                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-CA-00252-SCT

CHARLEAN TROUPE

v.


JAMES McAULEY, M.D., NORTH MISSISSIPPI
MEDICAL CENTER, INC., NORTH MISSISSIPPI
H EALTH SERVICES, INC ., AN D N OR TH
MISSISSIPPI SURGICAL CENTER, INC.


DATE OF JUDGMENT:                           01/23/2006
TRIAL JUDGE:                                HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                  LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    JAMES H. ARNOLD
                                            JOHNNIE E. WALLS, JR.
                                            JIM DAVIS HULL
ATTORNEYS FOR APPELLEES:                    JANELLE MARIE LOWREY
                                            ROBERT K. UPCHURCH
                                            JOHN G. WHEELER
                                            WILLIAM DANIEL PRESTAGE
NATURE OF THE CASE:                         CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                AFFIRMED - 05/10/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    From the trial court’s refusal to accept the plaintiff’s expert medical witness, grant of

a directed verdict against the plaintiff, and entry of a final judgment in favor of the medical

providers in this medical malpractice case, the plaintiff , Charlean Troupe (Bradley), appeals
to us. Finding no reversible error, we affirm the final judgment entered by the Lee County

Circuit Court.

                  FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    Charlean Troupe Bradley (Troupe)1 was referred to Dr. James McAuley, a neuro-

otolaryngologist,2 by Dr. Harold Hudson, who was Dr. McAuley’s partner. The referral to

Dr. McAuley was for the purpose of reviewing what Dr. Hudson suspected was a glomus

tympanicum, or a benign tumor, in Troupe’s left middle ear. Dr. Hudson had performed a

physical examination of Troupe and had ordered a Computerized Tomography Scan (CT

Scan). Dr. McAuley then conducted a physical examination of Troupe’s ear and ordered

Magnetic Resonance Imaging (MRI) to be done. Based upon the information provided by

the CT scan and MRI, Dr. McAuley concluded that Troupe did indeed have a glomus

tympanicum and scheduled surgery.3

¶3.    On March 1, 2001, Dr. McAuley performed surgery on Troupe’s middle ear at North

Mississippi Medical Center (NMMC) in Tupelo.4 During the surgery, Dr. McAuley made


       1
           Troupe’s last name at the time of trial was Bradley.
       2
       A neuro-otolaryngologist is a physician who has completed a five-year minimum
residency training program in otolaryngology (ear, nose, and throat surgery) followed by
advanced fellowship training in otology/neuro-otology. A neuro-otolaryngologist quite
often will restrict his or her practice to problems relating to the ear.
       3
        The CT Scan and the MRI showed the anatomy of Troupe’s ear to be in a normal
position. Dr. McAuley saw what he believed to be a tumor while looking into Troupe’s ear
during the physical examination.
       4
       Troupe’s surgery was conducted in NMMC’s surgery unit, North Mississippi
Surgical Unit, Inc.

                                                2
contact with what he thought was a tumor. Instead, what was thought to be a tumor turned

out to be a doubly anomalous carotid artery,5 which he could not see on the CT scan and MRI

that had been conducted. The artery tore, and because Dr. McAuley could not seal it with

stitches, he used surgical packing to control the bleeding.

¶4.    Immediately after surgery, Dr. Robert Becker (Dr. Becker), NMMC’s interventional

radiologist, then performed another CT Scan and an arteriogram on Troupe’s ear. Dr. Becker

confirmed that Dr. McAuley did not lift a tumor, but in fact lifted Troupe’s carotid artery.

Because Dr. Becker was going to be out of town the next day, Dr. McAuley arranged for

Troupe to be transferred to the University of Alabama Hospital in Birmingham, Alabama

(UABH), for treatment, because he wanted to make sure an interventional radiologist would

be available if needed. Troupe was prescribed narcotics for pain by Dr. Ethel Beasley at

North Mississippi Health Services, Inc. (NMHS),6 prior to being transported from NMMC

to UABH.

¶5.    Upon her return home from UABH, Troupe was sent to Mississippi Methodist

Rehabilitation Center (MMRC) in Jackson for therapy. While at MMRC, Troupe developed

a movement disorder that physicians determined was not due to the injury to her artery but

was instead due to a psychological problem. The record revealed the medical opinion was




       5
        Dr. McAuley testified that he had never seen or read about a doubly anomalous
carotid artery. He further testified that, in his training, based upon his physical examination
of Troupe’s ear, “the only thing it could be is a glomus tympanicum.”
       6
           NMHS is a unit of NMMC.

                                              3
that Troupe’s “pattern of apparent abnormal movements is not compatible with any

neurologic disorder,” but instead, “improvement with distraction is a strong indication that

these are psychologically and not neurologically mediated.”

¶6.    On June 4, 2001, Troupe filed her original complaint against Dr. McAuley, NMMC,

Mississippi Methodist Rehabilitation Center Auxiliary, Inc. (MMRCA), and “John Doe

Person(s)” and “John Doe Entity(ies),” in the Circuit Court for the First Judicial District of

Hinds County. On July 6, 2001, MMRCA filed a motion to dismiss based on a failure to

state a claim and failure to sue the correct entity.7 On July 12, 2001, Dr. McAuley and

NMMC filed a joint Motion for Change of Venue, or in the Alternative, to Sever and Change

Venue. On February 14, 2002, the Hinds County Circuit Court, Judge Swan Yerger,

presiding, entered an Order Severing Claims and Transferring Venue, thereby transferring

Troupe’s severed claims against Dr. McAuley and NMMC to the Circuit Court of Lee

County.8


       7
        MMRCA’s motion states: “The hospital where Plaintiff received rehabilitation
treatment is owned and operated by The Mississippi Methodist Hospital and Rehabilitation
Center, Inc. (Exhibit “C”). Mississippi Methodist Rehabilitation Center Auxiliary, Inc. is
a separate corporation formed for the purpose of providing financial and spiritual support
to the hospital and its patients. (Exhibit “D”). Mississippi Methodist Rehabilitation Center
Auxiliary, Inc., does not own or operate the hospital to which Plaintiff was admitted on
March 15, 2001.” Troupe filed a Motion to Amend the Complaint on July 30, 2001, to
amend the name of the defendant, MMRCA, to Mississippi Methodist Rehabilitation Center,
Inc.
       8
        In Judge Yerger’s order of February 14, 2002, the Hinds County Circuit Court
retained the claims against Mississippi Methodist Rehabilitation Center Auxiliary, Inc. and
Mississippi Methodist Rehabilitation Center, Inc., and transferred the claims against Dr.
McAuley and NMMC to the Circuit Court of Lee County, which ultimately entered a final

                                              4
¶7.    In her first amended complaint filed in the Lee County Circuit Court on December 23,

2002, Troupe added as party-defendants North Mississippi Health Services, Inc. (NMHS),

North Mississippi Surgical Center, Inc. (NMSC),9 Dr. Robert Becker, and Dr. Etha S.

Beasley 10 as defendants. However, the trial judge eventually entered orders dismissing Dr.

Becker and Dr. Beasley, with prejudice.

¶8.    On September 26, 2005, NMMC, NMHS, and NMSC filed a Motion to Strike

Plaintiff’s Designation of Expert Witnesses. This motion, asserted, inter alia, that Troupe’s

“formal designation of trial experts, dated September 6, 2005, was submitted less than the

sixty (60) days required by Rule 4.04 of the Uniform Circuit and County Rules,” inasmuch

as the trial was scheduled to begin on October 31, 2005. On September 28, 2005, Dr.

McAuley filed a Joinder of the Defendant, James McAuley, M.D., in Motion of North

Mississippi Medical Center, Inc., et al., to Strike Plaintiff’s Designation of Expert Witnesses.

We find nothing in the record concerning the trial court’s disposition of these motions.

¶9.    On October 31, 2005, and November 1, 2005, a jury trial was conducted in the Circuit

Court of Lee County, Judge Thomas J. Gardner, III, presiding. Troupe commenced her




judgment on the claims asserted against Dr. McAuley, NMMC, and the other defendants
added after the transfer to Lee County. Thus, Mississippi Methodist Rehabilitation Center
Auxiliary, Inc., and Mississippi Methodist Rehabilitation Center, Inc., are not parties to this
appeal.
       9
        Because NMHS and NMSC are units of NMMC and were defended at trial as one
entity by the same attorney, we will refer to these defendants collectively as NMMC.
       10
            Dr. Beasley’s first name is actually Ethel.

                                                 5
presentation of the evidence by calling Dr. McAuley as an adverse witness. Troupe then

called Dr. Charles E. Rawlings to the witness stand in an effort to qualify him as an expert

witness in the field of neurosurgery as opposed to otolaryngology or neuro-otolaryngology.

¶10.   During his voir dire of Dr. Rawlings in an effort to qualify him as an expert, Troupe’s

attorney elicited from Dr. Rawlings before the jury, inter alia, that he was a physician,

neurosurgeon and attorney; that he was board certified in neurosurgery, current on his

continuing medical education, but he was not currently practicing neurosurgery; that he had

a law degree from Wake Forest University; and that, as to Troupe’s litigation, he had

reviewed her medical records from NMMC and UABH. Troupe’s attorney then asked Dr.

Rawlings, “[b]ased upon your review of [Troupe’s] records, medical records and your

opinion to a reasonable degree of medical certainty, tell the jury what happened to [Troupe].”

At this point, the attorneys for Dr. McAuley and NMMC objected, and Troupe’s counsel then

asked Judge Gardner to accept Dr. Rawlings as an expert in the specialty of neurosurgery

rather than otolaryngology or neuro-otolaryngology. Judge Gardner put the jury in recess,

and outside the presence of the jury, Troupe’s counsel argued that Dr. Rawlings’s testimony

was acceptable because Dr. Rawlings had training in surgery, and because the doctor who

treated Troupe at UABH was a neurologist. Outside the presence of the jury, Judge Gardner

allowed Troupe’s counsel to continue to attempt to qualify Dr. Rawlings as an expert in

neuro-otolaryngology, and the following questioning occurred:

       Q.     Dr. Rawlings, are you trained in surgery in the head area?
       A.     Yes.


                                              6
Q.     Is it sometimes commonly referred to a neurosurgeon as a brain surgery
       (sic)?
A.     It is.
Q.     Okay. And are you competent to do any type of surgery involving the
       area of the brain and the internal organs of the head?
A.     Neurosurgery is that part of the surgery that does procedures upon the
       head, the scalp, the skull, the covering of the brain, the brain and the
       arteries that lead to the brain.
Q.     Okay. Would you be familiar with the left internal carotid artery?
A.     I would be.
Q.     And the other arteries communicating or surrounding, receiving blood
       off of that main artery and all of the vessels of the head, including those
       in and around the ear?
A.     Yes, sir.

....

Q.   Doctor, you read the records, medical records concerning Charlean.
     Have you had experience, direct experience with things, cases
     involving the carotid artery and the matters concerning the vascular
     system about which we're here today in the case of Charlean Troupe
     Bradley?
A.   Yes. I mean the neurosurgeons operate upon the carotid artery, and the
     case today is primarily about biopsying a normal carotid artery.
Q.   How many such cases have you performed or been involved in
     involving the carotid artery and the items that would relate to the case
     that we're here about today?
A.   It would be hard to put a number on them, but doing carotid
     endarterectomies and also clipping aneurisms you're dealing with the
     carotid artery yourself.
Q.   Could you tell the Court what percentage of your practice dealt with
     that type surgery?
A.   Intracranial procedures were about 30 to 40 percent.
[PLAINTIFF’S COUNSEL]:
             May it please the Court, based upon Doctor
             Rawlings' testimony regarding his experience and
             training, we again offer him as an expert in this
             case.




                                        7
¶11.   In refusing to accept Dr. Rawlings as an expert in neuro-otolaryngology where he was

tendered as an expert in neurosurgery, Judge Gardner stated, inter alia:

       The Court is of the opinion that the burden imposed on the Plaintiff in this
       case is to establish as to the defendant doctor in his particular field of specialty
       a standard of care which he owed to the Plaintiff in this case and to
       demonstrate – and that standard of care is because of where he is in the
       discipline that he is trained in. It's not a general practitioner's standard, it's
       higher than that, and the voir dire or qualification, the attempt to qualify this
       witness doesn't even touch on that.

       Further, there must be some showing of some violation of that standard of care
       imposed on the doctor within the specialty that he pursues and that that in
       some way resulted in the damages or injuries sustained by the Plaintiff.

       To say that a neurosurgeon knows intuitively what the standard of care is as
       to Dr. McAuley or in any other discipline within the practice of medicine
       presupposes a whole lot of information that's not made clear here by his
       qualification and voir dire or your questions directed to him. And as to the
       requirement that the Defendants participate in qualifying him by voir dire
       examination, I think that's ludicrous.[11 ] They're certainly within their right to
       stand on the qualifications tendered and to not expand on that inadvertently or
       giving any further opportunity if they elect to do that.

       The opinion of the Court is that this witness is not competent to testify against
       Dr. McAuley in this case simply because he has not established by virtue of
       training or otherwise that he knows the standard of care, that he's familiar with
       that and can testify about how, if any, in any way that standard was breached
       and the causal connection.

       Now, the matters having to do with neurosurgery, I don't have any question but
       that he is a competent witness. If you're going to question him concerning
       causation, violation of the standard or the standard itself, I think he is not
       qualified to testify about that.


       11
         Troupe’s attorney had argued to Judge Gardner that the attorneys for Dr. McAuley
and NMMC, as a prerequisite to arguing that Dr. Rawlings was not qualified to testify as an
expert, should have conducted voir dire of Dr. Rawlings upon his being tendered as an
expert.

                                                8
       Now, if you wish to make a record, you may do so by proffer or by asking him
       questions.

¶12.   Accepting this invitation from the trial judge, Troupe’s attorney continued his

questioning of Dr. Rawlings (again, outside the presence of the jury), in order to make his

proffer for the record. During this proffer, Dr. Rawlings testified, to a reasonable degree of

medical certainty, inter alia: that when Troupe presented to Dr. McAuley, she complained

of dizziness and decreased hearing in her left ear; that the CT scan and MRI performed under

the supervision of Dr. Hudson or Dr. McAuley were normal; that Dr. McAuley eventually

discovered a mass behind Troupe’s left eardrum, which he believed to be a benign vascular

tumor; that based on this diagnosis, Dr. McAuley performed surgery, resulting in the tearing

which damaged Troupe’s left internal carotid artery, necessitating an occlusion of the left

carotid artery; that during her hospitalization, Troupe had several episodes of hypotension

resulting in a tremor disorder; that there was a breach of the standard of care in the

inappropriate administration of morphine at NMMC prior to Troupe’s transportation from

NMMC to UABH; that the resulting hypoxia “more than likely damaged or at least

physiologically changed, damaged her deep brain structures that subserve movement, in other

words, coordination;” that Dr. McAuley specifically breached the standard of care to which

Troupe was entitled “[b]y not ruling out the presence of an aberrant internal carotid artery

and by upon the surgery lacerating or biopsying or tearing the aberrant internal carotid

artery;” that Dr. McAuley breached the standard of care by not ruling out the presence of an

aneurism or an aberrant artery upon his discovery of the reddish-bluish mass behind Troupe’s


                                              9
left eardrum; and, that Troupe’s ultimate injury caused by Dr. McAuley’s breach of the

standard of care resulted in Troupe’s movement disorder. The following colloquy then

occurred between Troupe’s counsel and Dr. Rawlings:

       Q.     Doctor, as a neurosurgeon would you be familiar with the damages to
              her deep brain structures? Is that a part of your training?
       A.     It is.
       Q.     Okay. Doctor, to a reasonable degree of medical certainty can hypoxia
              cause various types of movement disorders?
       A.     It can.
       Q.     And Doctor, based upon your medical knowledge and training to a
              reasonable degree of medical certainty can hypoxia cause progressively
              deteriorating movement disorders?
       A.     It could, yes.
       Q.     Okay. And would that explain why Mrs. Troupe had episodes of some
              clarity in her movement disorder after taking Mysoline and then
              ultimately the condition progressing to a point where Mysoline by itself
              would not alleviate her condition?
       A.     It's one possibility, yes.
       Q.     Okay. Doctor, are you saying to a reasonable degree of medical
              certainty that Dr. McAuley and the North Mississippi Medical Center
              violated the standard of medical care that was due Mrs. Troupe in her
              treatment?
       A.     In my opinion, yes.

¶13.   Upon Dr. Rawlings being tendered by Troupe’s attorney, the attorneys for Dr.

McAuley and NMMC conducted their voir dire of Dr. Rawlings for the record. During

defense counsels’ voir dire, it was revealed: that Dr. Rawlings last performed surgery in

December, 1999; that in March, 2001, when Troupe presented to Dr. McAuley, Dr.

Rawlings, a neuro-surgeon, was a full-time law student, and as of July, 2001, he had

relinquished all staff privileges at hospitals; that in 2002, Dr. Rawlings graduated from law

school and was admitted to practice law in North Carolina, where he specialized in medical


                                             10
negligence cases; that Dr. Rawlings had never pursued an otolaryngology residency or

fellowship; that Dr. Rawlings was aware that Dr. McAuley had a fellowship in neuro-

otolaryngology; and, that while on the medical staff at Forsyth Hospital in Winston-Salem,

North Carolina, Dr. Rawlings never had privileges to perform middle ear surgery, because

such privileges were reserved for physicians who specialized in otolaryngology.

¶14.   Finally, upon further questioning by Troupe’s attorney, Dr. Rawlings testified as

follows:

       Q.     Doctor, to a reasonable degree of medical certainty is it ever
              appropriate for a physician doing the type operation that Dr. McAuley
              or any other physician was doing or purported to do in his records to
              cut the carotid artery?
       A.     No.
       Q.     Is that always a breach of the standard of care?
       A.     It is.

       ....

       Q.    Doctor, would it be possible for a neurosurgeon to give an opinion as
             to the laceration of a carotid artery?
       [Objection by opposing counsel.]
       Q.    Regardless of whether or not it was done by an ENT specialist or
             perhaps even a doctor with your specialty?
       [Objection overruled.]
       A.    Yes.

¶15.   Again, Judge Gardner refused to declare Dr. Rawlings as an expert to offer opinions

before the jury as to Dr. McAuley’s alleged breach of the standard of care owed to Troupe,




                                           11
whereupon the attorney for Troupe then requested Judge Gardner to certify this issue to this

Court via an interlocutory appeal, and Judge Gardner denied this request.12

¶16.   Upon Judge Gardner’s disallowance of Dr. Rawlings’s testimony, Troupe’s counsel

rested the plaintiff’s case-in-chief. The attorneys for Dr. McAuley and NMMC then moved

for a directed verdict, which Judge Gardner granted. Consistent with the grant of a directed

verdict, Judge Gardner subsequently entered a final judgment in favor of Dr. McAuley and

NMMC on November 10, 2005. On November 14, 2005, Troupe filed a motion requesting

the trial court to reconsider its ruling prohibiting Dr. Rawlings to testify as an expert witness

pursuant to Miss. R. Evid. 702, and also requesting a new trial. Judge Gardner denied these

post-trial motions by order entered on January 23, 2006. Troupe timely filed her notice of

appeal on February 6, 2006.

                                        DISCUSSION

¶17.   There is but one critical issue for this Court to decide today. Charlean Troupe phrases

the issue as follows: “The trial court erred in refusing to accept Dr. Rawlings as an expert on

the standard of care on the basis that a neurosurgeon can not testify as to the standard of care

owed by a neuro-otolaryngologist.” NMMC asserts that “[t]he trial court herein acted well

within its discretion in excluding the opinion testimony of Ms. Troupe’s tendered expert,


       12
          Effective December 9, 2004, as to trial court orders entered from and after March
1, 2005, the provisions of Miss. R. App. P. 5(a) and 5(b) were amended to eliminate the
requirement of seeking trial court certification of an interlocutory appeal to this Court. Since
the trial of today’s case occurred on October 31 and November 1, 2005, Troupe was not
required to seek trial court certification of an interlocutory appeal to this Court. In any event,
Troupe never sought relief from this Court via an interlocutory appeal.

                                               12
Charles E. Rawlings, M.D., after finding that Dr. Rawlings failed to demonstrate education,

training, or experience in the medical specialty of the health care provider defendants or

knowledge of the applicable standards of care.” Finally, Dr. McAuley presents to us that the

trial court appropriately found that Dr. Rawlings was as a matter of law incapable, as “a

neurosurgeon and lawyer,” of offering an expert opinion as to the proper standard of care

applicable to a neuro-otolaryngologist, and that the trial court (1) properly excluded the

testimony of Dr. Rawlings, and thus correctly granted a directed verdict in favor of Dr.

McAuley; and (2) properly refused to accept Dr. Rawlings as an expert, but that this refusal

on the part of the trial court “was not based upon [Dr. Rawlings] being a neurosurgeon, but

was based upon Dr. Rawlings not knowing the standard of care applicable to Dr. McAuley.”

¶18.   We thus rephrase the sole issue before us for clarity in discussion.

       WHETHER THE TRIAL COURT ERRED IN REFUSING TO ACCEPT
       DR. RAWLINGS, TENDERED AS AN EXPERT IN NEUROSURGERY,
       TO TESTIFY AS TO THE STANDARD OF CARE OWED BY A
       NEURO-OTOLARYNGOLOGIST.

¶19.   “The standard of review for the admission or suppression of evidence in Mississippi

is abuse of discretion.” Poole v. Avara, 908 So. 2d 716, 721 (Miss. 2005) (citing Miss.

Trans. Comm’n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003)). “The trial judge has the

sound discretion to admit or refuse expert testimony; an abuse of discretion standard means

the judge’s decision will stand unless the discretion he used is found to be arbitrary and

clearly erroneous.” Id. When considering a trial court’s grant of a directed verdict, this

Court’s standard of review is de novo. White v. Stewman, 932 So. 2d 27, 32 (Miss. 2006).


                                             13
¶20.   Troupe argues that the trial court refused to accept Dr. Rawlings as an expert witness

simply because he was a neurosurgeon rather than an otolaryngologist or neuro-

otolaryngologist. However, Dr. McAuley and NMMC argue that the trial court correctly

refused to accept Dr. Rawlings as an expert witness because he lacked the requisite

knowledge to testify as to the standard of care owed by a neuro-otolaryngologist where he

was tendered only as an expert in neurosurgery.

¶21.   Miss. R. Evid. 702 (amended 2003) states:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or 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 on 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.

¶22.   This Court recently had an occasion to once again address the issue of expert witness

testimony in a medical malpractice setting. In Cheeks v. Bio-Medical Applications, Inc.,

908 So. 2d 117 (Miss. 2005), this Court stated:

       To present a prima facie case of medical malpractice, a plaintiff, (1) after
       establishing the doctor-patient relationship and its attendant duty, is generally
       required to present expert testimony (2) identifying and articulating the
       requisite standard of care; and (3) establishing that the defendant physician
       failed to conform to the standard of care. In addition, (4) the plaintiff must
       prove the physician’s noncompliance with the standard of care caused the
       plaintiff’s injury, as well as proving (5) the extent of the plaintiff’s damages.
       McCaffrey v. Puckett, 784 So. 2d 197, 206 (Miss. 2001) (citing Ladner v.
       Campbell, 515 So. 2d 882, 887-88 (Miss. 1987)). A physician who is
       sufficiently “familiar with the standards of [a medical] specialty, [may testify
       as an expert, even] though he [does] not practice the specialty himself.” West
       v. Sanders Clinic for Women, P.A., 661 So. 2d 714, 718-19 (Miss. 1995). “It
       is our general rule that in a medical malpractice action negligence cannot be

                                              14
       established without medical testimony that the defendant failed to use ordinary
       skill and care.” Brooks v. Roberts, 882 So. 2d 229, 232 (Miss. 2004) (citing
       Sheffield v. Goodwin, 740 So. 2d 854, 858 (Miss. 1999)).

Id. at 120. Thus, this Court makes it clear that there is no per se rule that Dr. Rawlings had

to be a neuro-otolaryngologist in order to be qualified to testify as an expert in the case sub

judice. However, Dr. Rawlings had to demonstrate that he was sufficiently “familiar with

the standards of” neuro-otolaryngology by knowledge, skill, experience, training, or

education in accordance with Miss. R. Evid. 702.

¶23.   Therefore, it is crucial to understand the factual basis for this Court’s decision in

Cheeks, involving a medical negligence claim due to the death of a dialysis patient who

suffered severe hemorrhaging at the site where a shunt for dialysis had been implanted. We

quote here from Cheeks:

       In order to testify, Dr. Myers, a family physician, must have been familiar with
       the standard of care to which a dialysis clinic, a nephrologist and a radiologist
       are held. McCaffrey, 784 So. 2d at 203. Dr. Myers was not board certified in
       family practice or any other specialty; was not a member of the American
       Medical Association; was not on staff at any hospital and could not admit
       patients to any hospital; had no special training or experience in the field of
       nephrology; had never been inside a dialysis clinic in Mississippi; had never
       participated in a dialysis procedure; had never operated a dialysis machine; had
       never monitored a patient while he was receiving the actual dialysis treatment;
       relied on the expertise of a nephrologist when determining whether one of his
       patients was receiving the appropriate type of dialysis treatment or responding
       to the treatment as he should; had never inserted a gortex graft; had never seen
       a graft inserted into a patient; had never inserted a dialysis needle into a graft;
       had never inspected a graft which was implanted in a patient; had never
       recommended that a graft be replaced; was, by his own admission, not
       qualified to render opinions as to when or whether a graft should be replaced,
       because these medical opinions fall within a specialized area in which he had
       no experience or training; had never read any literature on the specific type of
       graft at issue; and did not know who manufactured the graft in question or the

                                               15
       manufacturer's recommendation as to the life of the graft. Dr. Myers further
       admitted that it was the job of a radiologist to determine whether a particular
       graft is functioning properly; that a radiologist inspected Henry's graft
       approximately 30 days prior to Henry's death and found it to be operating
       properly; and that he (Dr. Myers) could find nothing wrong with that
       radiologist's report.

Id.

¶24.   Similarly, Dr. Rawlings was not qualified to testify against Dr. McAuley. Dr.

Rawlings was not board certified in otolaryngology or neuro-otolaryngology; he was board

certified in neurosurgery. He last performed surgery in December 1999. At the time of

Troupe’s surgery, Dr. Rawlings was not actively practicing medicine. Dr. Rawlings had no

special training or experience in the field of otolaryngology or neuro-otolaryngology. He had

never conducted middle ear surgery, had never had privileges at any hospital to conduct

middle ear surgery, and was not qualified to conduct middle ear surgery. Dr. Rawlings did

not hold himself out to be an expert in otolaryngology or neuro-otolaryngology. His

curriculum vitae did not demonstrate any articles that he had written nor any presentations

that he had given regarding otolaryngology or neuro-otolaryngology. Furthermore, Troupe

tendered Dr. Rawlings as an expert in neurosurgery. Troupe’s counsel repeatedly asked Dr.

Rawlings about his qualifications concerning the carotid artery. Dr. McAuley was not

conducting surgery on Troupe’s carotid artery; he was conducting surgery on Troupe’s left

middle ear, as Dr. Rawlings admitted. Dr. Rawlings readily admitted that he had never

performed middle ear surgery, because he never had privileges to perform middle ear

surgery.


                                             16
¶25.   We have consistently stated that when considering Miss. R. Evid. 702 issues, our trial

judges are placed in the role of gatekeepers, “ensuring that expert testimony is both relevant

and reliable.” Poole, 908 So. 2d at 723 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,

147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238, 249 (1999)). See Miss. Transp. Comm’n v.

McLemore, 863 So. 2d 31, 35 (Miss. 2003), wherein this Court adopted the rule laid down

in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993).13 In Poole, we likewise reiterated that “[t]he rule is that the expert must

exercise the same level of intellectual rigor that characterizes the practice of an expert in the

relevant field.” 908 So. 2d at 724 (citing McLemore, 863 So. 2d at 37-38).

¶26.   With this in mind, and in remembering the proffer which was before the trial judge

when he refused to accept Dr. Rawlings (a neurologist who had never performed middle ear

surgery), as an expert to offer an opinion on the appropriate standard of care which Dr.

McAuley (a neuro-otolaryngologist performing middle ear surgery) owed to his patient,

Charlean Troupe, we are unquestionably compelled to find as a matter of well-established

law that the trial judge did not abuse his discretion in excluding this opinion testimony on the

part of Dr. Rawlings.

¶27.   The practical effect of Judge Gardner’s ruling as to Dr. Rawlings was that Troupe was

undeniably left with the inability to meet her burden of proof in this medical negligence case.



       13
        Thus, in McLemore, this Court abandoned and “rejected” the standard laid down
in Frye v. United States, 293 F. 1013, 1014 (D.C. Circ. 1923). McLemore, 863 So. 2d at
42-43.

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Again, “`[i]t is our general rule that in a medical malpractice action negligence cannot be

established without medical testimony that the defendant failed to use ordinary skill and

care.’ Brooks v. Roberts, 882 So. 2d 229, 232 (Miss. 2004) (citing Sheffield v. Goodwin, 740

So. 2d 854, 858 (Miss. 1999)).” Cheeks, 908 So. 2d at 120. Without expert medical

testimony, Troupe was unable to carry her required burden of proof in this medical

malpractice case.

¶28.   We recently once again discussed our solemn responsibility in reviewing a trial

judge’s grant or denial of a motion for a directed verdict. In conducting such a review, we

“must decide whether the facts presented, together with any reasonable inferences,

considered in the light most favorable to the nonmoving party, point so overwhelmingly in

favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.”

Robley v. Blue Cross/Blue Shield, 935 So. 2d 990, 996 (Miss. 2006) (citing Drennan v.

Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996)). Therefore, in applying a de novo standard

of review as to the trial judge’s grant of a directed verdict in favor of Dr. McAuley and

NMMC, we find that the trial judge did not err in directing a verdict in favor of these

defendants. Clearly, without the testimony of Dr. Rawlings, when considering all the

evidence offered during the plaintiff’s case-in-chief, as well as all reasonable inferences

which could be drawn from the evidence, all in the light most favorable to the plaintiff, the

plaintiff was unable to make out a prima facie case sufficient to require the defendants to go

forward with their proof.



                                              18
¶29.     Consistent with our discussion of this issue, we reach the inescapable conclusion that

this issue is without merit.

                                       CONCLUSION

¶30.     Serving as the gatekeeper of Rule 702 opinion testimony, the trial judge did not abuse

his discretion in disallowing the plaintiff’s proffered testimony of Dr. Rawlings as to the

appropriate standard of care which Dr. McAuley owed to his patient, Charlean Troupe. It

necessarily follows that, consistent with our case law, the trial judge likewise did not err in

granting a directed verdict in favor of the defendants at the close of the plaintiff’s case-in-

chief.

¶31.     Consistent with the directed verdict, the trial court subsequently entered a final

judgment dismissing the plaintiff’s claims against the defendants. For the reasons stated, the

Lee County Circuit Court’s final judgment in favor of Dr. James McAuley, North Mississippi

Medical Center, Inc., North Mississippi Health Services, Inc. and North Mississippi Surgical

Center, Inc., and against Charlean Troupe, is affirmed.

¶32.     AFFIRMED.

    SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, P.J., AND GRAVES, J., DISSENT WITHOUT SEPARATE
WRITTEN OPINION.




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