                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CA-02001-SCT



LINDA RICHARDSON,

INDIVIDUALLY AND ON BEHALF

OF THE WRONGFUL DEATH HEIRS

OF VIVIAN WHEELESS, DECEASED
v.
METHODIST HOSPITAL OF

HATTIESBURG, INC., NOW KNOWN AS

WESLEY HEALTH CENTER

                                  ON MOTION FOR REHEARING

DATE OF JUDGMENT:                   11/04/1999
TRIAL JUDGE:                        HON. R. I. PRICHARD, III
COURT FROM WHICH                    LAMAR COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR                       J. ANDREW PHELPS
APPELLANT:
                        MARK THOMAS FINCH
ATTORNEYS FOR APPELLEE: J. ROBERT RAMSAY
                        GEORGE F. GATES
NATURE OF THE CASE:     CIVIL - WRONGFUL DEATH
DISPOSITION:            AFFIRMED IN PART AND REVERSED AND REMANDED IN
                        PART- 02/28/2002
MOTION FOR REHEARING 05/03/2001
FILED:
MANDATE ISSUED:         3/7/2002

     EN BANC.

     WALLER, JUSTICE, FOR THE COURT:

¶1. The motion for rehearing filed by Wesley Health Center is denied. The original opinions are withdrawn,
and these opinions are substituted therefor.

¶2. Linda Richardson, the daughter of Vivian Wheeless, filed a personal injury and wrongful death action
against Methodist Hospital of Hattiesburg, Inc., now known as Wesley Health Center, alleging that
Wheeless died as a result of Wesley Health Center's negligent failure to provide adequate care. Summary
judgment was granted to Wesley Health Center, from which Richardson seeks our review. Finding there is
a genuine issue of material fact concerning whether negligent nursing care caused or contributed to the
decedent's pain and suffering during her hospitalization, we reverse the summary judgment in part and
remand for a jury trial on that claim. However, we affirm the summary judgment in favor of Wesley Health
Center on the wrongful death claim because Richardson failed to present proof sufficient to causally connect
the death of Wheeless to deficient care.

                                                    FACTS

¶3. After complaining of nausea and vomiting blood, Wheeless was admitted to Wesley Health Center
where she was originally diagnosed with upper gastrointestinal hemorrhage. Wheeless had a history of poor
health, which included a stroke, delirium tremens secondary to alcohol abuse, elevated heart rate, fast
breathing, and high blood pressure. During her stay at Wesley, Wheeless suffered a second stroke and
subsequently died. The cause of Wheeless's death was recorded on the death certificate as cerebral
vascular accident (stroke) secondary to artherosclerotic vascular disease as a consequence of hypertension.
Wheeless's physicians concluded the stroke was caused by a totally blocked left carotid artery. Wheeless
was a patient at Wesley from December 5, 1996, until her death on January 8, 1997.

¶4. Richardson alleges that Wesley caused or contributed to her mother's pain, suffering, and death by
providing negligent and sub-standard nursing care. Richardson's expert was Crystal D. Keller, a Registered
Nurse and Certified Legal Nurse Consultant, who was designated to testify to the appropriate nursing
standards of care and deviations therefrom committed by the hospital staff. In her report, Keller set out in
detail areas of failure attributable to the nursing staff at Wesley, which included: failure to monitor
adequately; failure to inform physicians of significant changes in the patient's status; failure to follow
physician's orders; failure to safeguard adequately; failure to provide adequate care; failure to document
properly, accurately, and consistently; failure to assess and reassess adequately; failure to implement an
appropriate plan of care; failure to evaluate the patient appropriately; failure to use critical thinking in the
nursing process; and failure to assess adequately the patient's risk for injury. Keller's proffered testimony
cites there were noted instances during Wheeless's hospitalization where she exhibited signs of
gastrointestinal bleeding (black tarry stools), decreased laboratory values, changes in mental status and
confusion, decreased blood pressure, increased heart and respiratory rates, restlessness, and agitation, all
of which either were not reported to the physician or documented appropriately. Keller opined that the
deviations from the requisite standard of nursing care led to Wheeless's suffering and subsequent death.

                                        STANDARD OF REVIEW

¶5. This Court conducts a de novo review of summary judgment motions and, therefore, considers facts
without any deference to the trial court and applies its own interpretation of the law. Daniels v. GNB,
Inc., 629 So. 2d 595, 599 (Miss. 1993).

¶6. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there is no
genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.
M.R.C.P. 56(c). The standard of review for granting or denying summary judgment is that summary
judgment must be denied unless the moving party has shown it is entitled to judgment as a matter of law
after the trial court has reviewed all evidentiary matters in the light most favorable to the non-moving party.
This was set out by this Court in Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996), as
follows:

      The standard for reviewing the granting or the denying of summary judgment is the same standard as
      employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting
      or denying summary judgment and looks at all the evidentiary matters before it -- admissions in
      pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the
      light most favorable to the party against whom the motion has been made. If, in this view, the moving
      party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his
      favor. Otherwise, the motion should be denied.

                                               DISCUSSION

      A. Testimony as to Pain and Suffering

¶7. Richardson argues that summary judgment should not have been granted because there was a genuine
issue of fact concerning Wheeless's pain, suffering, and death, established through the expert testimony of
Keller. In support, Richardson offers Keller's education and sixteen years experience as a registered nurse
and six years work as a legal consultant. Richardson believes that Keller's expert opinion is admissible as it
is "helpful to the trier of fact," which is the relevant inquiry to be made pursuant to Mississippi Rule of
Evidence 702.

¶8. We set the standard for expert witnesses in medical malpractice cases in Hall v. Hilbun, 466 So. 2d
856 ( Miss. 1983), where we said expert opinion testimony should be allowed where the witness is
qualified and independent, and the testimony will assist the trier of fact. We find the trial court's ruling was
overly restrictive in not allowing Keller to testify concerning the appropriate standard of nursing care and the
deviations from that standard. There is sufficient proffered evidence from Keller for a jury to consider
whether the inadequate nursing care resulted in worsening Wheeless's physical pain and suffering.

¶9. Wheeless's treating physician provided further support to the deficiencies outlined by Keller. Steven
Farrell, M. D., treated Wheeless while she was hospitalized at Wesley and was deposed concerning his
treatment and observations of Wheeless. Dr. Farrell expressed concern over the standard of nursing care
that Wheeless received, stating that he believed the nurses were deficient in failing to timely notify him and
the other treating physician concerning melenic (bloody) stools that were observed after Wheeless's
admittance to the hospital. Even though Dr. Farrell did not opine that the gastrointestinal bleeding was in any
way associated with the stroke that ultimately caused Wheeless's death, he did testify that the unreported
bleeding could have negatively affected her condition. Dr. Farrell explained that the melenic stools would
indicate either continued or repeat gastrointestinal bleeding and that there were also notations in the
treatment records of low hemoglobin counts which could be indicative of significant hemorrhaging. Dr.
Farrell stated "the loss of blood contributed to angina that she had, the chest pain that she had, and reflected
poor blood flow to her heart." He went on to say that the continued bleeding could have led to heart
problems and may have led to Wheeless's confusion because of poor blood flow to the brain.

¶10. In Drummond v. Buckley, 627 So. 2d 264 (Miss. 1993), the plaintiff filed a medical malpractice
action after suffering pain and swelling in his lower back following surgery for a herniated disc. In
Drummond, the plaintiff did not have an expert witness to show proximate causation; however, we ruled
summary judgment was precluded. The facts of Drummond reflect there was a dispute over a
conversation between the physician and patient over the doctor's recommendation that the patient enter the
hospital for treatment of his back infection. We noted that Clayton v. Thompson, 475 So. 2d 439, 445
(Miss. 1985), stated "proximate cause arises when omission of a duty contributes to cause an injury."
Drummond, 627 So. 2d at 270. Here there is substantial evidence documenting deficient nursing care that
may have contributed to Wheeless's suffering.

¶11. The fact that Keller is not a physician does not bar her right to testify concerning the standard of care
for the nursing staff, but more appropriately may affect the weight of her testimony, which is an issue for the
trier of fact. Considering all of the evidence in the light most favorable to Richardson, we find there is a
genuine issue of fact concerning whether Wheeless suffered more physically and incurred more expense
from the failures of the nursing staff documented by Wheeless's expert and that the circuit court improperly
granted summary judgment as to pain and suffering.

¶12. Wesley argues that the claim for the pain and suffering as an element of the wrongful death action
should likewise be denied pursuant to Wilks v. American Tobacco Co., 680 So. 2d 839 (Miss. 1996).
In Wilks, the jury found that cigarette smoking did not proximately cause the decedent's death. The heirs
contended on appeal they were at least entitled to the decedent's lifetime damages that the heirs believed
were overwhelmingly proven to be caused by cigarette smoking. The heirs' cause of action was exclusively
under Mississippi's wrongful death statute. We held the personal injury action could not be maintained
where it was not alternatively claimed under Mississippi's survival statute. Id. at 843.

¶13. The facts in Richardson's case reflect that the nurses' negligent actions exacerbated Wheeless's
condition and caused pain and suffering, even if that negligence was not determined to be the ultimate cause
of death. Though the survival statute is not specifically cited in the complaint, the pleadings in this case
delineate two specific causes of action and are sufficient under our system of notice pleadings. We hold that
Richardson demonstrated a genuine issue of material fact requiring a trial on her separate cause of action for
Wheeless's pain and suffering. Therefore, the circuit court erred in granting summary judgment as to that
claim.

      B. Testimony as to the Cause of Death

¶14. While Keller is qualified to testify concerning deviations in nursing care and resultant pain and suffering,
she is not qualified to testify concerning the causal nexus between these deviations and Wheeless's death.

¶15. Richardson has cited other cases involving personal injuries where medical testimony was not required
for proof of causation, including our decision in Sonford Prods. Corp. v. Freels, 495 So. 2d 468 (Miss.
1986), overruled on other grounds, Bickham v. Department of Mental Health, 592 So. 2d 96, 98
(Miss. 1991). In Sonford, we held that a toxicologist should have been able to render expert testimony that
prolonged exposure to toxic chemicals caused injury and death to a workers' compensation claimant. We
further held that there need not be expert testimony from a medical doctor to establish causation. 495 So.
2d at 474.

¶16. While we do not require expert testimony by a medical doctor in order to establish the cause of death,
the plaintiff must show that there is causation in fact. Trapp v. Cayson, 471 So. 2d 375, 383 (Miss. 1985).
It is not enough to show that there were deviations from the requisite standard of care for nursing. Here,
Richardson has failed to make a required showing that the nurses' negligent failure to abide by the standard
of care in fact caused or contributed to Wheeless's death.
¶17. The cause of a stroke or, in Wheeless's case, a second stroke, is a complex medical issue. Wheeless's
doctors discussed the cause of death in detail, and none were supportive of Richardson's theory of wrongful
death.

¶18. The trial court ruled that Richardson's designated expert witness, Keller, was not "qualified by
education or experience to render relevant testimony with regard to the mechanism of Ms. Wheeless's
death and/or causal connection between these alleged deviations and Ms. Wheeless's multiple severe
medical problems," and therefore "would not be allowed to render medical opinions as to the multiple
medical diseases and/or conditions suffered by the Plaintiff during this lengthy hospitalization at Wesley or
the cause of these conditions and/or the cause of her death."

¶19. We agree with the circuit court that Keller lacks the requisite education and experience as an expert to
testify concerning the causal link between Wheeless's death and the alleged deviations in nursing care and
further that her proffered testimony does not specify such a link. Therefore, the circuit court did not err in
granting summary judgment for Wesley on the charge of causing her wrongful death.

                                               CONCLUSION

¶20. The trial court erred in granting summary judgment to Wesley on Richardson's claim for Wheeless's
pain and suffering. We therefore reverse the judgment below in part and remand to the Circuit Court of
Lamar County for a jury trial on the claim for Wheeless's pain and suffering. In all other respects, we affirm
the judgment below.

¶21. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

      PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. McRAE, P.J.,
      CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
      OPINION JOINED BY DIAZ, EASLEY AND GRAVES, JJ.

      McRAE, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN
      PART:

¶22. The majority is "splitting hairs" in reversing the summary judgment for Wesley on the claim for
Wheeless's pain and suffering and any extra damages that may have occurred for the pain and suffering but
upholding the judgment on the wrongful death claim. I agree that this case should be sent back for trial, but I
would send it back for trial, not only for pain and suffering, but also for the wrongful death as there is ample
evidence and opinions to support the denial of summary judgment and for trial and to allow a trial to occur
and let the trier of fact determine the credibility of the expert. The majority has concluded that Keller was
qualified to testify concerning deviations in nursing care and resulting pain and suffering, but it refuses to
allow her to testify as to causal nexus between deviation and Wheeless's death. This is a "splitting of hairs"
when one is allowed to testify and she has expert qualification, enough to testify as to pain and suffering, but
not go the one step forward, that leads to death. More importantly, there are additional matters that are
sufficient enough to allow this case to go to trial that will be later discussed.

¶23. The record before us reveals evidence that Vivian Wheeless was allowed to continue bleeding
internally due to negligent nursing care. This bleeding caused the low blood count that is associated with
high output congestive heart failure, of which she suffered, and further restricted the already severely limited
blood flow to her brain. Because there exists evidence sufficient to support a finding that the negligent
nursing care contributed to her suffering and probably her death, I would reverse the grant of summary
judgment and remand this case for a jury to determine the credibility of the expert and the cause of the
stroke. Accordingly, I concur in part and dissent in part.

¶24. Nurses are trained to be the eyes of the doctor and to monitor the patient's condition or changes for
the doctor while he or she is not there. Nurses are trained to recognize symptoms and injuries. They are
also trained as to the reason why they have to specifically recognize these symptoms, illnesses, and injuries.
Their training also consists of what happens when the symptoms are not recognized. Thus, they should be
allowed to state an opinion of causation, and the jury can decide the weight of their testimony. The witness,
Crystal Keller, has been a registered nurse since 1986 in Louisiana, and since 1987 in Virginia. Her
application for registered nurse status in Mississippi was pending at the time this appeal was taken. She was
employed as a nurse by various hospitals from 1986 through 1997. From 1993 to present, Keller served as
director of Medical-Legal Consulting Services, an organization she founded to provide expert nursing
opinions in expectation of litigation. These qualifications are hardly "meager," as the hospital contends.

¶25. In her report, Keller stated that "[t]he nurses failed to recognize signs and symptoms associated with a
GI bleed and decreased laboratory values which affect the cardiovascular system and alter the mental
status." She concluded that the failure of the nurses to notify the doctors of these symptoms, along with
other deviations from the nursing standard of care, ultimately led to Wheeless's death.

¶26. In Hooten v. State, 492 So.2d 948 (Miss. 1986), we held that the trial court abused its discretion in
failing to qualify a handwriting witness as an expert. The witness's formal education consisted entirely of
correspondence courses taken through the International Graph-Analysis Society Institute of Chicago, where
she completed an eighteen-month course of twenty lessons in less than a year. After voir dire, the judge
determined that she lacked the educational background to qualify as an expert. Id.

¶27. We reversed, holding that her fifteen years of experience and testimony in 300 trials "places her clearly
within the ambit of our rules regarding experts." Id. "We emphasize that in situations such as this, attacks on
the expert's qualifications and methods are better directed toward the weight of the testimony than its
admissibility." Id. (citing Henry v. State, 484 So.2d 1012 (Miss. 1986) (emphasis added)).

¶28. Nurses are not laypersons. They are trained to recognize symptoms and injuries that are life-
threatening. They are trained to monitor patients and notify doctors of any adverse changes in their
condition. The college that Keller attended and the conclusions that she reached in her report should be
challenged on cross-examination, and the weight to be given her testimony should be determined by a jury,
rather than dismissed on summary judgment.

¶29. Based on our holding in Hooten, Keller should be allowed to testify in light of her training and more
than 16 years of experience as a registered nurse including six years of experience as a legal consultant.
Because of her experience and work background, she is able to testify as to what led up to the death, not
just pain and suffering.

¶30. The majority cites Trapp v. Cayson, 471 So.2d 375, 383 (Miss. 1985), for the well-established rule
that "the plaintiff must show that there is causation in fact." In Trapp, we held that a "jury must believe by a
preponderance of evidence Dr. Trapp violated that duty and negligently did, or failed to do, certain acts,
which proximately caused or contributed to Cayson's injuries." Id. We went on to cite another well-
established rule in that case, that the credibility of medical experts is for a jury to determine. Id. at 380.

¶31. While the majority recognized Dr. Stephen Farrell, who treated Wheeless and noted some of his
opinions, it failed to recognize that Dr. Farrell's testimony further bolstered the testimony of Keller as to
causation. While there is no question that he was a reluctant witness, his testimony alone is enough to send
the case to a jury without Keller's testimony, but with the combination of both, it is sufficient enough for the
testimony to go forward on all issues.

¶32. Dr. Farrell treated Wheeless at the hospital. He testified in his deposition that after she was admitted in
the Intensive Care Unit, family members told him that they were concerned because she experienced some
"melenic" (black, tarry) stool that was not reported to the doctors. He testified that he would expect the
nursing staff to report this condition to doctors "[b]ecause if we believe a person to be stable from having
had gastrointestinal bleeding . . . if they have recurrent melenic stool, then it could indicate a recurring
bleed." He further stated, "that should be reported emergently to the physician because she could be
bleeding again significantly when she was presumed to be stable."

¶33. Dr. Farrell testified that internal bleeding could have exacerbated Wheeless's congestive heart failure.
"The presumption was by Dr. Wilkins, the cardiologist, that she could have a form of congestive heart
failure called high output failure which was associated with a low blood count." He further stated that a low
blood count could be caused by excessive bleeding and that a recurring bleed could cause her hemoglobin
hematocrits to become unstable. This means the volume percentage of oxygen-carrying hemoglobin in her
blood would fall. In other words, her heart was already impaired in its ability to maintain adequate blood
flow, and internal bleeding would further impede the amount of oxygen that her heart was able to deliver to
her brain.

¶34. The death certificate stated that Wheeless's death was caused by a "cerebral vascular accident," or
apoplectic stroke, due to atherosclerosis caused by high blood pressure. Her treating physicians determined
that Wheeless suffered from a completely blocked left carotid artery. As a result, the entire left hemisphere
of her brain was being provided with blood only through the development of new vasculature from the right
hemisphere. She also suffered a stroke on December 11, while in the hospital.

¶35. In spite of her delicate condition, at no time was Dr. Farrell notified by the nursing staff that Wheeless
was exhibiting symptoms of internal bleeding. He testified that "I believe the loss of blood contributed to
[the] angina that she had, the chest pain that she had, and reflected poor blood flow to her heart . . . It could
have led to some of her confusion that she was having and poor blood flow to her brain."

¶36. Wheeless suffered from numerous conditions which caused her to have severely restricted blood flow
to her brain. The nursing staff was aware of this. Whether her internal bleeding, which further limited what
was already considered "poor blood flow to her brain" and created fluctuations in her blood pressure,
caused her fatal stroke is a question for a jury to determine. The qualifications of the causation experts "are
better directed toward the weight of the testimony than its admissibility." Hooten, 492 So.2d at 949.

¶37. In her report, Keller cited numerous "deviations from the Nursing Standards of Care which lead to the
injury and subsequent death of Ms. Vivian Wheeless." She concluded that there were deviations throughout
Wheeless's stay in the hospital, but that the deviations of the nurses on floor 2E are what led to her injury
and subsequent death on January 8. On December 20, Dr. Farrell had Wheeless transferred to a different
room and ordered that she not be returned to the nursing staff on floor 2E.
¶38. The testimony of Dr. Farrell, along with the proffered testimony of Crystal Keller, are sufficient to
create a jury question as to the causation between the treatment of Vivian Wheeless and her injuries. Due to
Keller's education, training, experience as a nurse, and experience in litigation consultation, she should not
have been disqualified as an expert, and her credibility should be weighed by the jury. The burden is on the
movant to prove there are no triable issues. There is sufficient evidence for this case to be tried by a jury.
As the majority notes, the cause of a stroke is a complex medical issue, and it should not be determined by
this Court. I would reverse the grant of summary judgment and remand this case for a jury trial on all issues
including causation on death and not just pain and suffering prior to death. Accordingly, I concur in part and
dissent in part.

     DIAZ, EASLEY AND GRAVES, JJ., JOIN THIS OPINION.
