as reviewing records or attempting to return the patient to the hospital. 1. Did the lower court err in holding that the appellees’ witness, Dr. John Cockrell, is qualified as an expert in the field of family medicine? Dr.

John Cockrell was the only expert witness who testified for appellees on the standard of care required of a physician under the facts of this case and on causal connection between the discharge (treatment) of Mrs. Anderson and her cause of death. His educational and employment background follows: M.D. Degree — 1937 Columbia College of Physicians & Surgeons, New York Internship & Residency — 1941 Presbyterian Hospital, New York Resident Surgeon — 1940-42—Bassett Hospital, Cooperstown, New York Lt. Commander, Public Health Service— 1943-46 — U.S.

Marine Hospital, Buffalo, New York and Galveston, Texas Chief of Surgery — 1946-55—Veterans’ Administration Hospital, Jackson, Mississippi Chief of Staff — 1955-68—Veterans’ Administration Hospital, Jackson, Mississippi Retired from Federal Service — 1968 Resident and Chief Pathologist — 1968-71 —University Hospital, Jackson, Mississippi Pathology Instructor — 1971-77—Univer-sity Hospital, Jackson, Mississippi Retired — 1977 Currently Assistant Clinical Professor of Surgery and Pathology, Jackson, Mississippi Board Certified in Surgery and Anatomical Pathology Seventeen Publications Listed In addition, Dr.

Cockrell testified that he knew the standard of care as it applies to general practitioners because he had been associated with internists and general practitioners over the years, was Chief of Staff at Veterans’ Administration Hospital for thirteen years and supervised the Admissions Office, where his duties consisted of trying to solve any problems which arose.

He stated that he had not been involved in anything resembling or applicable to the practice of family medicine, but that family practice of medicine is, not a great deal different than any other part of the medical practice and that anyone who knows the standard of care with reference to surgery or internal medicine would know the standard of care in general with reference to family practice. In Early-Gary, Inc. v.

Walters, 294 So.2d 181, 185 (Miss.1974), the Court discussed the test to be applied in qualifying a witness as an expert: In order for one to qualify as an expert in the field, one must be shown to have acquired a special knowledge of the subject matter about which he is called to testify. This knowledge may be obtained by a study of recognized authorities or through practical experience.

The question of whether the proffered witness has obtained the required degree of specialized knowledge within a particular field is a matter within the sound discretion of the trial court, and unless there is an abuse of that discretion, his determination will not be disturbed on appeal. Illinois Central R.R. v. Benoit Gin Co., 248 So.2d 426 (Miss.1971); Gulf, Mobile & Ohio R.R. v. Hollingshead, 236 So.2d 393 (Miss.1970); and Capital Transport Co. v. Segrest, 254 Miss. 168, 181 So.2d 111 (1965). In the recent case of King v.

Murphy, 424 So.2d 547 (Miss.1982), we held that an expert witness whose knowledge of, and familiarity with, the state-wide standard of care shall not have his testimony excluded. We are of the opinion that the lower court did not abuse its discretion in holding that Dr. John Cockrell was qualified as an expert witness in the field of medicine applicable to this case. 2. Did the lower court err in allowing in evidence speculative testimony from appel-lees’ witness Dr. Paul Oliver about the deceased’s life work expectancy and earning capacity? Dr.

Paul Oliver is an Associate Professor of Economics at the University of Mississippi, which position he has occupied for the past fifteen years, teaching on both graduate and undergraduate levels. He holds the degree of Ph.D. in Economics from the University of Arkansas. Dr. Oliver testified as to the life expectancy of Mrs. Anderson, and indicated that, for the remainder of her work life expectancy, working at the rate of $3.50 per hour, she could be expected to earn a gross grand total of $175,448.00. Although the mortality tables refer to an average person in normal health, Mrs.

Anderson was a diabetic and in ill health. However, the appellant had the right to show her physical condition and that she was not a healthy person, and the record so indicates. Mortality tables and such testimony are admitted only for the purpose of aiding and furnishing guidelines to the jury. A more serious question arises with reference to testimony of Dr. Oliver referring to losses sustained by the daughter, Patricia Anderson, who was afflicted and needed constant care from other persons. Dr. Oliver gave testimony as to the loss of Mrs.

Anderson as a caretaker for Patricia by computing $3.35 an hour for twelve hours per day, 365 days a year for forty years, which would amount to $560,000 as a gross amount over the life expectancy of Mrs. Anderson. However, Dr. Oliver did testify that he was not saying those figures would apply in this case but that he was simply giving a very broad guideline based on the hypothetical questions insofar as his reasoning and experience told him it would take to provide that type caretaker’s services in Mississippi; and that there would be a wide variation in the figures. In our opinion that testimony of Dr.

Oliver was highly speculative and improper. However, the verdict of the jury was only $65,000, which indicates that the jury was not influenced by it and that such testimony was harmless. 3. Did the lower court err in granting Jury Instruction No. 27? Instruction No. 27 in its final form, after being amended, follows: The Court instructs the Jury that if you believe from the evidence in this case that Dr. Max Pharr ordered two intravenous drips for Mrs. Joyce Anderson that were to have lasted for over six hours and that further, Dr.

Max Pharr prescribed medications for the difficulties being suffered by Joyce Anderson, and further, that upon being advised of the emotional condition of Mrs. Joyce Anderson, Dr. Max Pharr called in her psychiatrist, Dr. Mary B. Wheatley as a psychiatric consultant, and that Dr. Wheatley did in fact, treat Joyce Anderson for her emotional condition, and that after her treatment the patient was discharged from the emergency room of St. Dominic Hospital prior to the arrival of Dr. Pharr and prior to the orders of Dr. Pharr being completed, and if you further find that Dr.

Max Pharr learned that Joyce Anderson had been discharged from the emergency room when he arrived to treat her, and if you further find that Dr. Max Pharr did not review the hospital records, and if you further find that he made no follow up contact to Joyce Anderson, and if you further find that in so acting, Dr. Max Pharr failed to exercise the care, skill and diligence that physicians in good standing in Jackson, Mississippi in the general practice have exercised in like cases, and that Dr.

Max Pharr’s failure to exercise such care was the sole proximate cause or a proximate contributing cause of Joyce Anderson’s death, then your verdict shall be for the plaintiffs. The appellant objected to the instruction on the grounds that (1) it was against the preponderance of the evidence and confused and misstated what the standard of care would be with reference to the inaction of Dr. Pharr, (2) the instruction gives an undue emphasis to certain elements of evidence which had been offered, and (3) that the reference to the violation of the standard of care is a misstatement of law.

The instruction followed the uncontra-dicted evidence to the point where it states, “... if you further find that in so acting, Dr. Max Pharr failed to exercise the care, skill and diligence that physicians in good standing .... ” While some members of the Court think that the general negligence rule applies here instead of the standard of care, skill and diligence, under either theory the issue was properly submitted to the jury by the instruction and it does not constitute reversible error. 4.-5. The appellant next contends (4) that the lower court erred in permitting the appel-lees to call Dr.

Pharr as an adverse witness in order to establish the standard of care, and (5) the lower court erred in failing to sustain appellant’s motion for a remittitur. We have carefully examined those assignments of error and find that there is no merit in them. PATTERSON, C.J., BROOM, P.J., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur. WALKER, P.J., dissents.

PART II HAWKINS, Justice, for the Court: Was a jury issue made on the question of negligence of Dr. Pharr? It is the contention of counsel for Dr. Pharr that upon being informed Dr. Wheat-ley had authorized the discharge of his patient, he had no further duty or responsibility in reference to this hospital admission. To answer this contention it is necessary to examine the relationship between Mrs. Anderson and Dr. Wheatley and Dr. Pharr, as well as the professional relationship between these two doctors. Dr. Pharr’s candor is certainly commendable. He was his own worst witness on this question. Dr.

Wheatley’s medical practice was restricted to psychiatry, and Dr. Pharr knew this. He knew Dr. Wheatley had never undertaken the treatment of Mrs. Anderson’s diabetes, and that Dr. Wheatley never practiced general medicine. Dr. Pharr, of course, knew Mrs. Anderson was a chronically and seriously ill diabetic. When she was admitted at 2:00 p.m., he ordered intravenous drips to last two consecutive six-hour periods. When the emergency room telephoned him Mrs. Anderson was having emotional problems, he notified the attendant to call Dr. Wheatley. He knew, therefore, that Dr.

Wheatley’s treatment that afternoon would have been for her emotional problems. When he arrived at the emergency room at 6:30 p.m., Dr. Pharr was informed Dr. Wheatley had discharged Mrs. Anderson. He, therefore, knew she had been discharged before the first drip had been completed. He did not look at her chart; he made no further inquiry. He admitted that had he looked at her chart, he would have confirmed what he then should have known: that this patient had gone home under the direction of the hospital before the medication which he had prescribed had been completed.

Finally, he admitted that had he looked at Mrs. Anderson’s medical chart, he would have telephoned her to return to the emergency room. We are not presented here with a case of another treating doctor for diabetes discharging Mrs. Anderson. To the contrary, Dr. Wheatley had nothing whatever to do with the treatment of Mrs. Anderson’s physical illness, and Dr. Pharr was aware of this. We are compelled to agree with the circuit judge, therefore, that a jury issue was made on whether Dr. Pharr exercised a reasonable standard of care by omitting to take any. further action upon being told Dr.

Wheatley, a psychiatrist, had released his patient. AFFIRMED. PATTERSON, C.J., and BOWLING, PRATHER and ROBERTSON, JJ., concur. BROOM and WALKER, P.JJ., and ROY NOBLE LEE, J., dissent. DAN M. LEE, J., not participating.