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Malpractice for Injecting Epinephrine Dismissed; Failure to Prosecute


A man was scheduled to undergo back surgery. Prior to the surgeon entering the operating room, a nurse anesthetist injected the man with the drug epinephrine, which was contraindicated, under the mistaken impression that the syringe containing another drug for anesthesia. The syringe had actually been used in another procedure using epinephrine. As a result of the injection of epinephrine, the man suffered an immediate heart attack in the operating room.

 

The man sued the nurse anesthetist and the nurse’s employer for medical negligence.

 

The nurse anesthetist filed an answer to the complaint. The nurse anesthetist asserted that the injuries suffered by the man were caused by the acts or omissions of third parties.

 

No activity occurred on the case for 21 months. At that point, the trial court sent a trial calendar notice to the man, the nurse anesthetist, and the nurse’s employer. A month later, the nurse anesthetist filed a motion to dismiss for failure to prosecute. A month after that, the trial court sent the man, the nurse anesthetist, and the nurse’s employer a notice setting trial for eight months later. A month after receiving the notice setting trial, the man propounded discovery to the nurse anesthetist. In the following months, the man responded to the nurse anesthetist’s motion to dismiss.

 

The Lamar County Circuit Court dismissed the claim against the nurse anesthetist for failure to prosecute. The trial court did not dismiss the claim against the nurse anesthetist’s employer. The man sought a default judgment against the nurse anesthetist’s employer. The trial court entered judgment of default and damages against the employer. The trial court found that the employer had failed to file an answer or enter an appearance after receiving proper service of process. Based on hearing testimony and evidence, the trial court held that the man had sustained $500,000 in noneconomic damages, $250,000 in medical expenses, and $520,000 in lost income over eight years. The trial court consequently awarded the man a $1,270,000 judgment against the nurse anesthetist’s employer.

 

The man appealed dismissal of the claim against the nurse anesthetist.

 

The Court of Appeals of Mississippi affirmed. The court held that the trial court’s finding that a clear record of delay and dilatory conduct warranted the dismissal of the man’s claim against the nurse anesthetist was supported by the almost two years the man failed to prosecute the action against the nurse anesthetist and the trial court did not abuse its discretion in dismissing the case with prejudice because the dismissal served the best interests of justice.

 

The trial court’s finding that a clear record of delay and dilatory conduct warranted the dismissal of the man’s claim against the nurse anesthetist was supported by the almost two years the man failed to prosecute the action against the nurse anesthetist. In the almost two-year period following the filing of the complaint, the man submitted no discovery requests to the nurse anesthetist. The man disclosed no expert witnesses to support the medical-malpractice claim. The man failed to begin discovery until well beyond the regulatory deadlines. The man’s response to the nurse anesthetist’s motion to dismiss was reactionary and not within the 10-day regulatory time limit. The man propounded no discovery until almost two years after the nurse anesthetist answered the amended complaint and more than two months after the nurse anesthetist filed the motion to dismiss for failure to prosecute. The man failed to move for any continuances for additional time to conduct discovery. The court concluded that the record showed no abuse of discretion by the trial court’s dismissal for failure to prosecute.

 

The trial court did not abuse its discretion in dismissing the case with prejudice because the dismissal served the best interests of justice. A showing of delay is sufficient for a dismissal for failure to prosecute when a lesser sanction would not serve the best interests of justice. Based on the clear record of delay and reactionary conduct the man displayed in this case, the court found no abuse of discretion in the trial court’s dismissal with prejudice because it served the best interest of justice.

 

The Court of Appeals of Mississippi affirmed the trial court’s grant of the nurse anesthetist’s motion to dismiss for failure to prosecute.

 

See: Havard v. Sumrall, 2017 WL 5152208 (Miss.App., November 7, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See also Medical Law Perspectives Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

 

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