        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-CA-00732-COA

THE UNIVERSITY OF MISSISSIPPI MEDICAL                                  APPELLANT
CENTER

v.

LEONTYNE LITTLETON, INDIVIDUALLY,                                        APPELLEE
AND ON BEHALF OF THE ESTATE OF
CLEOPATRA LITTLETON, DECEASED, AND
HER WRONGFUL DEATH BENEFICIARIES

DATE OF JUDGMENT:           05/23/2014
TRIAL JUDGE:                HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
                            FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:    JOHN M. COLEMAN
                            JACOB O. MALATESTA
ATTORNEYS FOR APPELLEE:     SUZANNE G. KEYS
                            CRYSTAL W. MARTIN
NATURE OF THE CASE:         CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION:    JUDGMENT IN FAVOR OF THE
                            PLAINTIFF IN THE AMOUNT OF THE
                            STATUTORY MAXIMUM OF $500,000
DISPOSITION:                REVERSED AND RENDERED - 10/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

      BARNES, J., FOR THE COURT:

¶1.   The University of Mississippi Medical Center (UMMC) appeals the judgment of the

Circuit Court of Hinds County, which found UMMC liable under the Mississippi Tort

Claims Act for the death of Cleopatra Littleton (Cleopatra), awarding Plaintiff Leontyne

Littleton (Littleton), Cleopatra’s mother, the maximum statutory-damage award of
$500,000.1 On appeal, UMMC raises issues focused on the adequacy of causation testimony

by Littleton’s expert, Dr. David Wiggins. UMMC argues that the trial court erred in finding

Dr. Wiggins qualified as a hospitalist,2 that his opinions were speculative, and that his

opinions and the trial court’s findings on Cleopatra’s cause of death were contradicted by

the autopsy reports. Finding error with the trial court’s reliance on the testimony of Dr.

Wiggins regarding the proximate cause of Cleopatra’s death, we reverse and render

judgment in favor of UMMC.

              STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On February 18, 2009, Cleopatra, a twenty-nine-year-old nursing student and single

mother of two young children, went to the emergency room (ER) at Mississippi Baptist

Medical Center (Baptist). She complained of a severe headache that had started the previous

morning, as well as nausea and dizziness. A CT scan of her brain showed no abnormalities.

Cleopatra was diagnosed with a migraine headache, given some pain medication, and told

to return to the ER if her condition worsened or changed.

¶3.    On February 20, 2009, Cleopatra returned to the Baptist ER, complaining of shortness

of breath and vomiting, as well as a severe headache that was not relieved by headache

medicine. Dr. Janet Neilson, a second-year family-practice resident from UMMC, treated




       1
         Mississippi Code Annotated section 11-46-15(1)(c) (Rev. 2012) establishes the
limitations of liability for governmental entities or employees.
       2
           A hospitalist is an inpatient internal-medicine physician.

                                               2
Cleopatra.3 Since Cleopatra was a nursing student, she was concerned she may have caught

the flu interacting with patients; so Cleopatra was given a flu swab as a professional

courtesy. The test was negative. Cleopatra was discharged with antibiotics to treat a

possible upper respiratory infection, and pain medication for a migraine headache.

¶4.    The next afternoon, Saturday, February 21, 2009, Cleopatra went to the UMMC ER,

complaining that her headache was worsening, and her vision was blurred. She also

complained for the first time that her neck was stiff. A physical examination revealed pain

and loss of movement in her neck. She had a temperature of 102 degrees, but her other

vitals were normal. Due to these symptoms (which were different and worse than those she

presented at the Baptist ER), physicians performed a lumbar puncture, which confirmed a

diagnosis of meningitis. Because of Cleopatra’s white blood count and elevated protein in

her cerebrospinal fluid, the test results were consistent with bacterial meningitis. Therefore,

Cleopatra was given antibiotics and steroids, as well as pain medication, and admitted to the

internal-medicine ward in the general hospital at UMMC early Sunday morning, in stable

condition.4


       3
         Baptist and UMMC had an agreement that UMMC’s family medical residency
program admitted patients to Baptist who were seen and treated by UMMC family-practice
residents. Residents on call at the hospital saw hospitalized patients as well as those who
came to the ER. It is undisputed that Dr. Neilson was an employee of UMMC at the time
she treated Cleopatra at Baptist.
       4
        Dr. Michael Shoemaker-Moyle, an attending physician who was treating Cleopatra,
had ordered a pulse oximeter and disposable sensor at 4 a.m. Sunday morning. This device
shows if the patient is receiving insufficient oxygen. However, reports show the oximeter
was on “stand-by” at 10:45 a.m. and 11 p.m. Sunday, February 22, and at 3 a.m. Monday,
February 23. At trial, registered nurse Brittany Fells testified that when Cleopatra died, the
alarm of the oximeter should have gone off but did not.

                                              3
¶5.    Later, on the morning of Sunday, February 22, 2009, the nurses’ report showed

Cleopatra continued to have extreme headache and neck pain, and could not get

comfortable; so she was given IV pain medication. Records show her pain subsided, but at

1 p.m. it returned. She was given more pain medication and fell asleep. At 3 p.m.,

Cleopatra told nurses she was in such pain that she requested medication to “just knock [her]

out.” Physicians ordered a morphine IV, and Cleopatra was noted as sleeping at 6:50 p.m.

Cleopatra continued to be given antibiotics as well. The parties agree that the antibiotics

given were appropriate for bacterial meningitis.5

¶6.    Also on Sunday, Cleopatra called her sister, who was in the hospital at UMMC for

several chronic illnesses. Cleopatra complained that the nursing staff was not responding

to her calls; so her sister called the UMMC help line to rectify the alleged problem. At

approximately 5 p.m., Cleopatra was seen by attending physician Dr. John D. Wofford Jr.6


       5
          Littleton, however, claimed the UMMC nursing staff untimely and improperly
administered the dosages. Littleton claims the antibiotic dose at 9 a.m. was given late;
however, UMMC’s Dr. Matthew Cassell, one of Cleopatra’s treating physicians, testified
that this delay would not have mattered after the initial dose, and if Cleopatra had viral
meningitis, the timing of the antibiotics would have had no impact at all. Additionally,
Littleton points out that one dose infiltrated the muscle causing Cleopatra’s condition to
worsen due to lack of antibiotics, even though her nursing expert admitted this is a common
occurrence with IVs.
       6
         Littleton complains that there was no consultation between the general medicine
physicians and specialized physicians, such as a neurologist, cardiologist, or infectious-
disease specialist when Cleopatra was in the hospital; however, this statement is not
supported by the record. Dr. Wofford, a hospitalist on staff at UMMC, testified at trial as
both an expert and fact witness. He treated Cleopatra on the hospital floor and is board
certified in internal medicine as well as infectious diseases. At trial, he was accepted as an
expert in both of these specialties. He completed an infectious-disease fellowship and
practiced as an infectious-disease specialist for thirteen years, before changing his specialty
to emergency medicine, and then taking a position as a hospitalist. While Dr. Wofford’s

                                              4
Cleopatra told him that “when she closed her eyes, she saw people.” Her head ached, and

her neck was still stiff. Dr. Wofford noted that Cleopatra probably had viral7 and not

bacterial meningitis, but his plan was to continue treating her with antibiotics, “watch[ing]

for clinical responses” to them, because it was still a “mixed picture.”8 Cleopatra was also

treated by third-year resident Dr. Cassell on the hospital floor.

¶7.    On the morning of Monday, February 23, 2009, Nurse Fells recorded on the nursing

progress reports that Cleopatra still complained of neck stiffness and headache, but nothing

further. Cleopatra was given morphine through her IV for the pain. At approximately 11

a.m., Cleopatra’s brother, Martin Littleton, went to visit her. Cleopatra had asked him to

bring her a baked potato and sweet tea from McAllisters for her lunch. Martin testified that

Cleopatra did not “look like herself.” While visiting for about an hour, Martin witnessed

a physician, a nurse, and a nursing assistant treat and give medicine to Cleopatra. She told

the medical staff her throat was hurting, her vision was blurred, and one arm was tingling;

at 12:35 p.m., Dr. Cassell was notified of these symptoms. Dr. Cassell responded five

minutes later that he would report to Cleopatra’s bedside. Her antibiotics were increased,



current title may not have indicated he was an infectious-disease specialist, he certainly had
substantial experience in this specialty.
       7
       Expert witnesses testified that viral meningitis is usually not as serious as bacterial
meningitis.
       8
        Littleton criticized Dr. Wofford for “order[ing] nothing new” for Cleopatra once he
considered that her meningitis was possibly viral, but Dr. Wofford testified at trial there is
no treatment for viral meningitis except supportive care, such as pain medication and IV
fluids. Additionally, giving Cleopatra antibiotics would not have affected a possible viral
infection, but would also have done no harm.

                                              5
and she was given more morphine through her IV. According to the medical records and

Fells, a group of physicians examined Cleopatra between 1:00 and 1:35 p.m., including Drs.

Cassell and Shoemaker-Moyle.        Dr. Shoemaker-Moyle ordered another CT scan on

Cleopatra’s brain at approximately 1 p.m., given her new neurological complaints, to

determine if she had a possible mass lesion on her brain.9 Cleopatra’s vital signs did not

change significantly until 4 p.m., when her temperature rose to 102 degrees, and her blood

pressure dropped to 91 over 58.10 Records show Fells was notified of this change. Fells did

not notify a physician of this change because she had just given Cleopatra morphine, which

would account for this drop in blood pressure. However, both Drs. Wofford and Cassell

stated that, in hindsight, they would have preferred to have been notified of the change.

¶8.    Fells’s testimony and her “daily data records” indicate that she checked on Cleopatra

at 4:45 p.m. Fells testified that at this time, Cleopatra opened her eyes when Fells came into

the room and when she put down the clipboard. Cleopatra did not say anything, and neither

did Fells, because Cleopatra was resting.

¶9.    Martin testified that he returned to the hospital Monday afternoon. Entering the

room, he thought Cleopatra was asleep, but wanted a nurse to check on her. He went to the

desk, told a secretary, and the secretary found Fells. Fells examined Cleopatra and, finding



       9
        The CT scan was unable to be completed before Cleopatra expired. Regardless, her
autopsy showed no brain lesions.
       10
         At 8 a.m., her temperature had been 99.2 degrees, her pulse 66, and her blood
pressure 151 over 104. At noon, her temperature had increased to 100 degrees, her pulse
to 90, and her blood pressure to 153 over 108. Fells attributed the elevation in pulse and
blood pressure to Cleopatra’s escalating pain. At 4 p.m., Cleopatra’s pulse was 86.

                                              6
her nonresponsive, called a “code blue” at 5:14 p.m. Medical personnel unsuccessfully tried

to resuscitate her, but Cleopatra was pronounced dead at 5:39 p.m.

¶10.   Dr. Charu Subramony, a professor of pathology and director of autopsy services at

UMMC, performed the autopsy on Cleopatra’s body the day after she died. The initial

report, dated June 22, 2009, diagnosed Cleopatra with “meningoencephalitis, partially

treated, probably bacterial etiology.” Her cause of death was reported as “cerebral edema

secondary to bacterial meningitis”; however, the “causative organism” for her meningitis

was “unknown” because her premortem and postmortem cerebrospinal-fluid cultures were

negative. Therefore, the report stated that additional tests were ordered on tissue samples

taken from Cleopatra’s brain, and sent to the Infectious Disease Pathology Branch of the

Center for Disease Control (CDC).11 On June 19, 2009, the CDC gave a verbal report to Dr.

Subramony that the brain-tissue samples were negative for the bacteria neisseria (the bacteria

that most commonly cause meningitis), but further tests were being performed to rule out

certain viral pathogens.12

¶11.   In October 2009, the CDC sent a pathology report to Dr. Subramony that the brain

tissue was negative for the bacteria streptococcus pneumoniae and the West Nile virus. On

March 15, 2011, Dr. Subramony received an email from the CDC on the final pathology

report for the brain tissue. It stated the premortem and postmortem cultures “failed to show


       11
         Nonetheless, the death certificate, dated February 23, 2009, inaccurately listed
sepsis and bacterial meningitis as the immediate cause of death.
       12
         UMMC’s infectious-disease expert, Dr. Jo Deal, testified that only the most
common viral infections for meningitis are tested, as there are so many viral infections that
can cause it, and the CDC does not have accurate tests for all of them.

                                              7
a bacterial or entoviral etiology for the meningo inflammation.” The autopsy diagnosis was

thus changed to “nonsuppurative[13] meningitis and perivascular inflammation” of the brain,

as stated on the CDC’s final pathology report. As a result of these findings, the autopsy

report was corrected to change the cause of death from meningoencephalitis “probable

bacterial etiology” to “probably viral etiology.” At trial, Dr. Subramony testified that, more

likely than not, viral meningitis caused Cleopatra’s death, but the CDC “could not find a

specific organism causing her meningitis because no organisms were cultured by our routine

methods.”

¶12.   On February 16, 2010, Cleopatra’s mother filed her medical-malpractice complaint

individually and on behalf of Cleopatra’s wrongful-death beneficiaries against Baptist, five

physicians (including Dr. Neilson), and UMMC, alleging that all seven defendants failed to

exercise the appropriate standard of care, which resulted in Cleopatra’s death.14 Specifically,

she claims that Dr. Neilson’s failure to diagnose Cleopatra’s meningitis at the Baptist ER,

and UMMC’s inadequate care and treatment by numerous hospital physicians and nurses

during her hospitalization, negligently caused Cleopatra’s death.15

¶13.   Littleton designated Dr. David Wiggins as an expert in each of her three designations




       13
            “Nonsuppurative” means inflammation without the production of pus.
       14
        Prior to trial, Littleton settled with Baptist, and each individual physician-defendant
was dismissed, leaving UMMC as the sole defendant at trial.
       15
         At trial, Littleton’s theory of negligence focused on the UMMC medical staff’s
alleged breach of the standard of care by not admitting Cleopatra to the intensive-care unit
(ICU) once she was diagnosed with meningitis.

                                              8
of expert testimony.16 Dr. Wiggins’s curriculum vitae shows he is a board-certified ER

physician, but notably not an internal-medicine or infectious-disease specialist. Dr. Wiggins

opined in his first and second designations that the negligence of the nurses and physicians

at UMMC proximately caused Cleopatra’s death. In his third designation, Dr. Wiggins

disclosed that he would testify that “if [Cleopatra] suffered from viral meningitis, then she

needed supportive care,” which was provided below the standard of care on the floor of the

general hospital. Dr. Wiggins also disclosed for the first time that he would testify that “had

[Cleopatra] been in the ICU, the deterioration of her condition, and her heart eventually

stopping, could have been promptly dealt with and avoided.” Dr. Wiggins concluded in the

third designation that but for “the negligence of the physicians (admitting doctor and others

Dr. Cassell) in failing to admit [Cleopatra] to the intensive care unit, . . . more likely than not

[Cleopatra] would have recovered but did not due to poor supportive care and lack of

monitoring by UMC medical staff.” UMMC notes, however, that there was no explanation

in this third designation of exactly what “supportive care” was lacking, specifically what the

standard of care was, or what treatment Cleopatra would have received in the ICU that

would have prevented her death.

¶14.   On May 14, 2012, a bench trial began. Witnesses testifying for the plaintiff included

Littleton herself, Cleopatra’s sister and brother, expert witnesses Dr. Wiggins and Patricia

Ross, and fact witness Fells. Littleton testified that all of the UMMC staff who treated



       16
         Littleton filed three expert designations, each naming Dr. Wiggins. The first and
second designations, filed in January 2011, contained similar opinions. The third
designation was filed in July 2011.

                                                9
Cleopatra were shocked by her sudden death. Cleopatra’s brother, Martin, also stated that

it was his understanding the UMMC physicians did not know why Cleopatra died – “[h]er

heart just stopped.” Fells maintained that the last time she checked on Cleopatra at 4:45 p.m.

she was alive; then at 5:10 p.m. she was found unresponsive.

¶15.   At trial, Dr. Wiggins was tendered, based on his education, experience, and training,

as an expert in both emergency medicine and as a hospitalist. UMMC objected to the

hospitalist designation because Dr. Wiggins had no regular experience in treating patients

on a hospital floor as opposed to the ER. The trial judge ruled Dr. Wiggins would be

accepted in both fields, but the judge would decide how much weight would be given to his

expert opinion.

¶16.   Dr. Wiggins testified that Dr. Neilson was negligent by not performing a lumbar

puncture at the Baptist ER, even though Cleopatra only had a severe headache, with no fever

or stiff neck. However, he stated that UMMC utilized the proper standard of care in

diagnosing Cleopatra when she arrived at the UMMC ER on February 21 by performing a

lumbar puncture. While he admitted Cleopatra was properly started on antibiotics, Dr.

Wiggins maintained she should have been admitted to the ICU or another unit where she

could receive “continuous monitoring.” Dr. Wiggins claimed that patients “are always

admitted to intensive care units when they are diagnosed with meningitis” in the ER.

(Emphasis added). Thus, Dr. Wiggins stated the UMMC ER physicians breached the

standard of care by not sending Cleopatra immediately to the ICU where she could be

closely monitored. Dr. Wiggins also testified that on February 23 at 1:30 p.m., when



                                             10
Cleopatra complained of blurred vision and tingling, the standard of care required the

treating physicians to send her to the ICU.

¶17.   Dr. Wiggins testified, over an objection, that Cleopatra’s cause of death was “lack

of adequate monitoring” on the hospital floor, not “direct complications of meningitis.” Dr.

Wiggins explained that direct complications from meningitis would be “something like a

brain stem herniation,” where the brain becomes so inflamed that it pushes into the spinal

canal and is crushed. Dr. Wiggins further testified that Cleopatra died from “some

complication of meningitis which could have been various things . . . . [I]t could have been

acidosis, it could have been sepsis, it could have been some cardiac arrhythmia that occurred

. . . .” Dr. Wiggins thought Cleopatra died because “what could have been corrected was

not even recognized until it was too late.” UMMC objected to the speculative nature of Dr.

Wiggins’s testimony, noting that Dr. Wiggins never articulated what could have been

corrected, or how it could have been corrected. Dr. Wiggins concluded that Dr. Neilson, and

all of Cleopatra’s treating physicians and nurses at UMMC, breached the standard of care,

and their negligence was the proximate cause of Cleopatra’s death.

¶18.   Littleton’s nursing expert, Ross, testified that, in her opinion, UMMC’s nursing staff

breached the standard of care several times regarding Cleopatra’s care both in the ER and

on the hospital floor. For example, she claims the nursing staff failed to follow the exact

physician’s orders by checking Cleopatra’s vital signs every five to seven hours, instead of

four hours, a few times. Also, they failed to have the pulse oximeter on continuously.

Finally, Fells did not call a physician at 4 p.m. Monday when she was notified that



                                              11
Cleopatra’s temperature had risen and blood pressure had dropped. Ross was surprised at

Cleopatra’s death and stated it was her experience that most patients with meningitis do not

die.

¶19.   After Littleton’s case-in-chief, UMMC moved for a judgment as a matter of law,

because there had been no testimony linking UMMC’s conduct to the death of Cleopatra.

UMMC argued that Dr. Wiggins’s testimony was improper and speculative because he failed

to identify what caused Cleopatra’s death, and how being admitted to the ICU would have

prevented her death. The trial court denied the motion.

¶20.   Testifying for UMMC were two of Cleopatra’s treating physicians (Dr. Cassell and

Dr. Wofford), pathologist Dr. Subramony, and expert witnesses Dr. Michael Studdard and

Dr. Deal. Dr. Cassell was accepted as an expert in internal medicine and medicine in

general. He explained that he was finishing an oncology fellowship at UMMC, which is

considered a subspecialty of internal medicine, in which he is board certified. In 2009, when

he treated Cleopatra, he was almost finished with his third year of residency training. He did

not believe any physician or the nursing staff breached the standard of care; Cleopatra was

treated properly for either viral or bacterial meningitis. He testified that there were no signs

or symptoms in Cleopatra’s clinical presentation that would have indicated she needed to

be placed in ICU. Even with her final set of vital signs at 4 p.m., an hour before she expired,

Dr. Cassell would not have placed her in ICU. If Cleopatra had developed sepsis, her blood

pressure would have dropped, and her heart rate would have been much higher, but her heart

rate was normal. He also thought Cleopatra’s blood pressure dropped due to the morphine.



                                              12
Dr. Cassell testified everyone who knew of Cleopatra’s case, let alone treated her, was

“dumbfounded” that she died; her death was not foreseeable.

¶21.   Dr. Deal was accepted as an expert in infectious diseases. Dr. Deal, a practicing

physician at St. Dominic’s Hospital who treats approximately fifty patients a year with

meningitis, opined Cleopatra’s meningitis was viral, although she could not specify which

virus. There was no evidence of bacterial meningitis from the cultures. Dr. Deal testified

that Dr. Neilson had no reason to suspect that Cleopatra had meningitis on February 20

because her only symptom was a severe headache. For the same reasons, a lumbar puncture

and admittance to the ICU on that day were not appropriate. By the time Cleopatra

presented at the UMMC ER, however, she had more symptoms of meningitis, and a lumbar

puncture was appropriate. Further, Dr. Deal testified that the antibiotics given in the

UMMC ER would not have affected the results of the blood culture taken early on in her

hospitalization, but may have impacted the autopsy results “quite a bit.” However, if

Cleopatra’s meningitis were viral, the administration and timing of antibiotics would have

had no impact with regard to her death – they would not have helped or hurt her. Dr. Deal

stated that patients do not usually die suddenly from either viral or bacterial meningitis, and

there were no signs or symptoms indicating Cleopatra was about to die. Finally, she

concluded that there was no evidence in Cleopatra’s chart that she needed to be in the ICU.

¶22.   Dr. Studdard, UMMC’s expert witness in emergency and family medicine, also

testified that there was nothing in Cleopatra’s medical records that showed that she ever

needed to be in the ICU until the point when her heart stopped; she was never in distress and



                                              13
there was no evidence of septic shock. Further, Cleopatra did not initially show any

symptoms that would have raised suspicions about meningitis for Dr. Neilson; however, her

symptoms were “markedly” changed when she presented to the UMMC ER. Dr. Studdard

did not consider Cleopatra’s change in vital signs on the day she died significant – the lower

blood pressure could have been attributed to receiving morphine. Further, Cleopatra’s

change in vital signs that day did not indicate she was in distress or shock. Dr. Studdard

found it unusual that Cleopatra declined and died so suddenly. Dr. Wofford also testified

that there was no indication Cleopatra needed to be admitted to the ICU. He, too, found her

death “sudden” and “unexpected.”

¶23.   Dr. Subramony testified that the cause of death was changed on the corrected autopsy

report to “meningoencephalitis, probably a viral etiology” from a bacterial etiology, due to

additional information from the CDC testing. The cultures taken failed to grow bacteria; so

it was her opinion the inflammation of Cleopatra’s meninges was not caused by bacteria.

The autopsy indicated the inflammation of Cleopatra’s brain was extensive. Dr. Subramony

testified that, upon examination, a cavity inside Cleopatra’s brain was “obliterated,” meaning

the walls of the cavity collapsed. The significance of this finding is that “the common cause

of this obliteration of the cavity is edema, that is, swelling of the brain.” Moreover, Dr.

Subramony stated the inflammation in Cleopatra’s brain went beyond the meninges, which

cover the brain, to the area of the brain that is close to the meninges, or the “subarachnoid

space.” The autopsy showed this space, which is usually empty, “was occupied by

inflammatory infiltrate.” She concluded “[t]hat means there’s been an inflammation of the



                                             14
meninges with all these cells spilling over into the space . . . [because] there is so much

inflammation.” The inflammatory cells spread into “the superficial cortex and in some areas

[of] the white matter” of the brain.

¶24.   The trial court determined in its findings of fact and conclusions of law that UMMC

breached its duty of care when Dr. Neilson failed to rule out meningitis and perform a

lumbar puncture when Cleopatra visited the Baptist ER on February 20. Additionally, the

trial court found Cleopatra’s care “abysmal” on UMMC’s hospital floor. The trial court

concluded Dr. Wiggins’s opinion that Cleopatra “suffered complications from meningitis

[and that] her death was proximately caused by a lack of monitoring of her condition by

UMMC staff” was “supported by the evidence.” While UMMC claimed Cleopatra had viral

meningitis that only warranted the supportive care of fluids, rest, and monitoring, the court

found persuasive Dr. Wiggins’s opinion that “regardless of whether her meningitis was

bacterial or viral, [Cleopatra] should have been placed in ICU where she could have been

more closely monitored, and if she had been in ICU, her death could have been prevented.”

The trial court stated that “even if one were to believe” that Cleopatra suffered from viral

and not bacterial meningitis, and her condition did not warrant being treated in the ICU,

UMMC breached its standard of care several times. For example, the nurses did not advise

physicians of changes in Cleopatra’s conditions, they did not follow physicians orders such

as having a pulse oximeter in operation at all times, and physicians were not notified at 4

p.m. Monday when Cleopatra’s vital signs changed. The trial court found approximately

$1.6 million in total damages, entitling Littleton to $500,000 under section 11-46-15(1)(c).



                                             15
¶25.   UMMC timely appealed, raising the following issues: (1) the trial court improperly

allowed Dr. Wiggins, an ER physician, to testify about the standard of care for a hospitalist

and for ICU care because he was not qualified to do so; (2) Dr. Wiggins was improperly

allowed to testify about Cleopatra’s cause of death, in contradiction to the autopsy reports,

when he had no training, education, or experience in pathology; (3) the trial court should

have granted a directed verdict when the evidence on causation and Cleopatra’s chance of

recovery was speculative; and (4) the trial court’s judgment was not based on substantial

credible evidence because Littleton failed to provide competent expert testimony on the

issue of causation.

                               STANDARD OF REVIEW

¶26.   A reviewing court affords a circuit judge sitting without a jury the same deference as

a chancellor for findings of fact, which is the abuse of discretion standard. Ill. Cent. R.R.

v. McDaniel, 951 So. 2d 523, 526 (¶7) (Miss. 2006) (citations omitted). “Abuse of

discretion is found when the reviewing court has a ‘definite and firm conviction’ that the

court below committed a clear error of judgment [in] the conclusion it reached upon a

weighing of the relevant factors.” Id.

¶27.   Additionally, the standard of review for the trial court’s admission or exclusion of

evidence, including expert testimony, is abuse of discretion. Tunica Cty. v. Matthews, 926

So. 2d 209, 212 (¶5) (Miss. 2006) (citation omitted). The reviewing court will not overturn

the decision of the trial court on an evidentiary issue unless the trial court abused its

discretion, meaning the decision was arbitrary or clearly erroneous. Barrow v. May, 107 So.



                                             16
3d 1029, 1034 (¶10) (Miss. Ct. App. 2012) (citation omitted). Regarding the admissibility

of expert witness testimony, “the trial judge is to act as a gatekeeper, ensuring that expert

testimony is both relevant and reliable.” Poole v. Avara, 908 So. 2d 716, 723 (¶15) (Miss.

2005) (citation omitted). This standard is not relaxed when the trial judge serves as the

finder of fact. See, e.g. Univ. of Miss. Med. Ctr. v. Lanier, 97 So. 3d 1197, 1201 (¶15)

(Miss. 2012) (finding error in denying UMMC’s motion for directed verdict in wrongful-

death medical-malpractice case with bench trial because expert’s opinion was not based on

reasonable degree of medical probability regarding cause of patient’s death).

                                        ANALYSIS

¶28.   UMMC argues that the trial court’s judgment was not based on substantial credible

evidence because Littleton, through her expert Dr. Wiggins, failed to provide sufficient

evidence on causation. We agree.

¶29.   To establish a prima facie case of medical malpractice, the plaintiff must prove:

       (1) the existence of a duty by the defendant to conform to a specific standard
       of conduct for the protection of others against an unreasonable risk of injury;
       (2) a failure to conform to the required standard; and (3) an injury to the
       plaintiff proximately caused by the breach of such duty by the defendant.

Hubbard v. Wansley, 954 So. 2d 951, 956-57 (¶12) (Miss. 2007) (citing Drummond v.

Buckley, 627 So. 2d 264, 268 (Miss. 1993)). The plaintiff must provide expert testimony

articulating “the requisite standard that was not complied with,” and “also establish that the

failure was the proximate cause, or proximate contributing cause.” Id. at 957 (¶12) (quoting

Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992)). For “the proximate-cause element,

the plaintiff must introduce evidence which affords a reasonable basis for the conclusion that

                                             17
it is more likely than not that the conduct of the defendant was a cause in fact of the result.

A mere possibility of such causation is not enough.” Barrow, 107 So. 3d at 1034 (¶11)

(quoting Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987)). “In cases alleging that

death was caused by the negligence of a health care provider, proximate cause must be

established by a medical doctor.” Mariner Health Care Inc. v. Estate of Edwards ex rel.

Turner, 964 So. 2d 1138, 1144 (¶8) (Miss. 2007) (citation omitted). Finally, it is well

established that if a plaintiff fails to produce sufficient admissible evidence to establish a

prima facie case, a judgment notwithstanding the verdict is appropriate. Cleveland v.

Hamill, 119 So. 3d 1020, 1024 (¶14) (Miss. 2013) (citing 3M Co. v. Johnson, 895 So. 2d

151, 167 (¶46) (Miss. 2005)).

¶30.   The admission of expert testimony is governed by the two-prong inquiry of Rule 702

of the Mississippi Rules of Evidence. “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 witness has applied the principles and methods reliably to the facts

of the case.’” Hubbard, 954 So. 2d at 957 (¶13) (quoting M.R.E. 702). The trial court has

a “gatekeeping responsibility to ensure that any and all scientific testimony is not only

relevant, but reliable.” McDaniel v. Pidikiti, 39 So. 3d 952, 956 (¶9) (Miss. Ct. App. 2010)

(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).

¶31.   In finding UMMC liable for Cleopatra’s death, the trial court based the majority of



                                              18
its ruling on Dr. Wiggins’s expert testimony. Although Littleton tendered Nurse Ross as an

expert witness on the alleged breach of the standard of care by UMMC employees, Dr.

Wiggins was Littleton’s only expert witness on causation. Further, because Cleopatra’s

specific cause of death was unknown, Dr. Wiggins could not establish, except through

speculation, what UMMC medical staff could have done to save her life. It was his opinion

that Cleopatra’s death was caused by the alleged failure to send her to the ICU where she

would have been more closely monitored. We find, though, that Dr. Wiggins failed to

establish a causal connection between UMMC’s alleged negligence and Cleopatra’s death

because his testimony was impermissibly based on speculation. We shall discuss Dr.

Wiggins’s cause-of-death testimony and standard-of-care testimony in turn.

                               Cause-of-Death Testimony

¶32.   Because the specific cause of Cleopatra’s death was unknown according to the final,

corrected autopsy report, Dr. Wiggins’s testimony could not specify with any certainty what

measures medical personnel could have taken to save her. While expert testimony need not

conclusively establish the cause of death, expert causation testimony must, at a minimum,

show that deviations from the standard of care caused or contributed to the decedent’s death.

Mariner, 964 So. 2d at 1144 (¶8) (citations omitted).

¶33.   UMMC cites to Worthy v. McNair, 37 So. 3d 609 (Miss. 2010), a medical-

malpractice and wrongful-death case, as analogous regarding contradictory evidence as to

cause of death. In Worthy, the physician-expert witness testified about the infant’s cause of

death in contradiction to the autopsy report performed by an expert pathologist. Id. at 613



                                             19
(¶10). The Mississippi Supreme Court affirmed the trial court’s determination that the

expert witness’s testimony was inadmissible not only because he was testifying outside of

his particular discipline, but also because the autopsy report his opinion relied upon reached

an inconclusive result. Id. at 616-17 (¶24). As in Worthy, the autopsy report Dr. Wiggins

relied upon reached an inconclusive result regarding Cleopatra’s cause of death.

¶34.   Testimony and medical records show that Cleopatra more likely than not had viral

meningitis, which is usually much less deadly than bacterial meningitis. However, according

to the autopsy report, Cleopatra did not die directly from meningitis because her meninges

did not rupture. Dr. Wiggins agreed, stating she “did not die from direct complications of

meningitis.” He also agreed that the exact cause or mechanism of her death was unknown,

testifying that Cleopatra died of “some complication of meningitis.” He stated:

       [T]he way I would fill out a death certificate on this particular case, would be
       that the person died of cardiac arrest secondary to some things which were
       secondary to meningitis, basically. . . . [W]e have a pathology report, which
       variously attributes to either bacterial or viral meningitis . . . . [I]t’s not really
       that significant whether it’s one or the other in this particular case because the
       care was lacking at a more fundamental level. But we know that the patient’s
       heart stopped beating and . . . there’s an important point to make here . . . that
       the person died because of the lack of the monitoring. She didn’t die from
       direct complications of meningitis. That would be something like a brain stem
       herniation or something. If the brain became so inflamed that it was actually
       pushed into the spinal canal and crushed. That could happen but it didn’t
       happen in this case. The person died of some complication of meningitis
       which could have been various things. That’s why when I said how I’d fill
       out the death certificate I left a middle empty. It could have been acidosis, it
       could have been sepsis, it could have been some cardiac arrhythmia that
       occurred as a complication.

However, since he could not identify which possible complication of meningitis caused

Cleopatra’s heart to stop, his opinion that the ICU would have saved her life is mere

                                                20
speculation and insufficient to establish causation. He needed to establish, to a reasonable

degree of medical probability, the causal link between the hospital’s failure to properly care

for Cleopatra and the cause of the injury. He failed to do so.

                                 Standard-of-Care Testimony

¶35.   The trial court relied on Dr. Wiggins’s testimony on the standard of care, to the

exclusion of all of the other physician-expert testimony presented at trial. Dr. Wiggins was

accepted as an expert in emergency medicine, but UMMC objected to his admission as a

hospitalist because he had only treated an occasional patient with meningitis on the hospital

floor, and the majority of his experience was in treating patients with meningitis in the ER

only, before they were sent to the hospital. UMMC notes Dr. Wiggins was also not

experienced in intensive care outside of the ER setting, had never treated anyone in

Cleopatra’s condition in the ICU, and had no residency or subspecialty in critical or

intensive care; therefore, he was unqualified for testifying about the standard of care for

Cleopatra’s hospital stay.

¶36.   Dr. Wiggins testified that UMMC breached the standard of care as follows: Dr.

Neilson’s not performing a lumbar puncture at the Baptist ER;17 not admitting Cleopatra to

the ICU once she was diagnosed with meningitis; and not sending Cleopatra to the ICU

when her condition changed February 23. Dr. Wiggins testified that if Cleopatra had been

in the ICU, those physicians and nurses would have noticed Cleopatra’s declining condition,

because she would have been more carefully monitored, and would have been provided



       17
            The alleged breach of this standard of care is not addressed in the appellate briefs.

                                                21
treatment to prevent her death. However, he did not specify the exact nature of her declining

condition, or the exact treatment the ICU could have provided to save her life, besides

“monitoring.” He also did not state what type of specialists would have been called in to

treat Cleopatra in the ICU. UMMC expert-witness physicians Dr. Cassell, Dr. Deal, Dr.

Studdard, Dr. Subramony, and Dr. Wofford all testified that the hospital and the physicians’

standard of care was met.

¶37.   UMMC cites Griffin v. North Mississippi Medical Center, 66 So. 3d 670 (Miss. Ct.

App. 2011), a “loss of chance of recovery” case, as instructive regarding physician/expert-

witness testimony to establish causation.18 In Griffin, this Court affirmed a directed verdict

in favor of the hospital. Id. at 671 (¶1). The decedent had undergone surgery to place a

catheter in her jugular vein for dialysis. The surgeon inadvertently punctured the patient’s

carotid artery, attempted to repair it, placed the catheter in the jugular vein, and transferred

her to a recovery room under the care of nurses. Id. at 672 (¶2). In the recovery room, the

patient’s blood pressure and volume dropped, consistent with internal bleeding due to an

ineffectively repaired carotid artery. Her condition deteriorated, and she went into cardiac



       18
          “To establish the element of proximate cause where the allegation is that a medical
provider failed to administer proper care and that the failure allowed an already existing
injury to deteriorate, the plaintiff must prove that had proper care been administered, then
it is probable, or more likely than not, that a substantially better outcome would have
resulted.” Stated another way, “the plaintiff must show that, absent malpractice, there is a
greater than fifty-percent chance that a substantially better result would have followed.”
Griffin, 66 So. 3d at 673 (¶9) (citing Hubbard, 954 So. 2d at 964 (¶9)). “Mississippi case
law generally requires the plaintiff to employ expert testimony in making this showing.”
Drummond, 627 So. 2d at 270. “This ‘greater than fifty percent’ opinion must be backed
up by specific facts.” King v. Singing River Health Sys., 158 So. 3d 318, 324 (¶26) (Miss.
Ct. App. 2014) (citing Hubbard, 954 So. 2d at 965-66 (¶48)).

                                              22
arrest before the artery could be repaired; she passed away several days later. Id. at (¶3).

The plaintiffs claimed that if the nurses had noticed her worsening condition sooner, a

surgeon could have intervened sooner and saved her life. Id. at (¶6). The plaintiffs offered

the expert testimony of a family- and emergency-medicine physician, who was not a

surgeon. Id. at 673 (¶13). He testified regarding causation that the hospital proximately

caused her death by failing to recognize her blood loss. Id. at 673-74 (¶13). However, he

did not testify as to what a surgeon would have done once notified of the blood loss, or the

chance of success if the surgeon had timely intervened. Further, since he was not a surgeon,

any testimony on these matters would have drawn an objection. Id. at 674 (¶13). The trial

court found the physician’s testimony insufficient to create a jury question on proximate

cause. Id. at (¶14).

¶38.   Similarly, Dr. Wiggins testified that UMMC’s physicians and staff negligently failed

to recognize Cleopatra’s worsening condition on February 23, because her temperature had

elevated through the day, and at 4 p.m. her blood pressure had dropped. However, he did

not identify what care should have been provided and how that care, more likely than not,

would have allowed Cleopatra to survive. Dr. Wiggins also failed to explain how UMMC’s

failure to provide supportive care or transfer Cleopatra to ICU caused or contributed to her

death. He merely alleged that the standard of care for meningitis is to place the patient in

the ICU; with proper monitoring, the ICU would have been aware Cleopatra suffered cardiac

arrest19 and could have somehow resuscitated her. However, to prove causation, Dr.

       19
       It is true that if turned on, Cleopatra’s pulse oximeter would have sounded an alarm
when her heart stopped, but it did not. The alarm may have alerted nurses sooner to

                                            23
Wiggins needed to testify not only as to what procedures would have saved Cleopatra’s life

from cardiac arrest, but also that there was a fifty-one percent or greater chance she would

have had a better outcome had these unknown procedures been performed. Moreover, there

is no evidence that the unnamed lifesaving procedures would have been successful, because

Cleopatra may well have died anyway from the unknown underlying cause of the cardiac

arrest. Treatment in the ICU does not guarantee survival; it was mere speculation that ICU

care would have changed Cleopatra’s outcome, much less increased her probability of

survival beyond fifty percent. We cannot find that Dr. Wiggins’s testimony met the lost-

chance-of-recovery standard.

                                      CONCLUSION

¶39.   We find the trial court abused its discretion in relying upon Dr. Wiggins’s speculative

testimony in order to find UMMC liable for Cleopatra’s death. Dr. Wiggins claimed that

admitting Cleopatra to the ICU would have saved her life from an unknown cause of death.

Yet he offered no specifics on the treatment that she would have received, and how

monitoring would have saved her life. Moreover, under the “lost chance of recovery”

theory, Dr. Wiggins did not offer sufficient evidence to show that, absent malpractice, there

was a greater than fifty-percent chance that a substantially better result would have occurred

had Cleopatra been admitted to the ICU. Accordingly, we reverse the judgment and render

in favor of UMMC.



Cleopatra’s cardiac arrest. However, UMMC physicians did order one for her when she was
admitted to the hospital. It is unclear from the record why the oximeter was on “stand-by”
Sunday and early Monday morning.

                                             24
¶40. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEE.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. CARLTON AND JAMES, JJ., NOT PARTICIPATING.




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