When Evidence of Standard of Care is Inadmissible, JNOV Required

A man was admitted to the Central Mississippi Medical Center, complaining of severe abdominal pain. A gastroenterologist treated the man for gastrointestinal bleeding, and a cardiovascular surgeon surgically repaired his ulcer. After approximately one week, the man was discharged. The next morning, the man returned to the hospital complaining of further stomach pain and bleeding. Surgery revealed a second ulcer, which had eroded a large blood vessel, and precipitated the man's death.


The man’s estate sued the gastroenterologist, cardiovascular surgeon, and health care facility. During discovery, the estate's medical expert—a thoracic and cardiovascular surgeon—opined that the man's doctors deviated from the standard of care by failing to prescribe anti-ulcer medication upon discharge and allowing the second ulcer to develop post-discharge. At trial the estate’s medical expert admitted he later became aware that the doctors had prescribed such medication. But he had developed a new theory of the doctors' malpractice, opining over objection that, because the second ulcer was developing while the man was in the hospital, the doctors should have discovered it prior to his discharge. The estate presented no additional expert testimony.


At the close of the estate's case-in-chief, the circuit court denied a motion for a directed verdict by the gastroenterologist, but granted a directed verdict in favor of the health care facility except for any vicarious liability it had through the cardiovascular surgeon. The jury returned a verdict in favor of the man’s estate against all three defendants, and the Hinds County Circuit Court denied their motions for judgment notwithstanding the verdict (JNOV).


The Court of Appeals reversed and remanded for a new trial. The Court of Appeals held that the estate’s medical expert, as a thoracic and cardiovascular surgeon, was not qualified as an expert in the standard of care with regard to the gastroenterologist. Reasoning that the estate’s medical expert was the only expert the estate put forth and he was unqualified to testify against the gastroenterologist, the Court of Appeals found that the estate could not establish a prima facie case of medical malpractice and rendered judgment in favor of the gastroenterologist. Because the health care facility was only vicariously liable for any negligence of the gastroenterologist, the Court of Appeals rendered judgment in its favor.


The Court of Appeals also held that the circuit court had abused its discretion by overruling the objection to the estate’s medical expert's previously undisclosed testimony regarding his new theory of the doctors' malpractice. The Court of Appeals remanded the case for a new trial against the cardiovascular surgeon.


The Supreme Court of Mississippi reversed the judgment of the Court of Appeals in part and reversed the judgment of the circuit court, and rendered judgment in favor of all of the defendants. The court found that the trial judge erred in allowing the estate’s medical expert to testify to undisclosed opinions. Because the estate failed to establish a prima facie case with admissible evidence, the trial judge erred in failing to grant all three defendants’ motion for JNOV. The court found that the Court of Appeals erred by remanding for a new trial against the cardiovascular surgeon, rather than rendering a judgment in his favor.


The court held that the failure to produce a competent medical expert prohibits a medical malpractice plaintiff from bringing the case to trial. In every kind of case a JNOV is generally appropriate where the plaintiff has failed to produce sufficient admissible evidence to establish a prima facie case. The fact that the trial judge erroneously allowed inadmissible evidence into the record—whether expert testimony or otherwise—did not abrogate that rule.


The court reasoned that, a medical malpractice plaintiff may not use inadmissible evidence to establish the standard of care, or that a medical provider failed to comply with that standard of care. Here, the estate's only evidence of the standard of care or breach thereof was inadmissible. Accordingly, all of the defendants were entitled to JNOV.


See: Cleveland v. Hamil, 2013 WL 4027103 (Miss., August 8, 2013) (not designated for publication).