Gerald Lander v. Singing River Hospital System
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-02345-COA
GERALD LANDER
APPELLANT
v.
SINGING RIVER HOSPITAL SYSTEM;
OCEAN SPRINGS HOSPITAL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/3/2004
HON. KATHY KING JACKSON
JACKSON COUNTY CIRCUIT COURT
SUSANNAH ROSS COOLEY
DAVID A. BOWLING
HOWARD LAMOYNE SMITH
BRETT K. WILLIAMS
THOMAS L. MUSSELMAN
CIVIL - MEDICAL MALPRACTICE
VERDICT FOR APPELLEE
AFFIRMED - 07/18/2006
BEFORE LEE, P.J., SOUTHWICK AND ISHEE, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Gerald Derrick Lander filed suit against Ocean Springs Hospital and Singing River Hospital
System pursuant to the Mississippi Tort Claims Act due to injuries sustained while Lander was being
treated at Ocean Springs Hospital (the Hospital). Lander alleged that the Hospital’s staff negligently
managed his intravenous therapy, resulting in sepsis, surgery and nerve damage.
¶2.
Pursuant to the Mississippi Tort Claims Act, a bench trial was held. See Miss. Code Ann.
Sections 11-46-1 through 23 (Rev. 2002). After considering the evidence and the arguments
submitted by counsel, the trial court entered a judgment in favor of the Hospital.
¶3.
It is from this ruling that Lander appeals arguing the following, which we quote verbatim:
(1) whether the deferential standard of review of the trial judge’s findings is grounds
to affirm the ruling that there were no deviations from the standard of care where
multiple deviations are established by simply comparing the care documented by the
Hospital to the admitted standards for that care; (2) whether the trial court was
manifestly wrong and clearly erroneous in finding that there was no violation of the
requirements that the tubing and site location be changed every seventy-two hours;
(3) whether the trial court’s failure to find that the IV which caused the infection had
been in the antecubital fossa long over the seventy-two hour limit was manifestly
wrong and lacked substantial evidentiary support; (4) whether the trial court’s ruling
ignored the gross misconduct of the nurse tending to Gerald Lander once the problem
with the IV surfaced; and (5) whether the trial judge’s ruling that there was no injury
caused by deviations from the standard of care lacks substantial evidentiary support,
is manifestly wrong and is erroneously based on evidence which merely pertained to
the extent of the injury.
¶4.
The thrust of Lander’s five assignments of error can be framed as follows: whether the trial
court’s findings of fact and conclusions of law are manifestly wrong and clearly erroneous. Finding
no error, we affirm.
FACTS
¶5.
On August 21, 2000, Lander sought emergency medical treatment at Ocean Springs Hospital
for abdominal pain. Lander was admitted to the Hospital and remained there until he was discharged
on September 8, 2000. Lander’s pain was attributed to ulcers, and as part of his treatment he
received an intravenous line.
¶6.
Throughout his treatment Lander received four IVs. The first was inserted into his right
antecubital fossa, or crease in the inner elbow of the right arm. This IV was removed on August 24,
when a second IV was inserted into Lander’s left forearm. This IV was removed the next day and
a third IV was inserted into Lander’s left inner arm, where it remained until August 26. Lander’s
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fourth IV was placed in his upper right arm on August 26. This IV remained in place for
approximately ninety-six hours.
¶7.
At 8:25 the morning of August 30, Jennifer Green, one of the Hospital’s registered nurses,
made a note on Lander’s chart that his IV site was slightly red. Green testified that at 10:15 that
morning Lander again complained about his arm, which was red and sore when touched. Green
testified that she removed the IV and unsuccessfully attempted to reinsert an IV in another area.
Green, as well as other nurses from the Hospital, testified that she had previously had difficulty
inserting an IV in Lander. At 1:30 that afternoon, Lander registered a fever of 100.9 degrees. At
6:00 p.m. Lander registered a fever of 103.6, and Green contacted Dr. John McKee, who was making
rounds at the Hosptial. The following day, Dr. Okechukwu Ekenna diagnosed Lander with right
antecubital vein thrombosis and abscesses.
¶8.
On September 1, Lander underwent surgery to drain the abscess and reconstruct the vein in
his right arm. Lander filed suit against the Hospital, alleging that he sustained nerve damage due to
the abscess and subsequent surgery.
STANDARD OF REVIEW
¶9.
“A circuit court judge sitting without a jury is accorded the same deference with regard to
his findings as a chancellor,” and the judge’s findings are safe on appeal where they are supported
by substantial, credible, and reasonable evidence. Puckett v. Stuckey, 633 So. 2d 978, 982 (Miss.
1993). This Court will respect the lower court’s findings of fact when they are supported by
reasonable evidence in the record and are not manifestly wrong. Allied Steel Corp. v. Cooper, 607
So. 2d 113, 119 (Miss. 1992). Additionally, when sitting as the finder of fact, the trial judge has the
sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So. 2d 867,
870 (Miss. 1994).
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DISCUSSION OF THE ISSUE
I. ARE THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
MANIFESTLY WRONG AND CLEARLY ERRONEOUS?
¶10.
In a medical malpractice action, the plaintiff bears the burden of proof and must show the
defendant’s negligence by a preponderance of the evidence. Powell v. Methodist Health Care
Jackson Hosps., 856 So. 2d 353, 355 (¶11) (Miss. Ct. App. 2003). To succeed in his case, Lander
must prove four elements. First, he must prove that the defendant had a duty to act in accordance
with “a standard of reasonable care so as to prevent injury to a foreseeable plaintiff.” Boyd v. Lynch,
493 So. 2d 1315, 1319 (Miss. 1986). Second, the plaintiff must then prove that the defendant failed
to conform to the appropriate standard of care, also known as “the breach of duty” to the plaintiff.
Id. Third, the plaintiff must prove that this breach proximately caused his injury. Id. Finally, the
plaintiff must prove that he suffered actual harm or injury as a result of the defendant’s negligent
conduct. Id.
¶11.
The trial court found that Lander failed to prove that the Hospital breached its duty to him.
Lander points to the Hospital’s “Peripheral IV Therapy Clinic Practice Guideline,” which instructs
the nurse to “[p]erform site care and tubing change (primary and secondary) [every] 72 hrs.” Lander
argues that the Hospital was negligent in leaving IV number four in his arm for approximately
ninety-six hours, resulting in infection and necessitating surgery.
¶12.
We disagree. There was testimony that nurses must use discretion in deciding whether to
remove an IV, as the veins of some patients, such as Lander, were difficult to puncture. Tom Meyer,
Lander’s expert witness on nursing, testified in his deposition that there were “circumstances where
a nurse would be prudent to change [an IV] out at seventy-two hours, and there [were] circumstances
where a nurse might find it prudent to leave it in as long as ninety-six [hours].” Meyer agreed that
such a decision would be left to the judgment of the nurse.
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¶13.
Mandy Lewis also testified as an expert in the field of nursing. Lewis noted that the nurses
were repeatedly unable to insert the necessary IVs into Lander’s arms, and the nurses had to use a
smaller gauge needle than was usually used on patients of Lander’s age, health and weight. Lewis
further testified that a nurse should not automatically remove an IV simply because it had been used
for seventy-two hours, as futile attempts to reinsert the IV would cause patient discomfort. During
his deposition Dr. Ekenna testified that seventy-two hours was a guideline, subject to the patient’s
veins and the nurse’s site inspections and site care.
¶14.
Lander argues that the nurses failed to document site care and tubing changes, thus it should
be presumed that such care did not occur. This argument lacks support in the law as well as the facts
of this case. Green testified that the nurses would often change the tubing on the IV and mark the
tubing with a bright marker indicating the time and date that the new tubing was installed. Green
testified that every tube change was not indicated on patient charts because the nurses would use the
colors on the tubing to indicate when the tubing should be replaced. The trial court found this
testimony to be persuasive.
¶15.
Contending that the record supports a finding that IV number four was the source of the
infection, Lander next argues that the court erroneously found that IV number one was the source
of the infection. Dr. Brian Pitre, who operated on Lander’s vein, testified that infections usually
originate from sites “further upstream.” Dr. William Knight, Lander’s physiatrist, testified that
venous drainage “typically goes up as opposed to down.” Dr. Ekenna stated during his deposition
that, depending on the patient’s ability to fend off infection, abscesses usually appear as early as two
days or as late as two weeks after a puncture. Dr. Ekenna further testified that it “would be very
unusual . . . unless you injected dirt” for an abscess such as Lander’s to develop within a matter of
hours. We cannot agree that the court’s finding that the abscess resulted from IV number one, which
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was removed six days prior to the appearance of the abscess, lacks substantial, credible, reasonable
evidence.
¶16.
Lander further argues that, even if IV number one produced the abscess, the court erred in
failing to find that the Hospital was negligent in treating the infection. This assertion is simply not
supported by the record before this Court. Dr. Ekenna testified that both phlebitis and abscesses are
risks of intravenous therapy. Nurse Green’s notes indicate that when she removed the fourth IV, the
site had yellow drainage, she applied a band-aid and elevated Lander’s arm in accordance with her
training and Hospital policy. Lander argues that the drainage should have alerted Green to the
presence of an infection. Dr. Randy Roth testified that the drainage was probably serous fluid and
not pus, as pus tends to be white and serous fluid is yellow. Dr. Roth also testified that serous fluid
is not indicative of an infection. Dr. Roth testified that infection is a risk of IV therapy, and the
development of an infection does not indicate a deviation from the standard of care. The record
supports the trial court’s conclusions, and we decline to find that the trial court’s findings lack
credible evidence.
¶17.
The trial court concluded that Lander had failed to prove that the treatment he received was
the proximate cause of his alleged injuries. Dr. Knight was the only witness who attributed Lander’s
pain to the IV treatment at the Hospital, and this was based upon Lander’s assertion that he had
suffered a nerve injury because the Hospital staff left the IV in his arm in excess of seventy-two
hours.
¶18.
Notably, Lander was involved in an automobile accident in 2004 and sought treatment from
Dr. Cesar Rocca, a physician in Alabama. Lander did not inform Dr. Rocca of the pain, tingling and
numbness which he attributed to the surgery, and Dr. Rocca’s examination of Lander’s arm did not
reveal any such symptoms. The record reflects that Lander has a long history of securing pain
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medications from multiple doctors at the same time. Numerous doctors indicated that Lander
exhibited the behavior of a person who sought drugs for non-medical reasons. As the trier of fact,
a trial judge sitting without a jury determines the credibility of witnesses. Yarbrough, 645 So. 2d
at 870. The trial court obviously found Lander’s testimony to be unpersuasive, and such a finding
rested within its discretion.
¶19.
We cannot agree that the trial court’s findings lack substantial, credible evidence. As such,
we affirm.
¶20. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
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