                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2014-CA-00440-SCT

TABITHA PRAYER, FOR AND ON BEHALF OF
THE ESTATE AND WRONGFUL DEATH
BENEFICIARIES OF JONES TOY, DECEASED

v.

GREENWOOD LEFLORE HOSPITAL


DATE OF JUDGMENT:                            01/16/2014
TRIAL JUDGE:                                 HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                   LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     WALTER ANDREW NEELY
                                             W. ERIC STRACENER, JR.
                                             JOHN F. HAWKINS
ATTORNEYS FOR APPELLEE:                      REX MORRIS SHANNON, III
                                             GAYE NELL LOTT CURRIE
NATURE OF THE CASE:                          CIVIL - WRONGFUL DEATH
DISPOSITION:                                 AFFIRMED - 01/28/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


         BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ.

         KING, JUSTICE, FOR THE COURT:

¶1.      In this wrongful death action alleging medical malpractice as the cause of Jones Toy’s

brain injury and ultimate death, the Leflore County Circuit Court found for the defendant

hospital after a bench trial. Because substantial, credible, and reasonable evidence supports

the trial court’s judgment, this Court affirms the judgment of the Leflore County Circuit

Court.

                         FACTS AND PROCEDURAL HISTORY
¶2.    On September 17, 2008, fifty-four-year-old Jones Toy went to Greenwood Leflore

Hospital (GLH) to have the tip of his right index finger amputated in what was intended to

be an outpatient procedure. At the time of his surgery, Toy had multiple health problems,

including cardiomyopathy, an internal heart defibrillator, end stage renal failure, and a

fistula1 to assist with his dialysis. “His gangrenous finger” that was to be amputated “was

consistent with his past medical history of heart disease and peripheral vascular disease.”

Patients with those types of illnesses often “present with necrotic ulcers in their fingers

and/or their toes due to poor circulation.” George “Sandy” Weathers, a Certified Nurse

Anesthetist (CRNA), completed Toy’s pre-anesthesia report, and classified him as ASA 3,

and his anesthesia plan was determined to be Monitored Anesthesia Care (MAC), in which

the patient is awake, but is given various medicines to make him less aware of the surgery.

Before 1:58 p.m., the time at which Toy entered the operating room (OR), Weathers gave

him the drugs Fentanyl and Versed.

¶3.    Shortly after Weathers took Toy to the operating room, CRNA Joseph (“Jody”)

Simcox came to take over Toy’s care, and Weathers “reported off” to him. Simcox made the

decision to give Toy a 50 milligram dose of Propofol, using a roller clamp to infuse his IV

line so that he could control the rate at which the IV dripped. The orthopedic surgeon, Dr.

Daneca DiPaolo, injected local anesthesia into Toy’s finger. Simcox testified that at that

point, Toy jerked. Thus, he made the decision to give Toy a second dose of propofol exactly

as he had given the first dose. At that point, at about 2:15 p.m., Toy’s blood pressure

       1
        A fistula is a location where an artery and a vein are connected to provide a dialysis
access point with good blood flow.

                                              2
dropped, which was an expected response to the propofol. In response, Simcox administered

ephedrine and atropine to reverse the blood pressure drop. He also changed his supplemental

oxygen mask connected to a breathing machine to a manual bag with a mask that created a

tight seal around Toy’s mouth and nose so that Simcox could manually control and monitor

Toy’s breathing. From 2:15 to 2:30 p.m., no blood pressure and no pulse oxygen readings

for Toy were recorded in the OR record. However, carbon dioxide exhalation was recorded

during this time.2

¶4.    As the surgery concluded, Weathers entered the OR and noticed that Toy had no blood

pressure reading and no pulse oxygen reading. At that point, he tried to palpate for a pulse

and did not find one. A code was called at 2:29 p.m.3 Weathers began chest compressions

at 2:31 p.m. and Simcox was attending to Toy’s airway at 2:30 p.m. and intubated Toy at

2:32 p.m. Toy was successfully resuscitated at 2:32 p.m. At that juncture, he was transferred

to the ICU and his neurological status was documented as “unresponsive.” Toy was

unresponsive except to painful stimuli the entire time he was in the ICU, from September 17,

2008, until his death from heart failure on October 5, 2008. It was agreed that Toy

experienced some sort of anoxic or hypoxic brain injury, but what Prayer and GLH disagree

on is when and how this brain injury occurred.

¶5.    On September 16, 2009, a notice of claim letter was sent to Greenwood Leflore


       2
        The EKG was also showing a normal sinus rhythm. However, the plaintiff alleges
this was pulseless electrical activity from Toy’s internal defibrillator.
       3
        The times noted are the times written in the Code 99 Record. The testimony was that
the times may not be exact, because everyone was focused on the patient in crisis and not
on making a perfect record.

                                             3
Hospital, Leflore County, the City of Greenwood, Dr. DiPaolo, and others involved in Toy’s

care from September 17, 2008, to October 5, 2008. On March 19, 2010, Tabitha Prayer,

Toy’s daughter, filed a wrongful death complaint against GLH, the City of Greenwood,

Leflore County, and John and Jane Doe defendants. Prayer eventually dismissed the claims

against Greenwood and Leflore County. In the complaint, Prayer claimed that CRNA

Simcox overdosed Toy with anesthesia drugs, that Toy “aspirated” during the Code 99 (the

complaint seems to allege that this caused some loss of neurological function), but that

“according to a radiographic exam taken on September 18, 2008, Toy still had neurological

function.” The complaint further alleged that on September 21, 2008, in the ICU, a nurse

       was conducting a physical examination of Toy when she became suspicious
       that Toy was not being ventilated. The RN paged the physician on call, Dr.
       Resik. After approximately twenty-five (25) minutes, an ER physician
       attended to Mr. Toy and reintubated him.4 Due to the failure by the
       Defendants to timely attend to the circumstances, Toy lost all neurological
       function and was left in a state of anoxic encephalopathy.5

¶6.    The bench trial in the case began on August 26, 2013. At trial, the plaintiff proceeded

on the theory that Toy was overdosed by the CRNA and that he suffered anoxic

encephalopathy in the OR because the CRNA failed to timely recognize and treat Toy’s

cardiac arrest. The plaintiff’s theory relied heavily on the lack of blood pressure and pulse

oxygen readings in the OR record for the nearly fifteen minute time period from 2:15 p.m.

until the code was called at 2:29 p.m. The plaintiff abandoned the theory that the brain injury



       4
        This incident is found in the nurse’s notes.
       5
       An anoxic brain injury is one in which the brain has been deprived of oxygen for a
period of time significant enough to cause brain damage.

                                              4
occurred on September 21, 2008, in the ICU. The defendant also noted that, in preparation

for trial, the plaintiff did not take any depositions whatsoever.

¶7.     At trial, the plaintiff put forth several witnesses, including a CRNA expert and an

anesthesiologist.   Yolanda Toy, Toy’s wife, and Prayer both testified that he never

communicated meaningfully after his surgery. Rex Allison, the plaintiff’s CRNA expert,

testified that giving Toy the second dose of propofol “would very likely cause an overdose”

based on Toy’s medical record and his ASA classification of 3, and that what was done was

a breach of the standard of care. He also testified that he believed that Toy was in cardiac

arrest at 2:15 p.m. based upon the precipitous drop of blood pressure, and that “according to

Advanced Cardiac Life Support (ACLS) guidelines, at that point he had no blood flow

through his system and CPR should have been instituted at that point.” He opined that one

reason that no oxygen saturation reading was obtained during this time period could be

because “his blood pressure was too low and he had no circulation.” He noted that,

according to ACLS guidelines, brain injury occurs in less than five minutes in situations like

this.

¶8.     Dr. Norman Douglas Packer, an anesthesiologist and former president of Jackson

Anesthesia Associates, also testified for the plaintiff. He first testified that GLH failed to

appreciate Toy’s medical condition. Like Allison, he testified that the standard of care was

breached with the dosage of propofol. Dr. Packer opined that

        clearly [Toy] received too much medicine. His blood pressure dropped as a
        result of receiving too much medicine. Of course he’s – his breathing stopped,
        as we have seen from the previous CRNA expert, and he had a cardiac arrest,
        and he had no effective blood pressure or circulation for 15 minutes. And that

                                              5
       ultimately led to his death.

He further noted that the EKG electrical activity could be accounted for by Toy’s internal

cardiac defibrillator. He concluded that the cardiac arrest caused a lack of oxygenated blood

flow to the brain, as shown by the failure of blood pressure or pulse oxygen to register, which

caused the anoxic brain injury. He opined that CPR should have been administered around

2:17 p.m.

¶9.    In addition to the testimony, the medical records in evidence contain some indications

that anoxic brain injury was suspected shortly after surgery. Numerous notations in the

nurses’ notes and various patient assessments in the hours and days shortly after surgery

indicate that Toy only responded to painful or “noxious” stimuli, or that he was unresponsive.

Notes by one of the consulting physicians indicate that Toy had a cardiac arrest during his

surgery and “was thought to have sustained hypoxic brain injury during the episode.”

Doctors’ notes and tests performed from that time period also indicate the possibility that

brain injury occurred during, or immediately after, surgery.

¶10.   GLH first called Dr. DiPaolo to testify. Dr. DiPaolo noted that Toy’s “gangrenous

finger was consistent with his past medical history of heart disease and peripheral vascular

disease. In [sic] individuals with those type of illnesses are the ones who generally present

with necrotic ulcers in their fingers and/or their toes due to poor circulation.” Dr. DiPaolo

also testified that in this surgery, the doctor must dissect the finger until she gets a bleeding

edge “because it’s the blood supply that brings the oxygen that gets the wound to heal.” She

testified that she did indeed dissect Toy’s finger until she observed bleeding. She noted that



                                               6
if Toy had been without a pulse for any significant period of time, she would not have been

able to obtain bleeding from the finger. She also testified that the actual surgery took about

five to ten minutes. Dr. DiPaolo testified that Toy had a fistula in his forearm “which is a

type of blood vessel connection that is used for dialysis patients, and what it is is an artery

is connected to a vein to allow for a very easily identified pulsation.” She stated that a fistula

pulses more evidently than a normal pulse, and that as she was completing the procedure, she

noticed that the fistula no longer had a pulse. Prior to the end of the procedure, she had not

noticed any lack of blood flow to the fistula.

¶11.   CRNA Weathers testified next. He noted that certain occurrences can prevent an

accurate blood pressure reading, for example, if the patient is moving or if there is a

fluctuation in blood pressure, which may explain the lack of blood pressure readings in the

OR record. He also testified that it is very common to get no pulse oxygen reading when the

blood pressure cuff is on the same arm as the pulse oximeter, because “the tightening of the

blood pressure cuff prevents a pulse from reaching the extremity,” potentially explaining the

lack of pulse oxygen reading in the OR record. Last, in regard to the OR record, he noted

that the fifteen minute increment block on the form represents a block of time and what is

recorded is just a snapshot. He did admit that he palpated for a pulse as soon as he walked

into the OR and immediately began CPR, and that Toy was revived about one minute later.

¶12.   CRNA Simcox testified next. He testified that when Dr. DiPaolo stuck Toy with a

needle, Toy moved, so Simcox then gave Toy the second dose of propofol. He stated that

Toy’s breathing slowed and his blood pressure dropped, which was an expected response.



                                                 7
Because he expected this response, Simcox testified that he already had some ephedrine

drawn up, which he administered to raise blood pressure. Simcox also testified that at that

point, he could determine that Toy was breathing because of the rise and fall of his chest and

the fogging of his oxygen mask, but that his breathing did slow, so Simcox “elected to take

my mask, which is connected to my breathing machine, and put it on his face, and it’s

connected to the balloon and bag that you see people squeeze.” At that point, Simcox noted

that Toy had a tight seal on his mouth and nose and Simcox had his hands on the bag, and

could thus better determine whether Toy was breathing, and how deeply. He further testified

that when he was mask assisting Toy, Toy was breathing on his own. He mentioned that at

one point when he failed to get a blood pressure, Toy was moving his arm purposefully, so

he wasn’t concerned about the lack of blood pressure since Toy had purposeful movement,

an EKG tracing, carbon dioxide output, and was inhaling and exhaling.

¶13.   After Toy’s heart rate fell, he gave Toy a dose of atropine to increase heart rate.

Simcox also gave Toy a second dose of ephedrine. Simcox testified that at that point, a blood

pressure cycle failed to register, Toy’s breathing changed dramatically, the surgery was

finishing up, and Weathers came into the OR. That was when Weathers palpated for a pulse

and found none, and he began chest compressions while Simcox intubated Toy. Simcox

testified that after they stabilized Toy and Toy began waking up, Toy began to grab for the

intubation tube and got a bit combative. They tried to calm him down and instructed him not

to pull the tube out. When asked if he believed that Toy could understand what was being

said to him, Simcox replied “Yeah, I think so. You know, we were talking to him. He was



                                              8
clearly agitated. A breathing tube is an offensive mechanism, an instrument. I have no

reason to believe he didn’t understand us at that point.” Simcox testified that Toy did not go

ten minutes without breathing, and that the end-tidal carbon dioxide measurements from 2:15

to 2:30 were proof of exhalation.

¶14.   Regarding the inconsistencies in the anesthesia record, Simcox testified that he

completed some of the anesthesia record after Toy had been transported to the ICU, because

he was having to use two hands to care for Toy during the latter portion of the procedure,

rather than being able to write on a document. He “conceded that the documentation of

paperwork perhaps was neglected. That patient Mr. Toy and his condition was not

neglected.”

¶15.   Dr. Claude Brunson, an anesthesiologist, former chairman of the University of

Mississippi Medical Center Department of Anesthesiology, and a board member of the

American Society of Anesthesiology, as well as the president of the Mississippi State

Medical Association, testified as an expert for GLH. Dr. Brunson noted that, prior to the

surgery, Toy had cardiomyopathy, an illness of the heart, and a number of other “significant”

illnesses. He first testified that the dosage of propofol given to Toy was acceptable,

particularly pointing out that propofol is a short-acting drug. With regard to the lack of pulse

oxygen reading, Dr. Brunson opined that

       if anything, it keeps the blood from flowing up here or if you get cold or
       vasoconstricted or if you have peripheral vascular disease it’s hard for the
       blood to get out there in the first place, and so you’ll lose the reading on the
       pulse oximeter. The other thing that would cause that from happening is
       because this was a shared arm, the surgeon was operating on one arm, and so
       they had to put the blood pressure cuff on the same arm as the pulse oximeter.

                                               9
       So every time the blood pressure cuff goes up it takes the pressure and squeeze
       the arm and stop the blood flow, and so you’re gonna have intermittent times
       when the pulse oximeter is not going to pick up whenever the cuff is going up.

Dr. Brunson consequently testified that simply because the pulse oximeter does not get a

reading does not mean that the patient has no oxygenation in his blood. He also opined that

it was more important for Simcox to turn his attention to Toy due to his condition, rather than

to record blood pressure readings. Dr. Brunson noted the presence of end-tidal carbon

dioxide measurements. He defined it as

       [e]nd-tidal CO2 is we breathe in oxygen and we blow out carbon dioxide, and
       so we actually look at the end-tidal CO2 as one of the more important
       monitors. Because we can get you saturated but we’ve got to get the
       oxygenated blood around to the important organ systems in the body, and the
       way we know that is if you then return CO2 back and you breathe it out, we
       know that the entire cycle is working then.

He testified that the recorded CO2 levels in the OR record indicate that Toy’s “complete

respiratory cycle was present” also noting that “[y]ou cannot have expired CO2 if you’re not

circulating.”

¶16.   Dr. Brunson testified that if Toy was pulseless with no blood pressure “for 10 or 15

minutes, it’s physiologically unsustainable for life.” He further testified that the resuscitative

efforts used were appropriate. He noted that the record indicated neurological activity in Toy

after the surgery, which is important because “[i]f you get an anoxic brain injury from lack

of oxygen, it’s usually a global hypoxic event for the whole brain, and you will generally not

see neurological activity following that.” He opined that perhaps the incident in the ICU in

which Toy’s tube was extubated caused the brain injury. He concluded that no anoxic brain

injury occurred in the OR.

                                               10
¶17.   The trial court entered judgment in favor of GLH. In its Findings of Fact and

Conclusions of Law (FOFCOL), it found Toy “was having a gaseous exchange required to

circulate oxygen through the bodily system.” It specifically noted that the end-tidal carbon

dioxide monitor recorded a positive reading during the surgery. It also specifically noted that

“[t]he Court found Dr. Dipaolo to be a credible witness whose testimony was given in a calm

professional, matter-of-fact, manner. The Court accepts Dr. Dipaolo’s testimony as truthful.”

It concluded that Toy was revived within less than one minute after his cardiac arrest and that

“[a]t no time from the point prior to the procedure, when Mr. Toy was placed on

supplemental oxygen, through the time of his arrest was Mr. Toy ever deprived of oxygen.”

The trial court further found that “[n]o evidence was presented in regard to the care and

treatment rendered to Mr. Toy after 3:00 p.m. on September 17, 2008.” The trial court

applied its findings to the elements of negligence in a medical malpractice lawsuit. While

the court found that a duty did exist, it found that Toy’s cardiac arrest occurred in the absence

of any negligence. It found that Toy was not overmedicated and that the drugs given him

were administered within the standard of care. It further found that Prayer failed to establish

that Weathers or Simcox breached the standard of care or that any such breach proximately

caused Toy’s injury or death. Indeed, it found that “Mr. Weathers and Mr. Simcox met or

exceeded the applicable standard of care in their care and treatment of Jones Toy at all times

and in all respects. The Court further finds that nothing Mr. Weathers or Mr. Simcox did or

failed to do proximately caused or contributed to any injury to Mr. Toy or Mr. Toy’s death.”

¶18.   Prayer appeals to this Court. The sole issue she raises on appeal is that the trial



                                               11
court’s FOFCOL is not supported by substantial, credible, and reasonable evidence.

                                         ANALYSIS

¶19.   In a medical malpractice case, this Court reviews the trial court’s findings for manifest

or clear error. Univ. Med. Ctr. v. Martin, 994 So. 2d 740, 746 (Miss. 2008). The trial

court’s “findings must be supported by substantial, credible, and reasonable evidence.” Id.

Its findings are accorded deferential treatment, such that “[f]indings of fact by a trial judge

after a bench trial are subject only to a limited scope of review if the trial judge applied the

appropriate legal standard.” Id. If the record contains substantial supporting evidence, “this

Court will not reverse a trial court’s findings, even if this Court disagrees with those

findings.” Id. at 747. In determining whether the trial court’s findings are supported by

substantial, credible, and reasonable evidence, this Court “must examine the entire record and

must accept[] that evidence which supports or reasonably tends to support the findings of fact

made below, together with all reasonable inferences which may be drawn therefrom and

which favor the lower court’s findings of fact.” Id. (internal quotations omitted). Moreover,

conflicting testimony is to be resolved by the trier of fact, the judge in a bench trial. Id. at

746. The trial judge in a bench trial must also determine questions of weight and credibility

of testimony, including that of experts. Id. at 747.

¶20.   Prayer argues that the trial court’s finding that Toy did not suffer a brain injury while

in the surgical suite is not supported by credible evidence. She further argues that the

credible evidence shows that Toy did suffer a brain injury during surgery. She also claims

that the court should not rely on testimony from Simcox, as his testimony was inconsistent,



                                              12
controverted, and self-serving.

¶21.   It is certainly true that the record contains credible evidence tending to show that Toy

suffered a brain injury during surgery. The OR record contains no blood pressure or pulse

oxygen readings for nearly fifteen minutes, the ICU records contain multiple notations that

indicate that Toy was unresponsive after surgery and never regained any ability to respond,

the ICU records indicate that doctors suspected brain injury, one doctor’s note contains a

written suspicion that brain injury occurred during surgery, and Prayer’s experts opined that

Toy was overdosed and that Simcox failed to timely and appropriately respond when Toy

crashed, and thus deprived him of oxygen for ten to fifteen minutes.

¶22.   Conversely, the record also contains credible evidence tending to show that Toy did

not suffer a brain injury during surgery, that he did not suffer any lack of oxygen during

surgery, and that no standards of care were breached. Simcox testified that Toy was

breathing until the cardiac arrest event at the end of the surgery. Dr. DiPaolo testified that

Toy’s fistula pumping blood was noticeable to her and that she did not notice it stop pumping

blood until the end of the surgery, at which point resuscitative efforts began immediately.

She also testified that she was able to obtain bleeding in the finger toward the end of the

surgery, which would not have occurred had Toy stopped circulating oxygen. The OR record

contains carbon dioxide exhalation measurements for the entire surgery, which Dr. Brunson

opined would not have occurred had Toy ceased circulating oxygen. Dr. Brunson testified

as to his opinion that Toy was not overmedicated and that he did not suffer a brain injury in

the OR, noting that had Toy been without oxygen for ten or fifteen minutes, resuscitation



                                             13
would have been impossible. The medical record indicated that some neurological signs

were present after surgery, and Dr. Brunson testified that these neurological signs would be

unlikely to be present had Toy suffered a hypoxic event in the OR. Dr. Brunson opined that

the extubation event on September 21, 2008, in the ICU was more likely to have caused

Toy’s brain injury.

¶23.   This is a case in which, as many do, the record contains conflicting credible evidence,

with evidence supporting each party’s theories. In this case, the trial court was tasked with

determining the weight and credibility of the evidence and resolving the conflicting evidence.

The trial court specifically found Dr. DiPaolo to be very credible, and her testimony lent

credence to GLH’s theory that the brain injury did not occur during surgery. It ultimately

resolved the conflicting evidence in favor of GLH. In reviewing the entire record, this Court

“must accept[] that evidence which supports or reasonably tends to support the findings of

fact made below, together with all reasonable inferences which may be drawn therefrom and

which favor the lower court’s findings of fact.” Martin, 994 So. 2d at 747 (internal

quotations omitted). In accepting all the evidence which reasonably tends to support the trial

court’s findings of facts, as well as the reasonable inferences which may be drawn therefrom,

it is clear that the trial court did not manifestly err in this case. While enough evidence exists

in the record such that reasonable minds may disagree, substantial, credible, and reasonable

evidence exists to support the trial court’s findings in favor of GLH.

                                       CONCLUSION

¶24.   Conflicting credible evidence exists in the record supporting both sides of the



                                               14
argument as to whether Toy suffered a brain injury in the OR. The trial court resolved the

conflicting evidence in favor of GLH. Because substantial, credible, and reasonable

evidence exists to support the trial court’s judgment, the trial court did not commit manifest

error by entering judgment in favor of GLH, and this Court therefore affirms the judgment

of the Leflore County Circuit Court.

¶25.   AFFIRMED

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, COLEMAN AND MAXWELL, JJ., CONCUR.




                                             15
