Horace A. Ryals v. Phillip Bertucci
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-02190-COA
HORACE A. RYALS
APPELLANT
v.
PHILLIP BERTUCCI AND JOHN FINCH, D.O.
ET AL.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
05/30/2007
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
L. CHRISTOPHER BREARD
WILLIAM E. WHITFIELD
KIMBERLY DAWN SAUCIER ROSETTI
BRETT K. WILLIAMS
THOMAS L. MUSSELMAN
KELLY LARANN CASH LEE
CIVIL - MEDICAL MALPRACTICE
GRANTED MOTION FOR DIRECTED
VERDICT
AFFIRMED: 06/30/2009
BEFORE KING, C.J., GRIFFIS AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
On December 31, 2002, Horace A. Ryals (Horace) filed a complaint alleging
negligence on the part of Dr. Phillip Bertucci and Dr. John Finch. The matter proceeded to
trial. On May 30, 2007, the trial court granted the defendants’ motion for a directed verdict.
Aggrieved, Horace appeals, raising one issue: whether the trial court erred by directing a
verdict in favor of the defendants and by ruling that Horace failed to establish medical
negligence. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On May 28, 2002, Horace was attempting to use his pickup truck to drag a finger pier
onto the riverbank. The rope snapped and hit the back windshield of Horace’s pickup truck,
causing the back windshield to shatter. Glass sprayed into Horace’s face and eyes, causing
multiple cuts and bleeding. Horace was transported to the emergency room at the Memorial
Hospital in Gulfport, Mississippi for treatment.
¶3.
Dr. Finch examined Horace in the emergency room. Dr. Finch testified that Horace
complained of being struck in the face with a rope. From his examination, Dr. Finch
determined that Horace had multiple lacerations to the face, a frosted area to his left pupil,
fuzzy vision, and blood in his right eye – also known as a hyphema. Dr. Finch used an
ophthalmoscope and fluorescein dye to exam Horace’s eyes. He also inverted Horace’s
eyelids to check for glass. Dr. Finch did not record the results of either test in Horace’s
medical chart. However, he testified that there was a hyphema in Horace’s right eye, but he
could still see the pupil in the eye. Dr. Finch checked Horace’s visual acuity, and Horace
stated that he could only see red with a bright light in his right eye. Dr. Finch ordered an
x-ray of Horace’s eyes. Dr. Finch testified that looking at the x-rays, he did not see any
foreign bodies in Horace’s eyes.
¶4.
Dr. Finch called Dr. Bertucci, an ophthalmologist, and consulted with him as to a
recommendation for Horace’s care. Based on their conversation, Dr. Finch prescribed
Horace three different eye drop medications and a pain reliever. He put a patch over
Horace’s right eye and instructed Horace not to lie down during the night and to apply the
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eye drops as instructed. A follow-up examination was scheduled with Dr. Bertucci for the
following morning. Horace was instructed to return to the emergency room if he experienced
any problems during the night.
¶5.
Dr. Bertucci testified that Dr. Finch called him on May 28, 2002, at approximately
6:30 p.m. Dr. Bertucci testified that Dr. Finch told him that he had a patient with facial
lacerations around his eyes and a hyphema in his right eye. Dr. Bertucci testified that he
asked Dr. Finch questions about the size of the hyphema, Horace’s vision in his right eye,
and the pressure of the eye. Dr. Finch told Dr. Bertucci that he could still see Horace’s pupil
in Horace’s right eye and that Horace’s vision was blurry. Based on this information, Dr.
Bertucci assumed that Horace had a forty percent hyphema. Dr. Bertucci testified that Dr.
Finch was not able to obtain Horace’s pressure in his right eye. Dr. Bertucci testified that
Dr. Finch did not tell him that glass sprayed in Horace’s face. Dr. Finch also did not tell him
the results of the fluorescein exam. However, Dr. Bertucci testified that he did not inquire
about the results of the exam because he had enough information. Based on Dr. Finch’s
evaluation, Dr. Bertucci recommended that Dr. Finch shield Horace’s right eye and prescribe
medication in the form of eye drops.
¶6.
The following morning, Horace went to Dr. Bertucci’s clinic for his follow-up
examination. Dr. Bertucci testified that uveal tissue was leaking out of Horace’s eye. Dr.
Bertucci used a slit lamp to examine Horace and found a wound on Horace’s right eye. Dr.
Bertucci then pulled Horace’s lower eyelid down and was able to trace the leak back to the
wound found on Horace’s right eye. Dr. Bertucci recalled that Dr. Finch did not see a
foreign body in Horace’s eye when Dr. Finch looked at the x-ray. Dr. Bertucci testified that
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he was under the impression, after their conversation the night before, that Dr. Finch was
going to order a CAT scan of Horace’s eyes. However, no CAT scan was ordered. Based
on his examination, Dr. Bertucci was concerned that there was a foreign body in Horace’s
eye and ordered Horace to receive emergent evaluation and treatment from Dr. Laurence
Arend at Ochsner Health System (Ochsner) New Orleans, Louisiana.
¶7.
Horace went to Ochsner immediately to receive surgery on both of his eyes. Dr.
Arend found a piece of glass in Horace’s right eye and found scarring on the cornea in
Horace’s left eye. During the surgery, Horace suffered a retinal detachment in his right eye.
Today, Horace is practically blind in his right eye.
¶8.
On December 31, 2002, Horace filed a lawsuit against Dr. Finch and Dr. Bertucci,
alleging that the doctors’ negligent actions and omissions were the sole proximate cause or
the proximate contributing cause of the loss of vision in his right eye. Specifically, Horace
claimed that Dr. Finch failed to recognize the seriousness of his injuries and failed to
accurately report the injury to Dr. Bertucci. He also claimed that Dr. Finch was negligent
because he failed to order a CAT scan. Horace alleged that Dr. Bertucci was negligent in not
coming to the emergency room to evaluate him on the evening of the incident.
¶9.
The trial commenced in May 2007. Michelle Ryals (Michelle), Horace’s wife,
testified that Dr. Bertucci called them after Horace’s surgery to check on his progress.
Michelle testified that Dr. Bertucci said that “if we could have gotten him to Ochsner sooner,
this might have been better.” Dr. Bertucci denied having that conversation with Michelle.
¶10.
During the trial, Horace produced one expert witness – Dr. James Sutton, an
ophthalmologist. Dr. Sutton testified that Dr. Finch breached the standard of care because
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he failed to record full and accurate results of his examination of Horace; he failed to conduct
further examinations to rule out any foreign bodies in the eye; he failed to order a CAT scan;
and he failed to supply Dr. Bertucci with information pertinent to Horace’s care. Dr. Sutton
testified that Dr. Bertucci failed to ask Dr. Finch pertinent questions that would have allowed
him to properly assess Horace’s condition. Dr. Sutton testified that Horace’s condition was
misdiagnosed and that Horace received improper treatment. Based on Horace’s injury, Dr.
Sutton testified that Horace’s eye should have been closed immediately with a rigid shield,
and he should not have applied any pressure to his eye.
¶11.
Several times during his testimony, Dr. Sutton was asked whether the failure of the
doctors to timely diagnose Horace’s condition and the failure of the doctors to timely close
Horace’s eye caused the loss of vision in Horace’s right eye. Ultimately, Dr. Sutton testified
that the doctors’ misdiagnoses and Horace’s subsequent medical treatment probably caused
additional damage to Horace’s eye. However, Dr. Sutton was not able to measure how much
additional damage was caused. Dr. Sutton testified that he did not know what the result
would have been if Horace had received proper medical treatment that night. Dr. Sutton
testified that the injury should have been closed immediately to prevent infection and
additional bleeding. However, there was no evidence that Horace’s eyes were infected.
¶12.
When asked whether the retinal detachment was caused by the doctors’ delay in
closing Horace’s eye, Dr. Sutton testified that the retinal detachment did not occur at the spot
where the glass penetrated Horace’s eye. Instead, Dr. Sutton testified that the retinal
detachment occurred at the spot where the surgeons at Ocshner inserted a tube into Horace’s
eye. Dr. Sutton stated that retinal detachment was a complication of surgery, and it occurs
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when the surgeons cannot see the tip of the tube. Ultimately, Dr. Sutton testified that he
could not say whether the glass, the blunt force trauma, the alleged improper care, or the tube
used during the surgery caused the retinal detachment.
¶13.
At the conclusion of Dr. Sutton’s testimony, the trial court addressed a defense motion
for a mistrial based upon the concern that the parties could not conclude their cases before
the upcoming Memorial Day holiday. The trial court suggested that the case continue
through Saturday of that week. The trial court would observe the holiday on Monday, and
the case would reconvene on Tuesday. The parties, more specifically the defendants,
opposed this suggestion, arguing that it would be prejudicial to their case. The trial court did
not rule on the matter at that time. Ultimately, the parties did not have to continue the trial
into the Memorial Day weekend.
¶14.
On the same day, Dr. Bertucci and Dr. Finch moved for a directed verdict, arguing
that Horace failed to establish proximate cause through Dr. Sutton’s testimony. The trial
court found that Dr. Sutton’s testimony established that the doctors owed a duty to Horace,
the standard of care, and how the doctors breached that standard of care. However, the trial
court found that Dr. Sutton failed to establish with a reasonable degree of medical certainty
that the doctors’ alleged acts of negligence caused or contributed to Horace’s loss of vision.
Therefore, the trial court granted the doctors’ motion for a directed verdict.
¶15.
Horace filed a motion for a new trial on June 4, 2007. On November 2, 2007, the trial
court denied the motion. Aggrieved, Horace timely filed his notice of appeal.
ANALYSIS
¶16.
This Court reviews the trial court’s grant or denial of a motion for a directed verdict
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under a de novo standard of review. Pierce v. Cook, 992 So. 2d 612, 616 (¶8) (Miss. 2008)
(citing White v. Stewman, 932 So. 2d 27, 32 (¶10) (Miss. 2006)). “In conducting such a
review, we ‘must decide whether the facts presented, together with any reasonable
inferences, considered in the light most favorable to the nonmoving party, point so
overwhelmingly in favor of the movant that reasonable jurors could not have returned a
verdict for the plaintiff.’” Troupe v. McAuley, 955 So. 2d 848, 858 (¶28) (Miss. 2007)
(quoting Robley v. Blue Cross/Blue Shield, 935 So. 2d 990, 996 (¶16) (Miss. 2006)).
A. Directed Verdict
¶17.
Horace argues that Dr. Sutton’s testimony more than suggested that the doctors’
misdiagnoses, their failure to shield Horace’s eye, and the subsequent improper medical
treatment was a major contributing factor to his vision loss. Thus, he contends that the trial
court erred by directing a verdict in favor of Dr. Finch and Dr. Bertucci. Conversely, Dr.
Finch and Dr. Bertucci argue that Dr. Sutton never testified that any breach of the standard
of care proximately caused Horace’s loss of vision. Therefore, they contend that the trial
court did not err by granting their motion for a directed verdict.
¶18.
To establish a prima facie case of medical negligence, the plaintiff must produce
evidence of the following:
(1) The existence of a duty on the part of 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 standard required of the defendant; [and]
(3) An injury to the plaintiff proximately caused by the breach of such duty by
the defendant[.]
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Drummond v. Buckley, 627 So. 2d 264, 268 (Miss. 1993) (citing Burnham v. Tabb, 508 So.
2d 1072, 1074 (Miss. 1987)). These factors must be established by expert testimony. See
Troupe, 955 So. 2d at 856 (¶22).
¶19.
The trial court found that Dr. Sutton’s testimony was sufficient to establish the duty
the doctors owed to Horace, the applicable standard of care, and how each doctor breached
that standard of care. However, the trial court found that Horace did not provide adequate
proof of proximate cause. Specifically, the trial court found that Dr. Sutton failed to express
within a reasonable degree of medical certainty that the acts of negligence of Dr. Finch and
Dr. Bertucci caused or contributed to Horace’s vision loss.
1. Horace’s Left Eye
¶20.
For the purposes of our analysis, we will discuss those portions of Dr. Sutton’s
testimony that deal with the proximate cause element of medical negligence. During direct
examination, Dr. Sutton was asked the following in regard to Horace’s left eye:
Q. Now, did that failure to timely diagnose and timely close that full thickness
corneal laceration on the left eye cause Mr. Ryals any permanent injury?
A. He has a scar on that cornea from where the injury occurred.
Q. Is that scar, in your opinion based on a reasonable degree of medical
certainty, due to any delay?
A. I’ve had scars like this that we’ve closed immediately. The quicker you
take care of these sort of injuries, typically the better the result. A laceration
like that is going to leave a scar on the cornea. If you leave it open, it will get
infected, those kinds of things.
Q. To your knowledge did it become infected?
A. I don’t believe so.
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Q. To your knowledge does he have any significant vision loss as a result of
that?
A. I think the vision - - the vision, if you’re just measuring his visual acuity
in the left eye is reasonable. I don’t remember what the number is. I think it
was 20/25 or pretty good vision. But at night when his pupil in his only good
remaining eye when his pupils dilates [sic] up when he’s driving, headlights
and oncoming lights hit that scar, and most patients that would give you a glare
or symptoms of glare, and sometimes those can be debilitating.
¶21.
Dr. Sutton testified that the doctors failed to close Horace’s eye immediately and that
closing the eye prevents infection. However, there was no evidence that Horace’s left eye
was infected. When asked if the delay in Horace’s care caused the scar on his left eye, Dr.
Sutton essentially testified that the delay did not cause the scar. His testimony reflects that
the scar was caused by the injury. Dr. Sutton also testified that Horace has “pretty good
vision” in his left eye.
2. Horace’s Right Eye
¶22.
Dr. Sutton was also questioned regarding the damage sustained to Horace’s right eye.
Dr. Sutton testified that Dr. Finch believed Horace had only a bruised right eye, which
resulted in the recommended treatment. He testified that the treatment Horace received
would have been reasonable treatment if Horace only had a bruised eye. During direct
examination, Dr. Sutton was also asked the following:
Q. If you would, there’s been a lot of testimony and controversy over whether
or not prompt closure of the globe, shielding of the eye, no manipulation, no
pressure on the eye conducted on the evening of the 28th in the emergency
room would have made a substantial difference and more likely than not
prevented the vision loss that [Horace] has in his right eye. Do you have an
opinion based on a reasonable degree of medical probability whether or not
[that] . . . would have in fact made a substantial difference in his outcome.
Dr. Sutton testified that the injury should have been closed immediately. He also discussed
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how the medical notes did not show that Horace’s eye was deformed, and he discussed the
misdiagnoses. Then, Dr. Sutton testified that:
[A.] So the question is somewhat hypothetical. Had he had gotten it closed
that night, that night in the hospital at Gulfport Memorial, they had taken him
into the operating room, closed the globe the next morning, called the retina
specialist, whoever and said, I’ve got this guy, closed his open globe last night,
the globe’s intact, I need you to evaluate him for the removal of this foreign
body. That’s the way - - I mean, what would the result of that have been? I
mean, we don’t know.
Dr. Sutton testified that an injury of that nature should be closed immediately to prevent
infection and bleeding and to reestablish the normal integrity of the eye. However, Dr.
Sutton testified that there was no evidence that Horace’s right eye was infected.
¶23.
When asked whether the doctors’ delay in closing Horace’s eye complicated his
surgery, Dr. Sutton testified that it does complicate the surgery. However, the surgery is not
impossible. It just becomes more tedious. Then, Dr. Sutton was asked the following:
Q. Do you have an opinion as to whether or not [the retinal detachment] was
a result of the delay or partially caused by the delay?
....
A. It’s interesting that the retinal detachment which is accurately described in
the operative note from Ochsner does not describe the retinal detachment being
in the area of the injury. It’s not where the glass went it. It’s not where we
closed the open globe. It’s around the inferior temporal edge . . . where the
infusion came in. Remember, we talked about when you take the jelly out of
the eye, you have to run fluid in . . . that infusion cannula, the little tube that
brings the fresh saline into the eye that they weren’t able to see it. It’s
interesting that the retinal detachment was down around that cannula according
to the report and not around where the glass went in the eye.
Q. That doesn’t mean they did anything wrong in the surgery, does it?
A. No they did absolute everything that they could to save the eye.
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....
It’s a known potential complication of doing retinal surgery that when you
place that infusion cannula, if you can’t see the tip, and [the doctors] clearly
state we could not see the tip, the end of the cannula, when you turn that fluid
on, if that tip happens to be under the retina, the retina’s going to come off.
¶24.
During the cross-examination, Dr. Sutton was asked the following:
Q. Doctor [Sutton], you indicated that you don’t know what caused the retinal
detachment of the patient in this particular case.
A. That’s correct.
....
A. I don’t know absolutely the exact etiology. It could have been from the
foreign body penetrating the eye. It could have been from the infusion cannula
possibly. Could have been during the surgery. So to say exactly what caused
it, I could not.
¶25.
Then, defense counsel asked Dr. Sutton why Horace could not see out of his right eye.
At one point during his testimony, Dr. Sutton said that the injury Horace received and the
subsequent care that he received left him blind in his right eye. Dr. Sutton then testified that
Horace could not see out of his right eye due to the scarring in the macula, which is the
center of the retina. He also testified that he could not say with a reasonable degree of
medical probability that the scarring in the macula was caused by the blunt force trauma to
Horace’s eye, the glass in the eye, the doctors’ alleged negligence, or Horace’s pre-existing
eye condition.
3. Proximate Cause
¶26.
As previously mentioned, we selected portions of Dr. Sutton’s testimony to
demonstrate how he answered questions regarding proximate cause. However, we have
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considered the entirety of Dr. Sutton’s testimony; essentially, he failed to establish proximate
cause. Dr. Sutton testified regarding Horace’s retinal detachment. However, he did not
affirmatively state that the retinal detachment was caused by any negligent acts of Dr. Finch
or Dr. Bertucci. Dr. Sutton testified that Horace could not see out of his right eye due to
scarring in the macula. However, Dr. Sutton failed to state affirmatively whether the macular
scarring was caused by any negligent acts of Dr. Finch or Dr. Bertucci. When asked whether
Horace’s outcome would have been different if the doctors had properly diagnosed Horace’s
condition and promptly closed his eye, Dr. Sutton stated that he did not know.
¶27.
In Horace’s appellate brief, he points out various passages of testimony from Dr.
Sutton, which he believes are sufficient to establish proximate cause. However, many of the
passages simply describe the duty the doctors owed to Horace, the applicable standard of
care, and how each doctor allegedly breached that duty. As Dr. Sutton testified, perhaps the
doctors should have ordered a CAT scan, closed the eye immediately, placed a rigid shield
over the eye, instructed Horace not to apply pressure to his eye, and so on. However, Dr.
Sutton’s testimony failed to show that the alleged negligent acts of Dr. Finch and Dr.
Bertucci proximately caused the blindness in Horace’s right eye. Thus, we find that the trial
court did not err by directing a verdict in favor of Dr. Finch and Dr. Bertucci. This issue is
without merit.
B. Michelle Ryals’s Testimony
¶28.
As previously mentioned, Michelle testified that Dr. Bertucci expressed to her that
Horace’s situation might have been better if they had gotten Horace to Ochsner sooner. Dr.
Bertucci denied making the statement. Horace argues that this statement could be used to
12
establish causation and whether or not the lack of treatment worsened his condition.
¶29.
Generally, the alleged medical negligence of a physician must be established through
expert testimony. Hubbard v. Wansley, 954 So. 2d 951, 957 (¶12) (Miss. 2007) (quoting
Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992)). However, “‘where a layman can
observe and understand the negligence as a matter of common sense and practical
experience,’ expert testimony is not necessary.” Id. at 960-61 (¶29) (quoting Palmer v.
Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795 (Miss. 1995)).
¶30.
The issue in this case is whether the doctors’ misdiagnoses of Horace’s condition and
the subsequent delayed treatment proximately caused the loss of vision in Horace’s right eye.
The record before this Court does not contain any expert testimony, which connects the
medical misdiagnoses and treatment delay to the cause of Horace’s blindness. The nature
of Horace’s injury is such that it is beyond the common knowledge of laymen and, therefore,
requires expert testimony. Notwithstanding the possible truthfulness of Michelle’s testimony
regarding the statement that Dr. Bertucci allegedly made to her, such testimony is not
admissible expert testimony. Therefore, we find that this argument is without merit.
C. Motion for a Mistrial
¶31.
In a cursory manner, Horace alleges that the trial court pressured the parties to
conclude their case before the Memorial Day weekend, causing prejudice to their case.
¶32.
Horace failed to provide this Court with any authority in support of this contention.
“A party’s failure to cite authority in support of an argument precludes consideration of the
issue on appeal.” Griffith v. Griffith, 997 So. 2d 218, 225 (¶26) (Miss. Ct. App. 2008) (citing
Boutwell v. Boutwell, 829 So. 2d 1216, 1223 (¶29) (Miss. 2002)). Therefore, this issue is
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procedurally barred from our review.
¶33.
Despite this procedural bar, we find no error because the parties did not have to
continue the case through the Memorial Day weekend. This issue is moot.
¶34. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
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