                   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.

                                                21
¶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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