         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00184-COA

JERRY BOWEN AND CHERYL BOWEN                                               APPELLANTS

v.

AMORY HMA, LLC D/B/A GILMORE                                                 APPELLEES
MEMORIAL REGIONAL MEDICAL CENTER
AND PATRICK ANDERSON MURPHREE, M.D.

DATE OF JUDGMENT:                          01/13/2015
TRIAL JUDGE:                               HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED:                 MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                   NED MCDONALD III
ATTORNEYS FOR APPELLEES:                   LOUIS G. BAINE III
                                           MARK P. CARAWAY
                                           STEPHEN P. KRUGER
                                           KIMBERLY NELSON HOWLAND
NATURE OF THE CASE:                        CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                   SUMMARY JUDGMENT GRANTED TO
                                           APPELLEES
DISPOSITION:                               AFFIRMED - 06/28/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.

       BARNES, J., FOR THE COURT:

¶1.    On December 6, 2007, Jerry Bowen underwent outpatient surgery on his right

shoulder at Amory HMA LLC d/b/a Gilmore Memorial Regional Medical Center (Amory

HMA). Bowen signed a “Consent for Anesthesia Services” form prior to surgery, which

stated that “loss of sensation, loss of limb function, [and] paralysis” are complications that

can occur with the administration of anesthesia and that “Major/Minor Nerve Block” risks

include “weakness, persistent numbness, residual pain.”          Dr. Patrick Murphree, an
anesthesiologist and employee of Amory HMA, administered an interscalene block prior to

general anesthesia. After surgery, Bowen experienced continuous numbness and weakness

in his shoulder. He sought treatment from several doctors who opined that Bowen had

suffered an injury to his brachial plexus nerve, likely as a result of the interscalene block

administered by Dr. Murphree.

¶2.    Bowen filed a complaint on June 2, 2010, alleging that he suffered a “severe and

debilitating injury” due to the negligence of Amory HMA and Dr. Murphree.1 Bowen’s

occupation was installing acoustical tiles in ceilings, and he claimed that since the surgery,

he had been unable to raise his right arm over his head. He asserted that the Defendants had

breached the standard of care “[b]y failing to obtain informed consent from . . . Bowen prior

to the interscalene block[.]”

¶3.    After discovery was conducted, Amory HMA filed a motion for summary judgment

on October 17, 2014, arguing that Bowen failed to produce “any competent medical evidence

to establish that any of the Defendants deviated, in any way, from the applicable standard of

care” or caused the alleged damages. None of Bowen’s doctors who had opined regarding

the cause of the nerve damage were designated as experts. The motion further noted that any

informed-consent claim should be dismissed against Amory HMA, as it was Dr. Murphree’s

duty to obtain informed consent.2 Dr. Murphree joined Amory HMA’s motion for summary

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           Bowen’s wife, Cheryl, also asserted a claim for loss of consortium.
       2
          Bowen acknowledged that his claim against Amory HMA was based on vicarious
liability and that he had no independent claim against the hospital.

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judgment on November 18, 2014. Bowen responded that there were disputed issues of fact

concerning whether Dr. Murphree obtained informed consent from Bowen, claiming that he

“would not have agreed to both the interscalene block and general anesthesia had he been

informed of the risks and feasible alternatives.” Bowen supplemented his response with Dr.

Murphree’s answer to the Plaintiffs’ interrogatories, specifically noting answers concerning

informed consent. In their reply, the Defendants asserted that Dr. Murphree’s interrogatory

responses were not sufficient to defeat summary judgment, again noting Bowen’s failure to

provide expert medical testimony to support his claim.

¶4.    After a hearing, the trial court granted the Defendants’ motion for summary judgment

on January 20, 2015. Finding no error, we affirm.

                               STANDARD OF REVIEW

¶5.    We apply a de novo standard of review to a trial court’s grant of summary judgment.

Vick v. Brandon HMA LLC, 167 So. 3d 259, 261 (¶10) (Miss. Ct. App. 2015) (citing Morton

v. City of Shelby, 984 So. 2d 323, 329 (¶10) (Miss. Ct. App. 2007)). A trial court’s

consideration of a motion for summary judgment involves “view[ing] all evidence in a light

most favorable to the non-moving party, [and o]nly when the moving party has met its burden

by demonstrating that there are no genuine issues of material fact in existence should

summary judgment be granted.” Id.

                                      DISCUSSION

¶6.    The issue presented on appeal is whether Dr. Murphree breached a duty to Bowen by


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failing to obtain informed consent prior to administering the interscalene block. In Reikes

v. Martin, 471 So. 2d 385, 392 (Miss. 1985), the Mississippi Supreme Court adopted the

objective standard used by the “vast majority of the states” to determine whether a plaintiff

may recover under the doctrine of informed consent, holding that “the question [is] whether

or not a reasonably prudent patient, fully advised of the material known risks, would have

consented to the suggested treatment.” Accordingly, “a physician is required to ‘disclose

those known risks which would be material to a prudent patient in determining whether or

not to undergo the suggested treatment.’” Jamison v. Kilgore, 903 So. 2d 45, 50 (¶16) (Miss.

2005). “Thus, where a plaintiff charges that a doctor performed a procedure without first

obtaining informed consent, the plaintiff’s first task is to establish what are known risks of

the procedure. This requires an expert opinion.” Id. at (¶17) (emphasis added); see also

Whittington v. Mason, 905 So. 2d 1261, 1266 (¶25) (Miss. 2005) (“[E]xpert testimony is

required to assist the finder of fact in determining whether a particular risk is material,

requiring disclosure to the patient prior to a medical procedure.”).

¶7.    Bowen’s treating orthopedic surgeon, Dr. John Turba, provided deposition testimony

that, “based on reasonable medical certainty,” the cause of Bowen’s medical issues was the

interscalene block. However, he further testified that the use of an interscalene block was

the standard of care and, unless there was some contraindication, his patients having shoulder

surgery would almost always receive an interscalene block. Furthermore, Bowen never

designated Dr. Turba as an expert. The supreme court has held:


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       A treating physician must be designated as an expert if the treating physician
       goes beyond historical facts personally observed and evaluates the evidence
       in an attempt to explain it to the jury. Therefore, our precedent forbids treating
       physicians not designated as experts from testifying to standards of care,
       causation, or using their expertise to explain the significance of a diagnosis or
       answer hypothetical questions.

Chaupette v. State, 136 So. 3d 1041, 1052 (¶28) (Miss. 2014) (internal citations and

quotations omitted). As noted at the motion hearing by counsel for Amory HMA, Dr. Turba

“never claimed to be competent to provide an opinion as to the standard of care for an

anesthesiologist.”

¶8.    Bowen argues that Dr. Murphree’s responses to his interrogatories “provide[d] the

applicable standard of care regarding informed consent.”

       INTERROGATORY NO. 2: Provide, in detail, all information you were
       required to provide to Jerry Bowen to obtain his “informed consent” prior to
       the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional
       Medical Center in Amory, Mississippi.

       RESPONSE: Objection is made to this Interrogatory to the extent it requests
       expert opinions. Expert opinion testimony will be identified pursuant to Rule
       26(b) of the Mississippi Rules of Civil Procedure. Without waiving any
       objection, I was required to describe my portion of the procedure and disclose
       material known risks. The information I provide to patients, including Mr.
       Bowen, prior to administering an interscalene block [is] described in
       Interrogatory No. 3. Such disclosure does comply with the applicable standard
       of care.

       INTERROGATORY NO. 3: Provide, in detail, the information you allege you
       provided, whether in writing or verbally, to Jerry Bowen prior to the December
       6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in
       Amory, Mississippi.

       RESPONSE: The written portion of the disclosure is the Consent for
       Anesthesia Services that was signed by Mr. Bowen. The verbal portion of

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       informed consent that I perform with regard to an interscalene block includes
       explaining its purpose, which is discussed in detail in my deposition. A patient
       of mine undergoing such a block would be informed that the block helps
       alleviate pain within the first eighteen to twenty-four hours of the
       postoperative period. The block also helps control[] the blood pressure when
       the surgeon operates; an increase in blood pressure can cause bleeding into the
       shoulder joint and obscure the surgeon’s view. Employing an interscalene
       block allows us to use less general anesthesia, which has its own risks that I
       explained. An alternative would be to use only general.

       The risks of an interscalene block that I disclose include:

       1.     The accidental injection of medication into a blood vessel could result
              in a seizure or cardiac toxicity;

       2.     Temporary side effects including hoarseness, bloodshot eyes, and
              drooping of the eyelid on the side of the block;

       3.     The block usually has a temporary effect on the diaphragm; rarely, this
              can result in shortness of breath;

       4.     Parasthesias (numbness, tingling or burning) for up to several weeks;

       5.     Pneumothorax from puncture of the lungs;

       6.     Spinal or epidural injection of the local anesthetic with resulting
              temporary paralysis and low blood pressure; and

       7.     1 in 5,000 to 10,000 chance of permanent nerve damage.

(Emphasis added).

¶9.    Bowen denies that Dr. Murphree told him about the chance of permanent nerve

damage, thereby, in his view, creating a genuine issue of material fact. The Appellees note,

however, that Dr. Murphree’s response “does not attempt to articulate the known risks of

interscalene block or to delineate which of the known risks Dr. Murphree believes to be


                                              6
material.”   He merely identified the disclosures he makes and confirmed that those

disclosures comply with the applicable standard of care. He did not indicate that each and

every item was required to be disclosed.

¶10.   Our supreme court has held:

       [N]o doctor could comply with a requirement to disclose every possible risk
       to every procedure. Therefore, the physician must disclose only material
       known risks. A known risk is one which would be known to a careful, skillful,
       diligent and prudent practitioner or specialist. Once the known risks are
       enumerated, they can then be evaluated as to which are material. The
       physician may not be required to inform the patient of unexpected or
       immaterial risks. Among the many factors which could weigh on the question
       of materiality are frequency of occurrence, potential severity or danger
       associated with the risk, and the cost and availability of an alternative
       procedure. These factors cannot be established absent expert testimony. If a
       known risk is found to be material, and was not disclosed to the patient, then
       the question of causation must be addressed.

Dunn v. Yager, 58 So. 3d 1171, 1200-01 (¶73) (Miss. 2011) (internal citations and quotations

omitted) (emphasis added); see also Johnson v. Burns-Tutor, 925 So. 2d 155, 159 (¶21)

(Miss. Ct. App. 2006) (concluding that “without the testimony of a medical expert, neither

this Court nor a jury c[ould] understand what information [the physician] should have

disclosed to [the patient] before she consented to the procedure” (citing Whittington, 905 So.

2d at 1266 (¶24))). Accordingly, without expert testimony to establish that the risk of the

type of injury suffered by Bowen was a “material known risk,” and one for which a

“reasonably prudent patient” would have withheld consent upon being adequately informed,

Bowen failed to provide sufficient evidence to withstand summary judgment. See Jamison,

905 So. 2d at 613 (¶12) (“By refusing to offer an expert witness to support [a] claim for lack

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of informed consent, [the plaintiff] offered no genuine issues of material fact for the trial

court’s determination.”). We agree with the trial court that Dr. Murphree’s interrogatory

responses do not supply the missing expert testimony.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION.




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