                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2010-IA-00190-SCT

MID-SOUTH RETINA, LLC

v.

BERNICE CONNER


DATE OF JUDGMENT:                        01/11/2010
TRIAL JUDGE:                             HON. THOMAS W. ALLEN
COURT FROM WHICH APPEALED:               COUNTY COURT OF COAHOMA COUNTY
ATTORNEYS FOR APPELLANT:                 SHELBY KIRK MILAM
                                         JOSIAH DENNIS COLEMAN
ATTORNEYS FOR APPELLEE:                  DANIEL M. CZAMANSKE, JR.
                                         JOSEPH HARLAND WEBSTER
NATURE OF THE CASE:                      CIVIL - MEDICAL NEGLIGENCE
DISPOSITION:                             REVERSED AND RENDERED - 09/08/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Bernice Conner filed a medical-negligence suit against Mid-South Retina, LLC. The

County Court of Coahoma County originally granted summary judgment in favor of Mid-

South, finding that Conner had failed to establish the necessary element of causation. The

trial court then reversed its judgment upon reconsideration and denied Mid-South’s motion

for summary judgment. Aggrieved, Mid-South filed a petition for interlocutory appeal, and

we granted the petition. For the reasons discussed below, we reverse the trial court’s
judgment denying Mid-South’s motion for summary judgment and render judgment here in

favor of Mid-South.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    In 2003, Mid-South Retina, LLC, and Dr. Brad Priester treated Bernice Conner for

age-related macular degeneration. As part of Conner’s treatment, she intravenously received

Visudyne, a drug that aids in cold-laser therapy for macular degeneration. During Conner’s

second visit to Mid-South, Visudyne infiltrated the soft tissue around the injection site in the

bend of Conner’s elbow.       Dr. Priester determined that enough Visudyne had entered

Conner’s bloodstream and proceeded with the cold-laser therapy. The therapy session

continued without incident.

¶3.    Visudyne is a photodynamic drug, and tissue containing the drug can easily burn if

exposed to sunlight. Dr. Priester testified that, because of this side effect, he ensured that

Conner’s elbow was sufficiently bandaged and covered prior to her leaving Mid-South.

Shortly after leaving, Conner called Mid-South complaining that her arm was hurting. She

was instructed to return to Mid-South. Upon her return, Dr. Priester sent Conner to a

dermatologist. The dermatologist instructed Conner to go immediately to an emergency

room. Conner did not go to the emergency room, but instead returned to her home.

¶4.    The next day, Dr. Priester contacted Conner, and she informed him that she was still

in pain. Dr. Priester instructed her to go to an emergency room. Conner went to an

emergency room and was referred to a general surgeon, who prescribed pain medication and

antibiotics. Conner saw the surgeon two more times in 2003, and the surgeon noted that the

injury on Conner’s elbow measured less than one centimeter in size.


                                               2
¶5.    Conner filed suit against Mid-South and Dr. Priester in 2004, alleging medical

negligence in the administration of Visudyne. The defendants filed a motion for summary

judgment, arguing that Conner had failed to designate an expert witness. Conner then

designated LaDonna Northington, a registered nurse, as her only expert witness. Northington

stated in her affidavit that the Mid-South nurses were negligent in failing to document fully

Conner’s treatment and the Visudyne infiltration. The defendants filed a rebuttal to Conner’s

designation, claiming that Conner had not established the necessary element of causation.

At the summary judgment hearing, Conner conceded that summary judgment was appropriate

as to Dr. Priester. On August 10, 2009, the trial court granted summary judgment on behalf

of Dr. Priester and Mid-South, finding that Conner had not sufficiently established all the

elements of her medical-negligence claim.

¶6.    On August 20, 2009, Conner filed a motion for reconsideration, attaching a

supplemental affidavit from Northington. Mid-South moved to strike the affidavit, arguing

that Conner should not be able to correct the deficiencies in her previous affidavit through

a post-judgment motion for reconsideration. The trial court found that Conner had, at that

time, established all the necessary elements of her medical-negligence claim. Thus, the trial

court denied Mid-South’s motion to strike the supplemental affidavit submitted by

Northington, reversed its previous grant of summary judgment in favor of Mid-South, and

denied Mid-South’s motion for summary judgment. Mid-South then petitioned this Court for

an interlocutory appeal, and we granted Mid-South’s petition.

                                      DISCUSSION




                                             3
¶7.    Mid-South raises three issues on interlocutory appeal: (1) whether Northington is

qualified to render an expert opinion on medical causation; (2) whether the trial court erred

in denying Mid-South’s motion for summary judgment; and (3) whether the trial court erred

in considering Northington’s supplemental affidavit. Because the first two issues are

dispositive, we decline to address the final issue on appeal. See Berry v. Patten, 51 So. 3d

934, 937 (Miss. 2010). We combine our discussion of the first two issues for the purposes

of today’s appeal.

       WHETHER MID-SOUTH IS ENTITLED TO SUMMARY JUDGMENT
       BECAUSE CONNER HAS FAILED TO ESTABLISH ALL OF THE
       NECESSARY ELEMENTS OF HER MEDICAL-NEGLIGENCE
       CLAIM.

¶8.    In order to establish a prima facie case of medical negligence, the plaintiff must prove

the following elements:

       (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.

McDonald v. Mem’l Hosp. at Gulfport, 8 So. 3d 175, 180 (Miss. 2009) (quoting Delta Reg’l

Med. Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007)) (other citations omitted). In

medical-negligence cases, expert testimony is generally required to survive summary

judgment. McDonald, 8 So. 3d at 180. Summary judgment is appropriate when the

nonmoving party has failed sufficiently to establish an essential element of that party’s claim.

Buckel v. Chaney, 47 So. 3d 148, 153 (Miss. 2010) (citations omitted).




                                               4
¶9.       Citing our recent opinion in Vaughn v. Mississippi Baptist Medical Center, 20 So.

3d 645 (Miss. 2009), Mid-South contends that Northington cannot offer an opinion on

medical causation, and thus, Conner has failed to establish the necessary element of

causation.        In Vaughn, we “explicitly [held] that nurses cannot testify as to medical

causation.” Id. at 652.

¶10.      In Vaughn, the plaintiff’s only expert-causation witness was a registered nurse. Id.

at 651. The trial court granted the defendant’s motion for summary judgment, finding that

Vaughn had failed to show how her injury was the proximate result of the defendant’s acts

or omissions. Id. at 650. The trial court also struck Vaughn’s expert designation of a

registered nurse, “finding that nurses could not properly offer expert testimony as to medical

causation.” Id. Although we found that the trial court erred in striking all of the nurse’s

testimony, we ultimately found that summary judgment was proper.1 Id. at 655. Citing

Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So. 2d 1244, 1247-48 (Miss.

2002), and numerous holdings from other jurisdictions, we held that “nurses cannot testify


          1
              In finding that the trial court had erred in striking all of the nurse’s testimony, we
stated:

          Inasmuch as we have held that Keller could not testify as to medical causation,
          the trial court did not abuse its discretion in not allowing testimony from
          Keller that the negligent acts of Baptist nurses proximately caused Vaughn’s
          staph infection. While the trial court did err in barring Keller’s testimony
          outright and striking the portion of the affidavit regarding the elements of
          standard of care and deviations from the nursing standard of care, this
          assignment of error is moot, given that we have held summary judgment in this
          case was properly granted.

Id. at 655.


                                                   5
as to medical causation.” Vaughn, 20 So. 3d at 652. Accordingly, we held that the trial

court in Vaughn did not err in granting summary judgment in favor of the defendant because

the plaintiff had failed to establish the necessary element of causation. Id. at 653.

¶11.   In today’s case, Conner argues that the issue of whether Northington may render an

expert opinion on causation was not before the trial court and therefore is not properly before

this Court on interlocutory appeal. Mid-South moved for summary judgment on October 22,

2008, arguing that it was entitled to summary judgment because Conner had failed to

designate an expert witness.     In response to Mid-South’s motion, Conner designated

Northington, a registered nurse, as her expert witness. In November 2008, Conner submitted

Northington’s affidavit and filed a response to Mid-South’s motion for summary judgment,

stating that she had now designated an expert witness and that Northington was “competent

and qualified” to offer testimony. Mid-South filed a rebuttal memorandum in support of its

motion for summary judgment in December 2008. The trial court granted Mid-South’s

motion for summary judgment, finding that Northington was not familiar with Visudyne

administration and that Conner had not established the necessary element of causation. The

trial court entered its original order, granting Mid-South’s motion for summary judgment,

in August 2009. Conner filed her motion for reconsideration, and Mid-South responded in

August 2009 as well. The trial judge entered his order denying Mid-South’s motion for

summary judgment upon reconsideration in January 2010. We handed down our opinion in

Vaughn in October 2009 – two months after the parties had filed their last pretrial motions

and responses, but three months before the trial court had ruled on the motions. Vaughn, 20

So. 3d at 645.

                                              6
¶12.   The parties in today’s case were without the benefit of Vaughn during the pretrial

phase mentioned above, and we recognize that our holding in Vaughn was not brought

before the learned trial judge as part of the parties’ pretrial arguments. The rule in Vaughn

is clear: Nurses cannot render expert opinions on medical causation. Id. at 652. Thus the

relevant inquiry before us is whether this explicit rule applies to today’s appeal.

¶13.   Generally, “all judicial decisions apply retroactively unless the Court has specifically

stated the ruling is prospective.” Cleveland v. Mann, 942 So. 2d 108, 113 (Miss. 2006)

(citing Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So. 2d 1077, 1093

(Miss. 2000); Morgan v. State, 703 So. 2d 832, 839 (Miss. 1997)). Further, “newly

enunciated rules of law are applied retroactively to cases that are pending trial or that are on

appeal, and not final at the time of the enunciation.” Thompson v. City of Vicksburg, 813

So. 2d 717, 721 (Miss. 2002) (emphasis added).

¶14.   Understandably, Conner contends that Mid-South may not argue on appeal an issue

that it did not raise before the trial court.2 Our precedent discussing retroactivity of newly

announced rules of law, however, runs contrary to Conner’s assertion. In Ronald Adams

Contractor, Inc., we quoted the United States Supreme Court’s discussion of three possible

ways an issue of retroactivity may be resolved:




       2
         Although Mid-South did not explicitly argue before the trial court that nurses in
general may not testify as to medical causation, the issue of Northington’s qualifications was
brought before the trial court. In its rebuttal memorandum, Mid-South argued that
Northington was not qualified to give an expert opinion on Visudyne administration. The
trial court also did not address the issue of whether nurses in general may testify as to
medical causation, but did find ultimately that Northington was qualified to render an expert
opinion in today’s case.

                                               7
       First, a decision may be made fully retroactive, applying both to the parties
       before the court and to all others by and against whom claims may be pressed,
       consistent with res judicata and procedural barriers such as statutes of
       limitations. This practice is overwhelmingly the norm, and is in keeping with
       the traditional function of the courts to decide cases before them based upon
       their best current understanding of the law. It also reflects the declaratory
       theory of law, according to which the courts are understood only to find the
       law, not to make it . . . . Second, there is the purposely prospective method of
       overruling, under which a new rule is applied neither to the parties in the law-
       making decision nor to those others against or by whom it might be applied to
       conduct or events occurring before that decision. The case is decided under
       the old law but becomes a vehicle for announcing the new, effective law with
       respect to all conduct occurring after the date of that decision . . . . This
       approach claims justification in its appreciation that . . . to apply the new rule
       to parties who relied on the old one would offend basic notions of justice and
       fairness. But this equitable method has its own drawback: it tends to relax the
       force of precedent, by minimizing the costs of overruling, and thereby allows
       the courts to act with a freedom comparable to that of legislatures. Finally, a
       court may apply a new rule in the case in which it is pronounced, then return
       to the old one with respect to all others arising on facts predating the
       pronouncement. This method . . . breaches the principle that litigants in
       similar situations should be treated the same, a fundamental component of
       stare decisis and the rule of law generally.

Ronald Adams Contractor, Inc.,753 So. 2d at 1092-93 (quoting James B. Beam Distilling

Co. v. Georgia, 501 U.S. 529, 535-37, 111 S. Ct. 2439, 2443-44, 115 L. Ed. 2d 481 (1991),

superseded by statute on other grounds (citations omitted)).

¶15.   Historically, we have applied the first approach described and have applied the law

as it existed at the time of appellate review. Our decisions “are presumed to have retroactive

effect unless otherwise specified.” Ronald Adams Contractor, Inc., 753 So. 2d at 1093

(citing Morgan, 703 So. 2d at 839). In Vaughn, we did not state that our ruling was

prospective. Thus it is presumably retroactive. See Ronald Adams Contractor, Inc., 753

So. 2d at 1093 (citing Morgan, 703 So. 2d at 839). Accordingly, we apply our holding in

Vaughn with the full force of the precedent that it is.

                                               8
                                      CONCLUSION

¶16.   Northington, Bernice Conner’s only designated expert, may not render an expert

opinion on medical causation. See Vaughn, 20 So. 3d at 652. Without expert testimony on

medical causation, Conner has failed to establish all of the necessary elements of her

medical-negligence claim. See McDonald, 8 So. 3d at 180. Because Conner has failed to

establish a necessary element of her claim, Mid-South is entitled to summary judgment.

Accordingly, we reverse the trial court’s judgment denying Mid-South’s motion for summary

judgment upon reconsideration and render judgment here in favor of Mid-South Retina, LLC.

¶17.   REVERSED AND RENDERED.

     WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KING, J.

       KITCHENS, JUSTICE, DISSENTING:

¶18.   Because I do not agree that nurses invariably should be excluded from testifying in

Mississippi courts as expert witnesses on issues of medical causation, I respectfully dissent.

¶19.   During the course of Conner’s suit against Mid-South for medical negligence

associated with the intravenous (IV) dose of Visudyne administered to her on April 10, 2003,

Conner designated LaDonna Northington, R.N., as her expert witness. In her affidavit, Nurse

Northington attested that she was familiar with the appropriate standard of nursing care with

regard to IV placement, and with complications such as infiltrations. She also attested that,

based on her education and experience as a nurse and nursing professor, a review of Mid-

South’s medical records, and the depositions of Dr. Priester (Conner’s treating physician at

Mid-South), Bernice Conner, and Nurse Marilyn Hampton (the nurse who administered the

                                              9
Visudyne IV), she was of the opinion that Mid-South was negligent in the care provided to

Bernice Conner on or about April 10, 2003, and that such negligence was a violation of the

applicable standard of care with regard to the IV administration of Visudyne and the requisite

followup care. Nurse Northington specifically noted that Mid-South’s failure to document

the manner and method in which the IV was placed and monitored was below the applicable

standard of care and that there was no evidence the infiltration site had been bandaged to

prevent incidental exposure to sunlight. Finally, she opined to a reasonable degree of

medical probability that the enumerated negligent acts had caused or contributed to the injury

and scarring suffered by Conner.

¶20.   Following the trial court’s granting of Mid-South’s motion for summary judgment,

based on Conner’s failure to establish a prima facie case of medical malpractice, Conner filed

a motion to reconsider with an attached supplemental affidavit from Nurse Northington. In

her supplemental affidavit, Nurse Northington opined that, based on her experience as a

nurse and nursing professor, there was nothing unique or different about administering

Visudyne as opposed to other IV drugs, with the exception of the need to instruct the patient

to stay out of the sun. She further stated that “the risks of infiltration from the intravenous

administration of this drug . . . would be no different than the risk of infiltration from other

intravenous drugs, except that the results of infiltration are more caustic and the need to stay

out of sunlight [would be greater] if such an infiltration did occur.” Based on the medical

records and the depositions of both the nurse who administered the Visudyne to Conner and

Conner’s treating physician, Nurse Northington further opined that the IV administration of

Visudyne was not properly monitored and that, once the infiltration had occurred, Conner’s


                                              10
treatment providers were negligent in having failed to cover the area and protect it from

accidental exposure to sunlight. These negligent acts, according to Nurse Northington,

proximately caused or contributed to Conner’s injury.

¶21.   The trial court granted Conner’s motion to reconsider and denied Mid-South’s motion

for summary judgment. Mid-South appealed, and, for the first time on appeal, argued that

Nurse Northington was not qualified to serve as an expert based on this Court’s decision in

Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645 (Miss. 2009). The majority acknowledges

that this argument was first presented on appeal, but reasons that the rule applied

retroactively to exclude Nurse Northington’s expert opinion. Maj. Op. at ¶15.

¶22.   Vaughn held that nurses are explicitly prohibited from testifying as to medical

causation. Id. at 652. In Vaughn, I dissented, reasoning that:

       [T]he issue of whether a particular nurse, by virtue of his or her knowledge,
       skill, experience, training or education, possesses such ability is better
       determined by a case-by-case inquiry than by a broad, “one-size-fits-all”
       judicial pontification to the effect that no nurse in the world will ever be
       allowed to testify as to medical causation in any Mississippi court case. As is
       true of any other profession, the education, experience and understanding of
       nurses span a broad spectrum. We should not enunciate a hard and fast rule
       that permanently forecloses the possibility of any nurse’s being qualified to
       give expert testimony on medical causation in any and all cases that may arise
       in the future.

Id. at 656-57 (Kitchens, J., dissenting). I echo that same reasoning in the case sub judice

inasmuch as “it is the scope of the witness' knowledge and not the artificial classification by

title that should govern the threshold question of admissibility.” Brown v. Mladineo, 504 So.

2d 1201, 1202 (Miss. 1987) (quoting Fitzmaurice v. Flynn, 356 A.2d 887, 892 (Conn.

1975)). Other jurisdictions in both criminal and civil cases have agreed with the premise that



                                              11
nurses with the “proper training, expertise, and experience are qualified to give expert

opinions on medical causation in appropriate circumstances.” Velazquez v. Commonwealth

of Va., 557 S.E.2d 213, 218 (Va. 2002).3

¶23.   I find no basis in the language of Mississippi Rule of Evidence 702 “for any

preference of licensed physicians for such medical testimony.” State v. White, 457 S.E.2d

841, 858 (N.C. 1995) (holding that sexual assault nurse examiners are qualified to testify as

to the cause of a physical injury despite not being licensed to diagnose illnesses or prescribe

treatment).4 Mississippi Rule of Evidence 702 provides that:



       3
        See also Mohajer v. Commonwealth of Va., 579 S.E.2d 359, 364 (Va. App. 2003)
(finding that a sexual assault nurse examiner need not be licensed to practice medicine to
offer an expert opinion on the causation of injuries resulting from an alleged sexual assault);
Parris v. Uni Med, Inc., 861 S.W.2d 694, 699 (Mo. App. E.D. 1993) (finding no error in
trial court allowing nurses to testify as experts on the cause and treatment of bed sores);
Mellies v. Nat’l Heritage, Inc., 636 P.2d 215, 224 (Kan. App.1981) (holding that when a
proper foundation is laid as to the nurse's experience with bed sores, that nurse can “qualify
as an expert as to causation and as to such parts of treatment and cure that are performed by
such nurse.”).
       4
         Our own Court of Appeals, in a criminal case in which the defendant was convicted
of gratification of lust, rejected the defendant’s argument that expert testimony by a sexual
assault nurse examiner was erroneously admitted because it was beyond the scope of her
qualifications. See Murray v. State, 20 So. 3d 739, 741 (Miss. Ct. App. 2009), cert. denied,
27 So. 3d 404 (Miss. 2010). In doing so, the court recognized that “nursing professionals
routinely testify as to whether a victim's injuries are consistent with a sexual assault.” Id. at
742 (citing Havard v. State, 988 So. 2d 322, 332 (Miss. 2008) (nurse testified that injuries
received by minor victim were the result of sexual trauma); Adams v. State, 772 So. 2d
1010, 1017 (Miss. 2000) (nurse testified that the victim's hymen was torn and that this injury
was consistent with penetration by a penis, finger, or other object)). The appellate court held
that the expert witness was an experienced emergency room nurse, had conducted numerous
sexual assault examinations, and had personally conducted the examination of the victim;
thus “her testimony assisted the jury and was both relevant and reliable.” Murray, 20 So. 3d
at 742.
        I cite Murray, a case in which this Court unanimously voted to deny certiorari, to
illustrate that I see no distinction in how Rule 702 should be applied in a civil versus a

                                               12
       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence to determine a fact in issue, a witness qualified
       as an expert by knowledge, skill, experience, training, or education, may
       testify thereto in the form of an opinion or otherwise, 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 witness has applied the principles and
       methods reliably to the facts of the case.

In the case sub judice, it is clear that Nurse Northington met the requirements of Rule 702.

We should not prohibit our trial judges and jurors from hearing and considering professional

opinions of this quality.

¶24.   Mississippi Rule of Civil Procedure 56(c) provides that summary judgment is proper

“if 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 a judgment as a matter of law.” In order to withstand summary

judgment, the party opposing the motion “may not rest upon the mere allegations or denials

of his pleadings, but his response . . . must set forth specific facts showing that there is a

genuine issue for trial.” Whiting v. Univ. of S. Miss., 62 So. 3d 907, 914 (Miss. 2011)

(quoting Miss. R. Civ. P. 56(e)).

¶25.   Nurse Northington’s expert opinion was that Conner’s injury was proximately caused

by Mid-South’s breach of the applicable standard of care owed to Conner in the IV

administration of Visudyne. Because this expert should not be excluded on the necessary



criminal case. Vaughn has the effect of precluding nurses from testifying as to medical
causation even in the context of a criminal sexual assault case. See Vaughn, 20 So. 3d at 652
(“We now explicitly hold that nurses cannot testify as to medical causation.”).




                                              13
element of causation, I am of the opinion that Conner did not fail to establish a prima facie

case of medical negligence. In this case, sufficient evidence exists to create genuine issues

of material fact as to whether Nurse Hampton, the nurse who had administered Visudyne to

Conner at Mid-South, had breached the appropriate standard of nursing care and whether

such breach proximately caused Conner’s injury. Accordingly, summary judgment was not

appropriate in this case. Thus, I would affirm the trial court’s judgment denying Mid-South’s

motion for summary judgment.

       KING, J., JOINS THIS OPINION.




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