Ruby Lorene Bickham v. Fred Y. Grant ( 1997 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CT-01639-SCT
RUBY LORENE BICKHAM, AS THE
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
v.
DR. FRED Y. GRANT, DR. JOHN S. HARRIS, RUSH
FOUNDATION HOSPITAL AND RUSH MEDICAL
GROUP, P. A.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 9/25/1997
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 B. CARTER
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: COURT OF APPEALS' JUDGMENT AFFIRMED
AND CASE REMANDED FOR NEW TRIAL AS
TO THE CLAIMS ASSERTED AGAINST
DOCTORS GRANT AND HARRIS AND RUSH
MEDICAL GROUP, P.A. - 09/11/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
McRAE, PRESIDING JUSTICE, FOR THE COURT:
¶1. The heirs and estate of Tamara Bickham (collectively "Bickham"), deceased, filed this medical
negligence case in the Circuit Court of Lauderdale County, Mississippi against Dr. Fred Y. Grant ("Dr.
Grant"), Dr. John S. Harris ("Dr. Harris"), Rush Medical Group, P.A. ("Rush Group"), and the Rush
Foundation Hospital ("Rush Hospital") (collectively "Defendants"). The jury found for the Defendants,
judgment was entered in accordance with that verdict, and the trial court denied Bickham's motion for a
JNOV or a new trial. The Court of Appeals initially affirmed the trial court's judgment. However, on
motion of rehearing, the Court of Appeals conducted an extensive review, withdrew its prior opinion, and
reversed and remanded for retrial limited to the Bickham's claims against Dr. Grant, Dr. Harris, and Rush
Group. The Court of Appeals found that the trial court granted erroneous jury instructions regarding the
standard of care. Bickham v. Grant, 2001 WL 570018 (Miss. Ct. App. 2001). On writ of certiorari,
we affirm the Court of Appeals as to its reversal and remand for a new trial against Dr. Grant, Dr. Harris,
and Rush Group based on the erroneous jury instructions and its affirmance of the judgment in favor of
Rush Hospital.
FACTS
¶2. A week after giving birth to her son, Tamara Bickham began having difficulties. She
sought treatment in the emergency room of the Rush Hospital on three separate occasions within a week
period. Dr. Grant was the obstetrician-gynecologist on call during Bickham's last visit to the hospital on
October 22, 1991. Bickham was admitted to the hospital and was diagnosed with endometritis, an
inflamation of the inner layer of the uterine wall.
¶3. After two days of treatment, Dr. Grant discovered a blood clot in Bickham's leg and prescribed
Heparin. Dr. Grant monitored Bickham's condition through the use of a partial thromboplastin time test
("PTT") which compares the time it takes the patient's blood to clot with the clotting time for a control
patient.
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¶4. During treatment, Bickham complained of difficulty breathing, leg pain, and chest pain. Her PTT
scores were an average of 53, with an average score for the control group at 32. Twelve days after
treatment began, Bickham's conditioned worsened. Dr. Harris was on call during this time. He
immediately called Dr. Grant back to the hospital.
¶5. On November 3, a nurse noticed Bickham had labored breathing. Dr. Grant then ordered a lung
scan which revealed a large pulmonary embolus blocking the left lung and the lower lobe of the right lung.
Dr. Grant immediately transferred Bickham to the University Medical Center ("UMC"). At UMC, Bickham
underwent surgery to insert a "filter" or "basket" to prevent further blood clots. The treatment proved
unsuccessful, and Bickham died on November 10, 1991.
¶6. Bickham's husband, individually and as next of friend of their newborn son, together with the
administratrix of her estate filed this medical malpractice action against Dr. Grant, Dr. Harris, the Rush
Hospital, and Rush Group. After an eight-day trial, the trial judge allowed certain jury instructions to be
read to the jury. Instruction C-20, as given to the jury, provided that:
You are instructed that you have heard from the expert witnesses who have testified in the
case differing views as to what would be the proper procedures to be followed by Doctors
Grant and Harris in their treatment of Tamara Bickham. If you find from these opinions
that two or more alternative courses of action would be recognized by the profession as
being proper and within the standard of are and that Doctors Grant and Harris, in the
exercise of their best judgment, elected one of the proper alternatives you should
find for Doctors Grant and Harris.
(emphasis added). The jury returned a verdict in favor of the Defendants.
¶7. Bickham's subsequent appeal was assigned to the Court of Appeals. Bickham argued that the trial
court erred in denying the JNOV motion and in giving Instruction C-20 as it is a subjective instruction and
is in conflict with this Court's holding in Day v. Morrison, 657 So. 2d 808 (Miss. 1995). Originally, the
Court of Appeals affirmed the trial court's ruling on Instruction C-20. However, on rehearing, the Court
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of Appeals extensively reviewed the record, withdrew its prior opinion, and reversed and remanded for
retrial limited to the Bickham's claims against Dr. Grant, Dr. Harris, and Rush Group determining that the
trial court had granted an erroneous jury instruction on the standard of care. A petition for writ of certiorari
was filed by the Defendants wherein they claim that the the Court of Appeals erroneously found Instruction
C-20 to be reversible error.1
DISCUSSION
¶8. Jury instructions are to be read as a whole. Southland Enterprises, Inc. v. Newton County,
838 So. 2d 286, 289 (Miss. 2003). The trial judge has considerable discretion in instructing the jury. Id.
(citing Splain v. Hines, 609 So. 2d 1234, 1239 (Miss. 1992)). A defendant is generally entitled to an
instruction which presents his side of the case; however, such instruction must correctly state the law.
Humphrey v. State, 759 So. 2d 368, 380 (Miss. 2000) (citing Heidel v. State, 587 So. 2d 835, 842
(Miss. 1991)). Furthermore, "[i]t would be error to grant an instruction which is likely to mislead or confuse
the jury as to the principles of law applicable to the facts in evidence." Southland Enterprises, 838
So.2d at 289 (citing McCary v. Caperton, 601 So. 2d 866, 869 (Miss. 1992)).
I. WHETHER THE COURT OF APPEALS ERRONEOUSLY FOUND
INSTRUCTION C-20 TO BE REVERSIBLE ERROR.
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The Defendants also assert that the Court of Appeals' majority opinion misapprehends the
facts concerning Bickham's alleged blood clotting disorder which was allegedly diagnosed when she
was seven years of age. Since these statements of fact have no bearing on our decision to affirm the
Court of Appeals decision, we need not consider the merits of this issue. Suffice it to say, the Court of
Appeals did in fact make three misstatements of fact, those being (1) Bickham's diagnosis with a blood
clotting disorder at the age of seven; (2) information regarding Bickham's blood clotting disorder was a
part of her medical records; and (3) the information regarding Bickham's blood clotting disorder was
relied upon by the physicians in providing treatment.
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¶9. The Court of Appeals, on rehearing, found Instruction C-20 to be subjective and in conflict with
this Court's holding in Morrison, 657 So. 2d 808. The Court of Appeals opined that just as this Court
found the jury instruction involved in Morrison to be subjective and misleading, so too was Instruction
C-20. The Defendants argue that the Court of Appeals erred in its reasoning. Specifically, they argue that
Instruction C-20 merely instructed the jury on alternative treatments as evidenced by conflicting expert
testimony and that the facts in Morrison are wholly distinguishable from the present circumstances.
Bickham, of course, agrees with the Court of Appeals' rehearing holding.
¶10. In Morrison, the medical malpractice claim instituted by the plaintiff alleged negligence resulting
from a penile prosthesis surgery and the defendant doctor's failure to diagnosis and treat the recurring
problems which exhibited themselves as a result of the botched surgery. Id. at 809-11. The facts in
Morrison are not distinguishable from the present facts as asserted by the Defendants. The holding in
Morrison did not, as asserted by the Defendants, just center around the fact that there was only one
method of treatment for the problems exhibited by the plaintiff, the penile prosthesis operation. The
negligence claim in Morrison not only dealt with the treatment, meaning the surgery, but also with the care
given the plaintiff after the surgery which was claimed to be deficient and amounting to a failure to diagnosis
and treat. Id. at 811. Looking at the instructions in Morrison which were at issue, makes it clear that
the doctor's treatment of the plaintiff not only encompassed the surgery itself, but also the seven months of
followup treatment the plaintiff received. Id. Ultimately, we held that the trial court erred in allowing a jury
instruction in a medical malpractice action which held the physician not liable for a "mere error in judgment."
Id. We rejected "bona fide" or "good faith" judgment jury instructions in medical malpractice actions. Id.
Our reasoning was clear. Such instructions create confusion with the jury and subject physicians to a
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subjective and not an objective standard of care. We also found that such subjective standards could
sway a jury to "conclude, incorrectly, that a physician is not liable for malpractice even if he or she is
negligent in administering the treatment selected." Id. at 812 (quoting Riggins v. Mauriello, 603 A.2d
827, 831 (Del. 1992)). "The central issue in the ordinary negligence case is whether the defendant has
deviated from the required standard of care, not his mental state at the time of the conduct which constitutes
the deviation." Id. at 813 (quoting Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 299, 465 A.2d
294, 303 (1983)). Additionally, we stated that:
If this Court were to settle for the "mere error of judgment" language as the controlling law
in this state for medical malpractice cases, then most injured individuals could forget
recovery. A physician or a professional can always claim he was exercising
his own judgment even though he was mistaken or negligent.
Id. at 814 (emphasis added).
¶11. Looking at the above language, there is no difference between the statement in Morrison
regarding "exercising his own judgment" and "in their best judgment." It is clear that our decision in
Morrison addressed not only the confusion of physician error and actionable liability, but also the
inappropriateness of subjective standard jury instructions in medical malpractice actions.
¶12. Today, we are faced with a similar instruction, Instruction C-20. Instruction C-20 provides that:
You are instructed that you have heard from the expert witnesses who have testified in the
case differing views as to what would be the proper procedures to be followed by Doctors
Grant and Harris in their treatment of Tamara Bickham. If you find from these opinions
that two or more alternative courses of action would be recognized by the profession as
being proper and within the standard of care and that Doctors Grant and Harris, in the
exercise of their best judgment, elected one of the proper alternatives you should
find for Doctors Grant and Harris.
(emphasis added). This instruction provides a subjective standard of care by the doctor regarding his own
misdiagnosis. This is clearly what our holding in Morrison forbids. To charge juries with the responsibility
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of assessing the mental state of treating physicians and to make a determination of liability is preposterous.
Not to mention the negative effect such instructions will have on those injured. There is no conceivable way
a jury weighing alternative treatments would possibly find physicians negligent for exercising their best
judgment.
¶13. Instruction C-20's failure to include the word "error" does not lead to the conclusion that our
holding inMorrison is not applicable. Instruction C-20 provides for an "in the exercise of their best
judgment" standard of care. The word "judgment" is not in and of itself subjective. The word "judgment"
used in connection with other words can certainly constitute a subjective jury instruction, as with the phrase
"in the exercise of their best judgment." These words together, not alone, are what amounts to
a subjective jury instruction.
¶14. Furthermore, a subjective jury instruction in a medical malpractice case is a misstatement of law,
and as stated earlier a defendant is generally entitled to an instruction that presents his side of the case, if
such instruction is a correct statement of the law. Humphrey, 759 So.2d at 380 (citing Heidel, 587
So.2d at 842). The appropriate standard of care in a medical malpractice case is objective and centers
around exercising the degree of care, diligence, and skill ordinarily possessed and exercised by a minimally
competent and reasonably diligent, skillful, careful, and prudent physician in that field of practice. What
the physician may have been thinking in "his best judgment" is irrelevant. What the physician did in treating
the patient is the key factor. Patients expect their physician to always be exercising "their best judgment."
However, it is clear that there are times where the physician's best judgment regarding treatment falls below
the applicable standard of care. This is why instructions such as C-20 are misstatements of law as they
hold the physician to his own personal standard of care and not the standard of care applicable to
physicians in his area of practice.
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CONCLUSION
¶15. Jury Instruction C-20 is an erroneous instruction as it is a misstatement of law regarding the
applicable standard of care and is in conflict with our holding in Morrison. We affirm the Court of
Appeals as to its reversal and remand for a new trial against Dr. Grant, Dr. Harris, and Rush Group based
on the erroneous jury instructions and its affirmance of the judgment in favor of Rush Hospital.
¶16. COURT OF APPEALS' JUDGMENT AFFIRMED AND CASE REMANDED FOR
NEW TRIAL AS TO THE CLAIMS ASSERTED AGAINST DOCTORS GRANT AND
HARRIS AND RUSH MEDICAL GROUP, P.A.
EASLEYAND GRAVES, JJ., CONCUR. PITTMAN, C.J., SPECIALLY CONCURS
WITH SEPARATE WRITTEN OPINION. COBB, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J.,
WALLER AND CARLSON, JJ. DIAZ, J., NOT PARTICIPATING .
PITTMAN, CHIEF JUSTICE, SPECIALLY CONCURRING:
¶17. I write today to voice my approval of the analysis of the deficiencies of instruction C-20 found in
the plurality opinion. The instruction is indeed defective because it asked questions of the jury that it was
not required to answer: e.g. whether an alternative procedure not performed by the doctors here would
have provided care which fell below the standard of care we impose on physicians. The jury needed only
to consider the much simpler question whether the procedure actually performed here fell below the
standard of care. The Court of Appeals correctly noted the confusing nature of C-20 when it stated:
we can discern no logical reason why it likewise would not be improper
to give a "best judgment instruction" in instructing the jury regarding a
physician's selection of an allegedly alternative course of action within the
standard of care, for in both cases the physician is to be
exonerated only if he followed the standard of care, his good
judgment or bad judgment notwithstanding.
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Bickham v. Grant, 2001 WL 570018, at *2 (Miss. Ct. App. 2001) (emphasis added).
¶18. Therefore, I agree with the discussion of C-20 found in today's plurality opinion, but join the
remainder of the opinion in result only.
COBB, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶19. I agree with the affirmance of the judgment in favor of Rush Hospital, but I strongly disagree with
the affirmance of the Court of Appeals’ judgment’s reversal based on the trial court’s granting of jury
instruction C-20 on the standard of care. Although the jury instruction was inartfully drawn and is not a
model instruction to be followed, it is not an erroneous statement of the law and does not conflict with this
Court’s holding in Day v. Morrison, 657 So. 2d 808 (Miss. 1995). The trial court’s granting of C-20
was proper, and thus I believe the Lauderdale County Circuit Court jury verdict should be affirmed.
¶20. In many matters which come before this Court, the choice of specific words and their relation to
other surrounding words, whether in jury instructions or any other document, can be outcome
determinative. The case before us is a good example. The plurality looks to the words “in the exercise of
their best judgment” found in C-20, and finds reversible error. With all due respect, I believe that the
plurality simply “isn’t seeing the forest for the trees.” Thus I write to distinguish the language found in C-20
from the objectionable language found by this Court in Day v. Morrison, 657 So. 2d 808 (Miss. 1995).
¶21. C-20 states in its entirety:
You are instructed that you have heard from the expert witnesses who have testified in the
case differing views as to what would be the proper procedures to be followed by Doctors
Grant and Harris in their treatment of Tamara Bickham. If you find from these
opinions that two or more alternative courses of action would be
recognized by the profession as being proper and within the standard of
care and that Doctors Grant and Harris, in the exercise of their best judgment
elected one of the proper alternatives, you should find for Doctors Grant and
Harris.
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(emphasis added).
¶22. The plurality looks to Morrison, a relatively recent precedent in which this Court held that it was
improper to instruct a jury that "a competent physician is not liable per se for a mere error in judgment" or
to refer to "good faith error in judgment or honest error in judgment." Id. at 815. While acknowledging
that Morrison was “by no means controlling because the issues are different,” the Court of Appeals
unfortunately failed to note that not only were the basic facts entirely different, but also much of what was
said therein was dicta. In Morrison, unlike the present case, “there was only one method of correcting
the [medical] problem, therefore leaving no roomfor choice for the physician, and ultimately making
a ‘mere error of judgment’ instruction not only unnecessary, but absolutely
inapplicable.” Id. at 814 (emphasis added). The remainder of the Morrison opinion, however, cited
extensive authority wherein the “mere error of judgment” language in an instruction had been criticized, and
although dicta, it is instructive.
¶23. A careful review of Morrison reveals that it focused on the confusion that may arise from
informing jurors that even if the doctor committed "error", there still may not be liability. Suggesting that
only bad faith negligence -- as opposed to good faith error-- would justify an award of damages, was not
a correct statement of the law. Id. However, Morrison reiterated that failure of treatment does not
equate to error, and a doctor is not a guarantor of success, citing the Oregon Supreme Court which held
that "bad results notwithstanding, if the doctor did not breach the standard of care, he or she by definition
has committed no error in judgment. The source of the problem is in the use of the word ‘error’." Id. at
815 (quoting Rogers v. Meridian Park Hosp., 772 P.2d 929, 933 (Or. 1989)). The negligent failure
to conform to a standard of care is not proven by a lack of success in treatment. Exempting "errors in
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judgment" misleads the jury in its duty to distinguish between the physician having merely failed because the
treatment was unsuccessful and having negligently failed to conform to a standard of care.
¶24. Although the word "judgment" is present in the instruction sub judice, it is not used in the context
discussed in Morrison. Morrison pointed out that "reasonable judgment" is not the crucial issue, and
stated that "reasonable judgment is irrelevant if the treatment option selected provides reasonable care."
Morrison, 657 So.2d at 814 (quoting Rogers, 772 P.2d at 933). Thus the issue is whether reference
to the doctors’ “exercise of their best judgment” in instruction C-20, though potentially irrelevant, is also
reversible error. Morrison states that bad judgment in failing even to consider other treatment options
does not create liability if the option chosen provided reasonable care. Conversely, good judgment would
not insulate a doctor from liability unless it was good judgment in the selecting of a course of action that is
within the standard of care. Because the use of the word "judgment" in this instruction was coupled with
choosing between different treatment choices that all were within the standard of care, as testified to by
expert witnesses, there is no error.
¶25. That having been said, I realize that for an analysis of this challenged instruction to be clearly
understood, it is important to explain the factual context in which it is presented.
¶26. Expert testimony was presented at trial regarding the fact that at the time of Ms. Bickham’s
treatment, a transition was occurring which ultimately resulted in a change of the standard of care with
regard to use of anticoagulant medications. Thus, in my view, the most significant part of the instruction is
the phrase "two or more alternative courses of action."
¶27. Bickham's principal argument was that the two alternative treatment courses, both being within the
standard of care, were not proven by the evidence. Bickham argues that there were two diametrically
opposed views that simply could not both be considered within the standard of care. Indeed, in the
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Bickham's brief is an accusation that the defendants' experts were committing perjury in expressing the
opinions that they did.
¶28. A careful review of the record reveals, however, that this was not the typical “battle of experts”
in which each side finds competent physicians to testify regarding the standard of care, with one saying the
actions or inactions of the physician were within the standard of care and the other saying they were not.
The situation here placed the doctor in the position of deciding which of two accepted standards of care
he should follow.
¶29. It is important to note what the instruction C-20 did not state. It did not inform the jury that the
divergent opinions expressed were, in fact, all within the standard of care. That decision was for the jury.
Instead, the instruction indicated that more than one way to treat an ailment might be recognized by
reasonable medical professionals “as being proper and within the standard of care.” In addition, it did not
state that the jury's task was to place all of the disagreements between expert witnesses into the "two or
more courses of treatment" category or to place none of them. The instruction would have allowed jurors
to conclude that some of the disagreements reflected alternative treatments in which both were within the
standard of care, and other divergences between expert opinions could not be reconciled. An instruction
not challenged on appeal (C-13) states that jurors must decide if expert opinions "are not sound, or that
the opinion is outweighed by other evidence," and in those events they "may disregard the opinion entirely."
¶30. Three representative examples of what jurors might have considered under either of these
instructions are: whether at some stage the doctors should have tested for a blood disorder; whether a PTT
score of one and a half times the baseline, or two and a half times, was the proper ratio; and whether a
separate drug should have been administered sooner. The problem with Bickham’s PTT measurements
may have been that she suffered from a blood disorder called antithrombin-III (AT-III) deficiency. There
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was testimony from the defendants' experts that in 1991 when this treatment was occurring, testing for AT-
III was not within the standard of care when administering Heparin. Bickham's doctors indicated that
testing for the disorder should have occurred once evidence was gained that Heparin was not succeeding.
A specific instruction (C-17) informed the jury that it was to decide whether failure to discover this disorder
was within the exercise of reasonable care.
¶31. There was expert testimony that in 1991 the proper method for administering Heparin therapy was
to maintain a PTT score of one and a half to two times the control value. That ratio was maintained here.
There was also testimony that beginning in 1991 a significant clinical trial was undertaken at forty medical
universities to determine what the proper ratio should be. A control group that was maintained on that
baseline was part of the experiment, while other groups received higher dosages. These were two different
treatment programs, two regimens, that the jury properly could find were both within the standard of care.
Doubts may have existed that led to the clinical trials, but that does not mean that only one approach was
within the standard of care.
¶32. With that evidentiary background, examination of the validity of the instruction's reference to two
courses of action can proceed. Mississippi adheres to a national standard of care in medical malpractice
cases. Hall v. Hilbun, 466 So. 2d 856, 873 (Miss. 1985). As Morrison recognized, there may be
more than one treatment option for a medical problem. If the physician chooses one of the reasonable
treatment options within the standard of care, that choice does not create liability. Morrison, 657 So. 2d
at 814-15.
¶33. A statement of the law consistent with these principles is this:
Where competent medical authority is divided, a physician will not be held responsible if
in the exercise of his judgment he followed a course of treatment advocated by a
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considerable number of recognized and respected professionals in his given area of
expertise.
Jones v. Chidester, 610 A.2d 964 (Pa. 1992).
¶34. There was testimony from defense experts which contradicted testimony from Bickham's experts.
Whether competent medical authority was indeed divided on the proper course of treatment was as much
a question of fact for the jury as was the determination of whether the course of treatment followed was
within the standard of care. Here, the jury verdict necessarily meant that the course of treatment taken by
the defendants was within the standard of care. Whether the jury also would have found that the opinions
expressed by the Bickham's experts were consistent with the standard of care is unknown and irrelevant
for our purposes. In my view, the instruction that led to this jury verdict was not an erroneous one. In this
specific, narrow context, I submit that the use of the phrase “in the exercise of their best judgment” is NOT
the fatal flaw which the plurality finds it to be under Morrison. The jury obviously placed greater
credibility on experts than Bickham’s experts. “When evidence is conflicting, we defer to the jury’s
determination of the credibility of witnesses and the weight of their testimony.” Ducker v. Moore, 680
So. 2d 808, 811 (Miss. 1996). In this case, the search for truth focused on a battle of the experts, each
armed with a particular view of the parties’ conflicting theories as to how Bickham’s death occurred. After
hearing all the testimony, the jury, as the ultimate trier of fact, rendered its verdict.
¶35. Finally, it is important to note that instruction C-20 is not to be considered in a vacuum. The
instructions as a whole are examined to determine if the jury was properly instructed. Payne v. Rain
Forest Nurseries, Inc., 540 So. 2d 35, 40-41 (Miss. 1989). Instructions C-5, C-11, C-13 and C-16
noted above, provided additional and consistent guidance, and none of them are criticized on appeal.
Instruction C-16 informed the jury that the doctors must possess the "degree of care, diligence and skill
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as is ordinarily possessed by minimally competent and reasonably diligent, skillful, careful and prudent
obstetrician practicing throughout the United States." In addition the instruction informed the jury that the
doctors actions must be examined under the circumstances as they existed during their treatment of Tamara
Bickham, not using hindsight.
¶36. Instruction C-5 instructed the jury as to the steps that it must take to find for Bickham. In essence
the jury had to find that Dr. Grant failed to exercise the requisite degree of care and skill required by a
minimally competent and qualified obstetrician-gynecologist, and that his failure to exercise such skill and
care was the cause of Tamara Bickham's death. This instruction makes it clear that the jury must judge Dr.
Grant's professional actions and decisions.
¶37. C-13 instructed the jury that it must decide if expert opinions are not sound, or that the opinions
are outweighed by other evidence, and that in those events it may disregard the opinion entirely.
¶38. Finally, Instruction C-11 instructed the jury that it must return a verdict for Bickham if it found that
Drs. Grant and Harris did not meet the minimal requirements of competence by failing to properly diagnose,
or properly treat, or properly monitor the treatment, or order the proper diagnostic tests or timely consult
specialists about thrombophlebitis and pulmonary embolism.
¶39. Accordingly, I believe that the trial court did not err in giving Instruction C-20 here. The conflicting
expert testimony could reasonably be found by the jury to represent two courses of treatment available to
Drs. Grant and Harris, from which a choice needed to be made. As Morrison discusses, the physicians
do not even need to be aware of all possible treatments if they choose one that is within the standard of
care. Morrison, 657 So.2d at 814-15. The jury instructions as a whole adequately informed the jury that
the doctors were to be examined for their professional judgment.
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¶40. Although C-20 is not a model instruction to be followed, and certainly could have been more
artfully drawn, its presentation to the jury did not constitute reversible error.
¶41. In my view, the jury was adequately instructed. The granting of Instruction C-20 was not reversible
error. The decision of the Court of Appeals should be reversed as to Drs. Grant and Harris and Rush
Group and the judgment of the Lauderdale County Circuit Court reinstated.
¶42. For these reasons, I concur in part and dissent in part.
SMITH, P.J., WALLER AND CARLSON, JJ., JOIN THIS OPINION.
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