283 So.3d 1162
Miss. Ct. App.2019Background
- Barbara S. Johnson, an end-stage renal disease patient, received dialysis through a temporary (nontunneled) internal jugular catheter placed April 2013 after fistula access failed; she developed MRSA bacteremia/sepsis and was hospitalized May 6–15, 2013.
- Johnson sued multiple providers; Drs. Russell, Lucas, and GLH were later voluntarily dismissed; Dr. Ned O. Kronfol (her nephrologist) was added in 2015 after she sent a notice of intent and was tried in December 2016.
- A jury found Kronfol 100% liable and awarded $271,000; trial court denied Kronfol’s motions for summary judgment, JNOV, and new trial; Kronfol appealed raising numerous evidentiary, jury-selection, and sufficiency issues.
- Key factual dispute: whether the temporary catheter (left in ~25 days) was the proximate source of infection and whether leaving it that long breached the standard of care; experts disputed whether KDOQI 2006 guidelines established the standard of care.
- Trial rulings upheld: summary-judgment denial (moot after trial), admission of plaintiff’s nephrology expert (Daubert), treating physician testimony, exclusion of references to dismissed defendants’ lawsuits, limited use of certain treating-deposition testimony, and denial of Batson and jury-quash challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations / summary judgment | Johnson: she did not know Kronfol caused injury on May 6, 2013; factual dispute on discovery date | Kronfol: as treating nephrologist, plaintiff knew or should have known by May 6, 2013; claim untimely | Trial-court denial of summary judgment moot after trial; discovery-date was fact question for jury; no reversible error |
| Expert admissibility (Daubert) — use of KDOQI 2006 guidelines | Johnson: expert relied on guidelines plus training/experience to opine breach for >7 days | Kronfol: guidelines are non-binding, outdated, not scientific basis for standard of care | Admission of plaintiff’s nephrology expert not an abuse of discretion; guidelines were a permissible support among other bases |
| Undisclosed/ treating-physician opinions & deposition evidence | Johnson: treating physicians may testify to facts and opinions formed during care; may use depositions to impeach | Kronfol: certain opinions were undisclosed expert opinions; some treated physicians were not designated experts | Court allowed treating physicians to testify within scope of care; limited non-designated-expert testimony appropriately; use of deposition testimony for impeachment and cross-exam allowed under rules; no abuse of discretion |
| Apportionment / evidence about dismissed co-defendants; jury selection/Batson | Johnson: dismissal was voluntary; mentioning dismissal would confuse/prejudice jury | Kronfol: entitled to show prior claims against Lucas/Russell for apportionment; venire skewed; Batson violated | Court excluded references that other doctors had been sued/dismissed but allowed jurors to allocate fault; denied motion to quash venire and Batson challenge — no showing of purposeful discrimination or prejudicial jury selection |
| Sufficiency / weight of evidence (causation) | Johnson: experts and treating physician testified catheter was proximate source; presented prima facie malpractice case | Kronfol: multiple equally probable sources (procedures, dialysis sessions, IM shots); experts said source indeterminate | Substantial evidence supported jury verdict; denial of directed verdict, JNOV, and new trial affirmed — verdict not against overwhelming weight of evidence |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (factors for admissibility of expert scientific testimony)
- Huss v. Gayden, 991 So. 2d 162 (Miss. 2008) (discovery rule in medical-malpractice is fact-intensive)
- Patterson v. Tibbs, 60 So. 3d 742 (Miss. 2011) (Rule 702/Daubert gating and abuse-of-discretion review)
- Scaggs v. GPCH-GP Inc., 931 So. 2d 1274 (Miss. 2006) (60-day tolling effect of notice of intent)
- Arceo v. Tolliver, 19 So. 3d 67 (Miss. 2009) (statutory notice and tolling under medical-malpractice statute)
- Delta Reg’l Med. Ctr. v. Taylor, 112 So. 3d 11 (Miss. Ct. App. 2012) (expert testimony must be relevant and reliable)
- Chaupette v. State, 136 So. 3d 1041 (Miss. 2014) (scope of treating-physician testimony vs. expert testimony)
- Scafidel v. Crawford, 486 So. 2d 370 (Miss. 1986) (treating physicians may give opinions developed during care)
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (three-step Batson framework for race-based peremptory challenges)