Conn v. United States, No. 3:2010cv00300 - Document 51 (S.D. Miss. 2012)

Court Description: ORDER Granting 46 Motion for Summary Judgment. A Final Judgment will be entered to memorialize this decision. Signed by District Judge Carlton W. Reeves on 07/24/2012 (WB)
Download PDF
ablishing a clearly defined national standard of care”). 47 Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 545, 784 N.E.2d 68 (2002). 48 Levine v. Rosen, 532 Pa. 512, 518-19, 616 A.2d 623, 628 (1992). See also Greathouse v. Rhodes, 242 Mich. App. 221, 227-28, 618 N.W.2d 106, 109 (2000) (plaintiff not permitted to use Guidelines as learned treatise to establish standard of care) (rev’d on other grounds, Greathouse v. Rhodes, 465 Mich. 885, 636 N.W.2d 138 (Mich. 2001)). 49 But see Causey v. Sanders, 998 So. 2d 393, 401 (Miss. 2008) (affirming in part jury verdict in which an expert witness “conceded that it would be a direct violation of the Hospice guidelines to hasten any patient’s death and that if titration of medication by a hospice led to a person’s death, that action would be a breach in the standard of care for a hospice setting”). 50 Frakes v. Cardiology Consultants, P.C., No. 01-A-01-9702-cv-00069, 1997 WL 536949 (Tenn. Ct. App. Aug. 29, 1997). 51 Hon. William C. Koch, Jr., is now an associate justice on the Tennessee Supreme Court. 10 “consensus standards of conduct that are both clearer and more rational than those currently used to identify professional negligence.”52 The guidelines, Judge Koch wrote, “should not necessarily be viewed as conclusive evidence of the standard of care,”53 but he conceded that “[t]hey can be extremely helpful in cases calling into question whether a physician chose the wrong course of diagnosis or treatment or should have gone further in attempting to understand or correct the situation.”54 At the very least, Judge Koch observed, these guidelines “are relevant to the question of the proper standard of care and should be admitted as substantive evidence if introduced through a witness who can lay a proper foundation.”55 The only guidance gleanable from Mississippi caselaw56 suggests that Mississippi courts are, under some circumstances, open to the idea of permitting expert witnesses to rely on clinical practice guidelines when enunciating a standard of care. Therefore, were this Court to hazard an Erie guess on the subject, it would follow Judge Koch’s suggestions and find that Mississippi law permits expert witnesses to rely on clinical practice guidelines if the conduct prescribed by those guidelines does indeed describe the specific actions that would be taken by a minimally competent physician. However, even under that standard, Conn could not defeat the Government’s motion for summary judgment. Even if Dr. Strong had not failed to identify a specific Guidelines 52 Frakes, 1997 WL 536949 at *6 (Koch, J., concurring). 53 Id. 54 Id. 55 Id. 56 Supra at n.54. 11 publication, and even if he had not failed to identify a specific suggestion contained within such a publication, he still would have failed to state that the conduct recommended by the Guidelines marked the standard of care of a minimally competent physician. Therefore, this final piece of Dr. Strong’s report, like all other aspects of the report, fails to establish the objective standard of care that the V.A. should have followed in treating Conn. CONCLUSION Because Conn has failed to produce an expert report that establishes an objective standard of care to which the V.A. should have adhered, he has failed to establish a prima facie case for medical malpractice. Therefore, the Government’s motion for summary judgment is granted. A Final Judgment will be entered to memorialize this decision. SO ORDERED this Twenty-Fourth day of July 2012. /s/ Carlton W. Reeves Hon. Carlton W. Reeves United States District Court Judge 12