Charles Norman, Jr. v. Anderson Regional Medical Center , 262 So. 3d 520 ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-00153-SCT
CHARLES NORMAN, JR., INDIVIDUALLY AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF CHARLES NORMAN, SR.,
AND THE ESTATE OF PAT NORMAN
v.
ANDERSON REGIONAL MEDICAL CENTER
DATE OF JUDGMENT: 12/01/2016
TRIAL JUDGE: HON. LESTER F. WILLIAMSON, JR.
TRIAL COURT ATTORNEYS: H. WESLEY WILLIAMS, III
CHRIS J. WALKER
CLAIRE FRANCES STAMM
ROMNEY HASTINGS ENTREKIN
PEELER GRAYSON LACEY, JR.
SHIRLEY M. MOORE
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHRIS J. WALKER
H. WESLEY WILLIAMS, III
ATTORNEYS FOR APPELLEE: ROMNEY H. ENTREKIN
P. GRAYSON LACEY, JR.
SHIRLEY M. MOORE
BENJAMIN B. MORGAN
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 01/24/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. The estate and beneficiaries of Charles Norman, Sr., appeal the trial court’s exclusion
of Norman’s medical experts and grant of summary judgment in favor of Anderson Regional
Medical Center. Because the trial court properly found that Norman’s experts’ testimony
lacked sufficient foundation in the medical literature and because no genuine issue of
material fact remains, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On December 12, 2011, Charles Norman, Sr., was admitted to Anderson Regional and
underwent a cardiac catheterization with stent placement, which was performed by his
cardiologist, Dr. Michael Purvis. Dr. Purvis performed the procedure without significant
complication, and he expected to discharge Norman two days later.
¶3. At some point during the overnight hours of December 13 to 14, 2011, Norman
suffered an ischemic stroke. Norman’s wife complained to nursing staff that she observed
symptoms of a stroke as early as 7:00 a.m. the next morning, which the nurses documented
in Norman’s chart at 8:00 a.m. Neither Dr. Purvis nor any other medical doctor was notified
of the stroke until much later in the day. In fact, Dr. Purvis first became aware of the stroke
when he made his rounds around 2:30 that afternoon. Dr. Purvis then consulted Dr. Jimmy
Wolfe, a neurologist, who performed a CT scan that confirmed Norman had suffered a
stroke. By the time the doctors became aware of the stroke (at least seven and a half hours
after Norman’s wife first complained to the nursing staff), the time frame within which tissue
plasminogen activator (“tPA”)—a “clot-buster” drug used to restore blood flow to a stroke
victim’s brain—is to be effectively administered had passed.
2
¶4. Norman remained at Anderson Regional two to three days after he had his stroke. He
was then transferred to a step-down unit for rehabilitation before finally being transferred to
Bedford Nursing Home at Marion, Mississippi, where he remained for the rest of his life.
Following the stroke, Norman could no longer care for himself, provide for his family, or
enjoy the quality of life he was accustomed to.
¶5. Norman sued Anderson Regional a little more than a year before his death in the
Circuit Court of Lauderdale County. Both Norman and his wife have since died. The
decedents’ estates were substituted as plaintiffs and real parties in interest. Norman alleges
that Anderson Regional, by and through the nurses on duty when Norman suffered the stroke,
was negligent in its care and treatment of Norman in December 2011.1
¶6. Anderson Regional subsequently stipulated that its nurses breached the applicable
standard of care by not recognizing and reporting Norman’s stroke symptoms to a physician
earlier. Anderson Regional further conceded that the nursing staff’s delay in reporting
Norman’s stroke prevented the possible administration of tPA. Anderson Regional, however,
denied that Norman was ever a candidate for tPA administration, noting that Norman was
a “75-year-old, brittle diabetic with a relevant medical history that was positive for atrial
fibrillation, hypertension, low ejection fraction, and coronary artery disease.”2
1
Anderson Regional and John Does 1-10 are the only named defendants in this case.
2
It was later discovered that Norman had sustained a prior, unreported stroke
approximately two months earlier, but that stroke is not at issue in the current litigation.
3
¶7. Anderson Regional filed motions to strike and/or exclude Norman’s experts: Dr.
Harmut Uschmann, Dr. Michael Winkelmann, and Dr. Daisy Marie Thomas. Dr. Uschmann
and Dr. Winkelmann both opined that Norman would have had a greater than 50 percent
chance of a better outcome had Anderson Regional complied with the applicable standard
of care and administered tPA in a timely fashion. Dr. Thomas opined that Anderson
Regional’s failure to give Norman tPA prevented his recovery and contributed to his death.
¶8. Anderson Regional filed its motion for summary judgment based on the premise that
Dr. Uschmann’s testimony should be excluded.3 After hearing arguments, the trial court
entered its Memorandum Opinion and Order granting summary judgment in favor of
Anderson Regional. The trial court concluded that Norman’s experts’ opinions were neither
based on nor supported by reliable data (i.e., the medical literature) regarding the probability
tPA would have been effective even if it had been timely administered. As a result, Norman
failed to prove by a preponderance of the evidence that he would have had a greater than 50
percent probability of a substantially better outcome had his stroke been timely diagnosed
and had tPA been timely administered.
¶9. Norman now appeals.
3
Norman’s entire argument on appeal revolved around Dr. Uschmann’s testimony
alone.
4
DISCUSSION
¶10. This appeal challenges this Court’s longstanding precedent adopting the loss-of-
chance causation standard in medical-malpractice cases. For Norman to recover under our
loss-of-chance causation standard, he must prove a greater than 50 percent chance of a
substantially better outcome had Anderson Regional timely recognized and reported his
stroke and administered tPA.
¶11. This Court reviews a trial court’s grant of summary judgment de novo. Kilhullen v.
Kan. City S. Ry., 8 So. 3d 168, 174 (Miss. 2009). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). Evidence
will be viewed in the light most favorable to the nonmoving party. Kilhullen, 8 So. 3d at
174-75.
I. Whether the trial court properly excluded Norman’s experts and granted
summary judgment on the basis that the expert opinions lacked sufficient
foundation in the medical literature.
¶12. To establish a prima facie case of medical malpractice under Mississippi law, a
plaintiff must prove by a preponderance of the evidence (1) the applicable standard of care;
(2) a failure to conform to the required standard; and (3) an injury proximately caused by a
defendant’s noncompliance with the standard. Mem’l Hosp. at Gulfport v. White, 170 So.
3d 506, 508 (Miss. 2015). As a rule, the plaintiff must demonstrate each of these elements
5
through medical-expert testimony, and the expert must articulate and identify the standard
of care that was breached and establish that the breach was the proximate cause or the
proximate contributing cause of the alleged injuries. Hubbard v. Wansley, 954 So. 2d 951,
957 (Miss. 2007). Because Anderson Regional stipulated it breached the standard of care,
this Court’s analysis focuses solely on the issue of causation.
¶13. Mississippi law does not require a plaintiff to prove causation with certainty. Clayton
v. Thompson, 475 So. 2d 439, 445 (Miss. 1985). Mississippi law requires proof of causation
to a degree of reasonable medical probability that—absent the alleged malpractice—a
significantly better result was probable, or more likely than not (i.e., a greater than 50 percent
chance of a substantially better outcome than was in fact obtained). Id.; Ladner v. Campbell,
515 So. 2d 882, 889 (Miss. 1987). In Mississippi, the threshold of proof required for
recovery has been termed the “loss of chance.” Clayton, 475 So. 2d at 444.
¶14. This Court first addressed Mississippi’s loss-of-chance standard in Clayton, in which
we concluded that “Mississippi law does not permit the recovery of damages because of mere
diminishment of the ‘chance of recovery.’” Id. at 445. Clayton clearly placed Mississippi
in line with those jurisdictions that require a plaintiff to show that “proper treatment would
have provided the patient ‘with a greater than 50 percent chance of a better result than was
in fact obtained,’” and Ladner reaffirmed the notion first established in Clayton that a mere
“better result absent malpractice” fails to meet the requirements of causal connection.
Ladner, 515 So. 2d at 889. This Court has since applied Mississippi’s loss-of-chance
6
standard consistently in cases such as Hubbard and White, adhering to our current and
longstanding precedent that “[p]ossibilities will not sustain a verdict.” Kramer Serv., Inc.
v. Wilkins, 184 Miss. 483, 497, 186 So. 625, 627 (1939) (quoting Ill. Cent. R.R. v. Cathey,
70 Miss. 332, 338, 12 So. 253 (1892)); Griffith v. Entergy Miss., Inc., 203 So. 3d 579, 589
(Miss. 2016) (“[V]erdicts are to be founded upon probabilities . . . and not upon
possibilities[.]”).
¶15. In its Memorandum Opinion and Order summarily dismissing Norman’s claims, the
trial court cited King v. Singing River Health System4—a factually analogous case involving
the timely administration of tPA—as controlling authority. In King, the trial court similarly
granted the defendants’ motions to exclude the plaintiffs’ expert testimony because the
expert’s opinions were not based on reliable data. King, 158 So. 3d at 320. The trial court
in King found that plaintiffs’ expert was unable to cite any medical literature to support his
opinion that the decedent would have had a greater than 50 percent chance of improvement
had her stroke been treated as she claimed it should have been. Id. King’s expert based his
opinions on four studies measuring the efficacy of tPA on stroke patients, two of which are
the subjects of dispute in the current case5—the 1995 NINDS study6 and the 2008 ECASS-III
4
King v. Singing River Health Sys., 158 So. 3d 318 (Miss. Ct. App. 2014).
5
Norman’s experts also relied upon the 2008 Safe Implementation of Treatments in
Stroke-Monitoring Study (the “SITS-MOST study”).
6
The National Institute of Neurological Disorders and Stroke rt-PA Stroke Study
Group (the “NINDS study”).
7
study.7 Id. at 327. The Mississippi Court of Appeals affirmed and found that, because the
NINDS and ECASS-III studies supported approximately 12 and 7 percent chances for
improvement in stroke patients respectively, King’s expert testimony lacked sufficient
support in the medical literature and failed to satisfy Mississippi’s loss-of-chance standard.
Id. at 327-29.
¶16. Consistent with King, the trial court concluded that Norman’s expert testimony lacked
sufficient support within the medical literature. The trial court found that no study, not even
the benchmark NINDS study, demonstrates that timely tPA treatment provides a greater than
50 percent chance of a better outcome. As this Court has stated, when an expert renders an
opinion that is attacked as “not accepted within the scientific community,” the party offering
the expert’s opinion must, at a minimum, present the trial court with some evidence
indicating that the offered opinion has some degree of acceptance in the scientific
community. Hill v. Mills, 26 So. 3d 322, 332-33 (Miss. 2010); see also King, 158 So. 3d
at 326 (“[W]here a theory has been studied in the medical literature and an expert’s opinion
is challenged for being contrary to the medical literature, there must be some support in the
medical literature for a medical expert’s opinion or some basis for believing that the medical
literature is wrong.”). Norman failed to present such evidence.
¶17. Dr. Uschmann testified to a reasonable degree of medical probability based on the
above peer-reviewed medical literature that, more probable than not, Norman would have
7
The Third European Co-operative Acute Stroke Study (the “ECASS-III study”).
8
been substantially better off had he timely received tPA. He also testified that “it is more
probable than not that Norman suffered from a small-vessel type stroke with a cardioembolic
etiology.”8 Anderson Regional challenged Dr. Uschmann’s testimony, arguing that it was
contrary to the prevailing medical literature and specifically contending that no support exists
in the medical literature for the opinion that tPA, or any other supportive stroke care, would
have provided Norman with a greater than 50 percent chance of a substantially better
outcome.
¶18. Throughout his deposition, Dr. Uschmann repeatedly acknowledged that no support
exists in the relevant medical literature for his opinion that tPA would have provided Norman
with a greater than 50 percent chance of a better outcome. To be clear, Dr. Uschmann
subsequently stated in his amended affidavit, “I am not opining that the absolute benefit of
tPA exceeds fifty percent.” This clarification, however, no more advances Norman’s case
than establishes a foundation for Dr. Uschmann’s opinion. The undisputed medical
evidence demonstrates, and all the experts in this case agree, the effective rate (i.e., the
absolute benefit9) of timely administered tPA is between 8 and 12 percent—a rate far below
8
Even considering the effective rate of tPA for this specific type of stroke, as Dr.
Uschmann suggested, Norman still fails to satisfy this Court’s loss-of-chance standard. Dr.
Uschmann himself testified that “[f]or a small-vessel occlusive or small-vessel type stroke,
the absolute benefit of tPA is twenty-five (25) percent.”
9
To illustrate the inherent difficulty of using relative measures alone to discern
whether a medication would more likely than not cause a patient to improve, assume that a
particular medication increases the recovery rate from an illness from 10 to 16 percent. Even
though the relative measure of the drug’s efficacy is 60 percent (i.e., the proportional
increase in efficacy attributable to the medication), the absolute efficacy of the drug is only
9
the 50 percent threshold required to prove causation. Thus, by Dr. Uschmann’s own
concessions, Norman’s loss-of-chance claim fails as a matter of law.10
¶19. The Florida Supreme Court addressed a similar issue in Cox v. St. Joseph’s Hospital,
71 So. 3d 795 (Fla. 2011). Cox is a stroke case involving the failure to administer tPA. The
issue was whether the intermediate appellate court impermissibly reweighed legally sufficient
evidence of causation from Cox’s expert witness that the timely administration of tPA more
likely than not would have prevented or mitigated the consequences of the stroke. Cox, 71
So. 3d at 799.
¶20. In Cox, the hospital’s ER staff never obtained or attempted to acquire information
about the precise onset time of Cox’s stroke symptoms from the responding paramedics,
which ultimately deprived Cox the opportunity to receive tPA. Id. at 797. Cox’s expert, Dr.
Nancy Futrell, opined that “to a high degree of medical probability” she believed that if Cox
had received tPA, he “would have had a very good recovery and have minimal or no
neurological deficit.” Id. The defendants attacked Dr. Futrell’s opinion based on a general
contention that the NINDS study did not establish a “more likely than not” chance of
improvement from the effects of the stroke. Id. at 798.
6 percent, thereby indicating that the administration of the medication will almost certainly
not cause the patient to improve.
10
It is worth noting that Dr. Uschmann testified on behalf of Memorial Hospital in
White. In that case, Dr. Uschmann testified that timely administered tPA supported only a
“small chance” or possibility of a substantially better outcome. White, 170 So. 3d at 507.
10
¶21. Florida follows the same loss-of-chance causation standard that Mississippi follows;
however, despite Norman’s heavy reliance on Cox, we find it easily distinguishable. First,
Norman mischaracterizes the issue considered by the Florida Supreme Court in Cox.
Although Norman frames the issue in Cox as “whether the administration of tPA would have
prevented or mitigated the . . . consequences of the ischemic stroke,” the issue was whether
the intermediate appellate court impermissibly reweighed legally sufficient evidence of
causation and substituted its own factual findings in place of those of the jury. Thus, the Cox
court merely considered the sufficiency of the evidence and whether the intermediate
appellate court had substituted its own factual findings for those of the jury; it neither
disturbed the jury’s determination nor did it call into question the trial judge’s evidentiary
discretion.
¶22. Second, Cox is factually distinguishable. Dr. Futrell did not summarily conclude that
it was more probable than not that Cox would have been substantially better off had he timely
received tPA, as did Dr. Uschmann. Dr. Futrell testified that Cox would have experienced
a “very good recovery” with “minimal or no neurological deficit,” and she based her
testimony on her own clinical experience administering tPA, the relevant medical literature,
and her knowledge of the facts and records available to her. She also explained in great
detail—based on a thorough review of Cox’s CT scans—why she believed that Cox was an
excellent candidate for tPA. Dr. Uschmann did little more than provide summary
conclusions of a general nature.
11
¶23. Lastly, in Cox, defense counsel attacked Dr. Futrell’s testimony as contrary to the
medical literature. Unlike Dr. Uschmann, Dr. Futrell neither acknowledged nor conceded
that her testimony in fact lacked sufficient support in the medical literature or failed to satisfy
the applicable causation standard. Instead, she distinguished the NINDS study and provided
a detailed, patient-specific foundation for her opinion. Dr. Uschmann failed to provide a
similarly detailed, patient-specific foundation for his opinion and even conceded that no
study supports a greater than 50 percent benefit from the timely administration of tPA.
¶24. Our analysis must be guided by Mississippi Rule of Evidence 702, which addresses
the admissibility of expert testimony. A witness may testify as an expert to assist “the trier
of fact to understand the evidence or to determine a fact issue” if the witness is “qualified as
an expert by knowledge, skill, experience, training, or education” and “if (1) the testimony
is based upon sufficient facts or data; (2) the testimony is the product of reliable principles
and methods; and (3) the expert has reliably applied the principles and methods to the facts
of the case.” Miss. R. Evid. 702.
¶25. Here, Norman failed to prove by a preponderance of the evidence that he would have
experienced a greater than 50 percent chance of a substantially better outcome had Anderson
Regional timely recognized and reported his stroke and administered tPA. Norman put forth
no evidence that Anderson Regional proximately caused or contributed to his eventual
death—even had his stroke been timely recognized and reported. Thus, because Norman’s
expert testimony is not based on reliable data as required by Rule 702, and because it fails
12
to satisfy this Court’s loss-of-chance causation standard, no genuine issues of material fact
exist. Summary judgment was proper, and we affirm.
II. Whether the trial court properly granted summary judgment on Norman’s
breach-of-contract claim.
¶26. Norman asserts that the trial court erred by granting summary judgment on his breach-
of-contract claim. He alleges Anderson Regional breached its “Conditions of Admission”
to provide “general duty nursing care” when the nursing staff failed to “carry out the
instructions of [Norman’s] physician” to report changes in his condition and to timely assess,
recognize, report, diagnose, and treat Norman for a stroke. According to Norman, this breach
and failure to provide “general duty nursing care” ultimately deprived Norman the
opportunity to be considered for tPA administration and other early intervention measures
and resulted in the foreseeable consequences of loss of livelihood, pain and suffering,
emotional distress, and mental anguish.
¶27. Under Mississippi law, a plaintiff asserting any breach-of-contract claim has the
burden to prove by a preponderance of the evidence (1) that a valid and binding contract
exists; and (2) that the defendant has broken or breached it without regard to the remedy
sought or the actual damage sustained. Bus. Commc’ns, Inc. v. Banks, 90 So. 3d 1221,
1225 (Miss. 2012) (“Monetary damages are a remedy for, not an element of, breach of
contract.”), overruling Warwick v. Matheney, 603 So. 2d 330 (Miss. 1992). The context in
which breach of contract was raised controls.
13
¶28. In Murray v. University of Pennsylvania Hospital, 490 A.2d 839, 843 (Pa. Super. Ct.
1985), the Superior Court of Pennsylvania said that a patient may bring an action in tort and
also in contract if the doctor entered into a contractual relationship with the patient to
produce a particular result from the course of treatment. Whether the patient brings an action
in tort, in contract, or in both depends on the nature of the damages sought. Id. If the
damages are for personal injuries, the action is one sounding in tort; however, if the damages
are “intended to give the injured parties the benefit of their bargain,” the action is one in
contract. Id. The holding in Murray is consistent with this Court’s holding in Hutchinson
v. Smith, 417 So. 2d 926 (Miss. 1982), in which this Court said that a court must look at the
action as a whole to determine if it sounds in tort or in contract.
¶29. In McMichael v. Howell, a patient claimed breach of contract in addition to medical
malpractice on the basis of the doctor’s alleged failure “to perform the services which [the
doctor had] agreed to perform” and negligence in the services and care rendered, which the
patient claimed deviated from the applicable standard of care. McMichael v. Howell, 919
So. 2d 18, 23 (Miss. 2005). We found that the breach-of-contract argument was “nothing
more than medical malpractice” and affirmed dismissal of both claims on the same basis.
Id. Thus, Mississippi law is clear that in reviewing the trial court’s grant of summary
judgment on Norman’s breach-of-contract claim, this Court must look at the action as a
whole to determine if it sounds in tort or in contract.
14
¶30. The record evidence indicates that Norman’s breach-of-contract claim is nothing more
than a medical-malpractice claim. Here, the breach-of-contract claim is very clearly a
general claim for breach of medical services. First, Norman’s complaint alleges that
Anderson Regional breached a contract “to provide [Norman] reasonable medical services.”
Second, Norman argued that Anderson Regional breached the “Conditions of Admission”
by failing to provide “general duty nursing care” and by failing to inform the physician of
changes to Norman’s medical condition—Norman used Anderson Regional’s admitted
breach of the standard of medical care as proof to support the breach-of-contract claim.
Third, at the summary judgment hearing, the exchanges between the trial court and counsel
for both Anderson Regional and Norman established that causation was the only issue before
the court.
¶31. Thus, by Norman’s own admission, all of his claims, including the breach-of-contract
claim, require proof that Anderson Regional’s failure to timely recognize and report the
stroke proximately caused Norman’s damages. Even under a breach-of-contract theory,
Norman would have to prove causation. Leard v. Breland, 514 So. 2d 778, 782 (Miss. 1987)
(discussing the but-for causation standard for damages in a breach-of-contract case). Stated
differently, Norman’s breach-of-contract claim sounds in tort rather than in contract, and, as
such, it is nothing more than a claim for medical malpractice.
¶32. The trial court did not err in granting summary judgment on the breach-of-contract
claim—no genuine issue of material fact exists. Norman failed to prove that timely
15
recognition of his stroke would have, more probably than not, produced a substantially better
outcome, and his claim, whether labeled medical malpractice or breach of contract, remains
inconsistent with the undisputed medical facts regarding the low efficacy rate of timely
administered tPA.
III. Whether this Court should reevaluate Mississippi’s loss-of-chance framework
in lieu of the reduced-likelihood approach.
¶33. Lastly, Norman asserts on appeal that this Court should overrule the loss-of-chance
causation standard and instead adopt the reduced-likelihood approach—which Norman
contends more accurately reflects the principles of Mississippi’s pure comparative-
negligence framework.11
¶34. Under the reduced-likelihood approach, compensation is available for negligence even
if a patient’s chance of improvement is below 50 percent. Guest, supra note 11, at 57. If the
patient’s chance of improvement is less than 50 percent, the decrease in improvement
probability is calculated and then multiplied by the full value of damages, so the award is
proportional to the incremental decrease in chance. Id. Thus, the reduced-likelihood
approach “classifies the lost chance as the injury itself,” rather than as a standard of
causation. Matthew Wurdeman, Comment, Loss-of-Chance Doctrine in Washington: From
11
Norman notes that twenty-three states, including Mississippi, have adopted the all-
or-nothing approach, while another twenty-three states have adopted the reduced-likelihood
approach. For the state-by-state analysis cited by Norman, see Lauren Guest, David Schap
& Thi Tran, The “Loss of Chance” Rule as a Special Category of Damages in Medical
Malpractice: A State-By-State Analysis, 21 J. Legal Econ. 53, 59 (2015).
16
Herskovits to Mohr and the Need for Clarification, 89 Wash. L. Rev. 603, 607 (2014).
Norman relies primarily on Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008), one of
the leading cases on the reduced-likelihood approach, in support of his argument.
¶35. Matsuyama involved a negligent failure to diagnose gastric cancer when the patient
had a less-than-even chance of surviving the cancer with a timely diagnosis. Matsuyama,
890 N.E.2d at 823. As part of its analysis, the Matsuyama court surveyed the various
critiques of the all-or-nothing approach, an approach Norman equates with Mississippi’s
loss-of-chance causation standard. The Matsuyama court noted the following criticisms: (1)
the all-or-nothing approach does not serve the basic aim of fairly allocating the cost and risks
of human injuries; (2) the all-or-nothing approach fails to deter medical negligence because
it immunizes whole areas of medical practice from liability; (3) the all-or-nothing approach
fails to provide the proper incentives to ensure that the care patients receive does not fall
below the standard of care and skill of the average member of the profession practicing the
specialty; and (4) the all-or-nothing approach fails to ensure that victims who incur the real
harm of losing their opportunity for a better outcome are fairly compensated for their loss.
Id. at 830. In summary, the Matsuyama court chose the injury-based analytical method and
viewed the damage not as the ultimate outcome, but as the lost opportunity. Id. at 832; see
also Smith v. Providence Health & Servs.-Or., 393 P.3d 1106, 1119 (Or. 2017).
¶36. Norman advocates for a change in the law on the basis of fairness, because often it is
the defendant’s negligence that has made it impossible to determine whether a more
17
favorable outcome would have been realized had the patient received the care required by
the applicable standard of care. Matsuyama, 890 N.E.2d at 834. Norman argues that under
the loss-of-chance standard currently followed, this Court immunizes medical-care providers
from any negligence associated with the administration of or failure to administer tPA and
allows them to hide “behind the all-or-nothing rule.”
¶37. In contrast, Anderson Regional points out that “[c]omparative fault does not focus on
establishing the third element of the tort—causation.” We agree. Mississippi’s comparative-
negligence statute provides that “damages shall be diminished by the jury in proportion to
the amount of negligence attributable to the person injured[.]” Miss. Code Ann. § 11-7-15(Rev. 2004) (emphasis added). As such, in order to recover damages under this statute, a
plaintiff would first have to prove by a preponderance of the evidence that a defendant’s
negligent conduct was both the cause-in-fact and the proximate cause of the resulting
injuries. Norman has failed to meet his burden of proof.
¶38. Once the threshold has been met for recovery, comparative negligence would be
applied with regard to all factors that may have contributed to the injury. Consequently, we
find that “consistency and definiteness in the law are the major objectives of the legal
system,” and “[a] former decision of this [C]ourt should not be departed from, unless the rule
therein announced is not only manifestly wrong, but mischievous.” Hye v. State, 162 So. 3d
750, 755 (Miss. 2015); Caves v. Yarbrough, 991 So. 2d 142, 151 (Miss. 2008) (citation
omitted). Here, the law at issue is neither manifestly wrong nor is it mischievous. Rather,
18
this Court’s loss-of-chance jurisprudence is consistent with Mississippi’s pure comparative-
negligence framework, and, for this reason, this Court declines to overturn Mississippi’s
longstanding causation standard.
CONCLUSION
¶39. The trial court, in its discretion, properly excluded Norman’s experts and granted
summary judgment in Anderson Regional’s favor. We affirm the trial court’s grant of
summary judgment. We also decline to overturn Mississippi’s longstanding loss-of-chance
framework.
¶40. AFFIRMED.
RANDOLPH, P.J., MAXWELL, BEAM AND ISHEE, JJ., CONCUR.
KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
KING AND COLEMAN, JJ. CHAMBERLIN, J., NOT PARTICIPATING.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶41. Because the plaintiffs offered sufficient evidence to avoid the exclusion of their
experts at the summary judgment phase, I would reverse the circuit court’s judgment and
remand for further proceedings.
¶42. As the majority correctly articulates, the loss-of-a-chance doctrine controls this appeal.
Under that doctrine, the plaintiffs must show that, “but for the physician’s negligence,
[Charles Norman Sr.] had a reasonable probability of a substantial improvement. . . . Stated
another way, the plaintiff[s] must offer proof of ‘a greater than fifty (50) percent chance of
19
a better result than was in fact obtained.’” Mem’l Hosp. at Gulfport v. White, 170 So. 3d
506, 508-509 (¶ 11) (Miss. 2015).
¶43. Dr. Harmut Uschmann, one of the plaintiffs’ experts, provided deposition testimony
that Norman, who had suffered a stroke, would have had a greater than 50 percent chance
of improvement had he received timely administration of tPA—a clot-buster drug used to
neutralize the effects of a stroke. Anderson Regional Medical Center disputed Dr.
Uschmann’s testimony, arguing that greater than 50 percent improvement chances could not
be supported by the relevant medical literature. The Circuit Court of Lauderdale County
agreed with the hospital, excluded the plaintiffs’ medical experts, and granted summary
judgment.
¶44. On appeal the plaintiffs argue, inter alia, that the circuit court erred by relying on
statistics that set a higher standard than what is required under the loss-of-a-chance doctrine.
As an example, the circuit court examined percentages of tPA efficacy in relation to a
“favorable outcome” as defined by the NINDS study. According to that study, a “favorable
outcome” means a “score of 95 or 100 on the Barthel index, [less than or equal to] 1 on the
NIHSS and a modified Rankin Scale, and 1 on the Glasgow outcome scale.” Under the
Barthel index, a score of 100 applies to a patient who is completely independent, or, in other
words, a patient who achieves a perfect result. The plaintiffs correctly assert that the loss-of-
a-chance doctrine “does not require that a plaintiff prove a greater than fifty percent chance
of a perfect result or complete recovery.” The plaintiffs need only to show that Norman lost
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“a greater than fifty (50) percent chance of a better result than was in fact obtained.” White,
170 So. 3d at 509 (¶ 11) (emphasis added).
¶45. In light of the proper standard, the plaintiffs point to evidence contained in the record
that supports the theory that Norman could have had a greater than 50 percent chance of a
better result. For example, the Safe Implementation of Treatments in Stroke-International
Stroke Thrombolysis Registry (SITS-ISTR) found that 58 percent of patients administered
tPA in 3.0 to 4.5 hours after a stroke were functionally independent after three months. The
hospital challenges the significance of these statistics, but that dispute is for resolution by a
fact finder, not by this Court. Hill v. Mills, 26 So. 3d 322, 330 (¶ 28) (Miss. 2010) (“[A]
battle of the experts is to be decided by a jury.”).
¶46. In Cox v. St. Joseph’s Hospital, 71 So. 3d 795, 799 (Fla. 2011),12 the Florida Supreme
Court addressed the same issue raised in this case. After reviewing much of same medical
literature that is before us, the Cox court determined that the tPA studies have created
“conflicting evidence as to . . . causation or the likelihood of causation.” Id. at 801.
Specifically, the court acknowledged that “the significance of [the] statistics from the NINDS
study . . . is a matter for the jury, not a matter for the appellate court to resolve as a matter of
law.” Id. As did the Florida Supreme Court, I find that the significance of the statistics from
the tPA studies should be resolved by a fact finder rather than by a summary judgment order.
12
Florida’s loss-of-a-chance doctrine mirrors that of this Court, making Cox not only
relevant but also persuasive.
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¶47. Because I would afford relief to the plaintiffs under the current state of Mississippi
law, I do not reach their request for a change in our loss-of-a-chance doctrine. Analysis of
that argument is unnecessary for disposition of this case and, therefore, would amount to
obiter dicta and an advisory opinion. “[T]his Court does not issue advisory opinions.”
Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 93 (¶ 19) (Miss. 2010).
¶48. The circuit court abused its discretion in excluding the plaintiffs’ experts and erred
in granting summary judgment. Further trial court proceedings are needed to resolve the
issues in this case. I respectfully dissent.
KING AND COLEMAN, JJ., JOIN THIS OPINION.
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