BARBARA HUSS; RODNEY HUSS v. JOHN OVERTON GAYDEN, M.D.; MEMPHIS OBSTETRICS AND GYNECOLOGICAL ASSOCIATION PC
No. 04-60962
United States Court of Appeals for the Fifth Circuit
September 15, 2006
Aрpeal from the United States District Court for the Northen District of Mississippi
PRISCILLA R. OWEN, Circuit Judge:
In this medical malpractice case, we conclude that the applicable Mississippi statute of limitations,
I
Barbara Huss became Dr. Andrea Giddens‘s patient at Memphis Obstetrics and Gynecological Association PC (Memphis OB/GYN) on February 17, 1998. At that time, Huss was twenty-seven weeks pregnant. Huss informed Dr. Giddens of her relevant medical
On March 8, 1998, Huss was feeling increased cramping and pressure and sought treatment at Memphis OB/GYN. Her contractions were five-to-ten minutes apart, and she thought she was in labor. The on-call physician, Dr. John Albritton, attempted to stoр the contractions and avoid premature childbirth. He did not see Huss, but instead communicated by telephone with a nurse, first ordering intravenous hydration and the drug Stadol. When the contractions continued, Dr. Albritton ordered injections of Terbutaline, and the contractions ceased.
The next day, on March 9, 1998, a third Memphis OB/GYN physician, Dr. John Gayden, treated Huss and continued to administer Terbutaline. The following day, Huss was examined by Dr. Giddens, her principal attending physician at Memphis OB/GYN. Dr. Giddens also prescribed oral Terbutaline for Huss, which was to be taken daily for several weeks. Huss saw Dr. Giddens on more than one occasion thereafter, and as late as April 21, 1998, Huss was taking Terbutaline and had not been instructed to stop.
From March 8, 1998 until her child was delivered, Huss experienced various symptoms that caused her to seek emergency treatment on more than one occasion. On May 5, 1998, Huss‘s physical condition was such that an attempt to induce delivery was made but
In June 1999, Huss and her husband, Rodney, sued Dr. Giddens for malpractice. That case was subsequently dismissed on jurisdictional grounds. On June 30, 2000, more than two years after Huss‘s heart and lung conditions were diagnosed, the Husses sued Dr. Gayden and Memphis OB/GYN, alleging that their negligence in treating her and in prescribing and administering Terbutaline caused her medical conditions and injuries. Dr. Giddens is not a party to this lawsuit.
In their answer to the complaint, the defendants included аs an affirmative defense the contention that the Husses’ claims were barred by Mississippi‘s two-year statute of limitations. Before trial, a case management order was entered setting a deadline for filing motions other than motions in limine. Neither party requested an extension of that deadline, and the defendants did not file a dispositive motion based on limitations before the deadline expired. A pretrial order listed summaries of the parties’ arguments and contested issues of law and fact. The defendants’ statute-of-limitations defense was not included as a contested legal or fact issue, but it was noted on the last substantive page of the order in a section pertaining to “additional matters to aid in the disposition of [the case].”
The parties had consented to proceed to trial with a magistrate judge presiding, and a jury returned a verdict awarding $3.5 million in damages to compensate Barbara Huss for
On appeal, the defendants argue that (1) the Husses claims are barred by the statute of limitations, (2) there is insufficient evidence to prove that Terbutaline caused Barbara Huss‘s injuries, (3) the magistrate judge improperly excluded a defense expert‘s testimony regarding causation, (4) there were errors in the jury charge, (5) the judge made prejudicial comments before the jury, and (6) the judge failed to correct a mischaracterization of the evidence during the plaintiffs’ closing argument. Because we hold that the Husses’ claims are barred by limitations, we do not address causation, exclusion of the defense expert‘s
II
The magistrate judge concluded that the defendants waived their statute-of-limitations defense by failing to file a dispositive motion within the time specified in the case management order for motions other than motions in limine. The defendants were not required to file a motion for summary judgment as a predicate to moving for a directed verdict under Rule 50(a) at the close of the evidence. Rule 50(a) authorizes a party to move for judgment as a matter of law any time before submission of the case to the jury “[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issuе.”1 Certainly, the defendants could have raised limitations by a pre-trial dispositive motion asserting that there is no fact issue concerning when limitations accrued. But a court order setting a pre-trial “motions” deadline could no more foreclose a party‘s right to make a motion under Rule 50(a) than it could preclude a party from filing a motion for new trial. To the extent the magistrate judge concluded otherwise, it was in error.
The Husses also assert that the defendants abandoned the limitations defense by failing to list it as a contested issue of fact or lаw in the pretrial order. We disagree. The statute-of-limitations issue was sufficiently identified in the pretrial order as an issue of continuing concern. By including the defense as an additional matter that would affect
III
The parties agree that the statute governing limitations in this case is section 15-1-36 of the Mississippi Code, which provides that “no claim in tort may be brought” against a physician or arising out of the course of medical services “unless it is filеd within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.”2 The Husses sued the defendants on June 30, 2000. There was no jury question submitted concerning the date the Husses’ cause of action accrued; therefore, defendants can prevail on their statute of limitations defense only if the
Judgment as a matter of law is appropriate if “there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [an] issue.”3 We review the denial of motion for judgment as a matter of law de novo, drawing all reasonable inferences in favor of the nonmoving party.4 We cannot make credibility determinations or weigh the evidence, and “‘we must disregard all evidence favorable to the moving party that the jury is not required to believe.‘”5 Because this is a diversity case, we are bound by state law.6
The Mississippi Supreme Court has decided several cases in recent years regarding limitations. The most analogous decision is Wright v. Quesnel, in which the plaintiff was treated by an obstetriciаn throughout her pregnancy.7 During her eighth month, she exhibited high blood pressure and possible pre-eclampsia. Her obstetrician recommended bed rest. Three days later, she again sought treatment from this physician and was again ordered to rest in bed. Another three days passed, and the plaintiff presented with severe pain, at which time her obstetrician determined that her child had died in utero. The Mississippi Supreme Court held, as a matter of law, that limitations began to run on the date of the child‘s death.
The statute at issue in Wright was
In the case before us, the evidenсe adduced at trial demonstrates that suit was filed more than “two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.”13 On May 10, 1998, Huss was diagnosed with the injuries of which she now complains. As of that day, she knew she had been treated over the course of her pregnancy by the defendants and had experienced difficulties that resulted in her seeking emergency medical treatment on several occasions. She also knew the defendants had prescribed Terbutaline, which she had taken continuously for more than six weeks. All the facts forming the basis of her claim were known as of May 10, 1998. Applying the reasoning of Wright, the plaintiffs “should have known that there was some causal connection”14 between the treatment Barbara Huss received from the defendants and her injuries, even if they did not know the precise cause of those injuries. Although the Mississippi Supreme Court has stated that knowledge of “‘a causal relationship between the negligent act and the injury or disease complained of is essential because “it is well-established that prescription does not run against one who has neither actual nor
In Powe v. Byrd, another rеcent medical malpractice case from the Mississippi Supreme Court, the plaintiff received a course of treatment over approximately two years for gastritis and hemorrhoids.18 He was ultimately diagnosed in March 1998 with cancer in his colon and lungs and died in August of that year. His survivors contended that limitations on Powe‘s claim against the physician who failed to diagnose the cancer did not commence under
The Mississippi Supreme Court elaborated on its holding in Powe in a subsequent case, PPG Architectural Finishes, Inc. v. Lowery.20 The court explained, “In Powe, this Court found that a plaintiff‘s receipt of medical treatment for two years demonstrated that he knew or reasonably should have known about his injuries [and] . . . specifically rejected his claim that the statute of limitations began running when he received an expert opinion because [he] had known of his injury as evinced by the two years of prior medical treatment for the injury.”21 This rationale compels the conclusion that Barbara Huss knew or reasonably should have known of her injury when she was diagnosed on May 10, 1998 with cardiomyopathy, congestive heart failure and pulmonary edema after a difficult pregnancy that included administration of Terbutaline.22
The dissent contends that when a physician denies that a patient‘s injury was caused by the physician‘s course of treatment or administration of a drug, limitations does not commence to run unless and until causation is established at trial by a jury‘s findings. This
Because the plaintiffs filed suit more than two years after the date the alleged act, omission or neglect was or with reasonable diligence might have been first known or discovered, the plaintiffs’ claims are prescribed as a matter of law, and the magistrate judge erred in denying the defendants’ motion for judgment as a matter of law. We therefore REVERSE the trial court‘s judgment and RENDER judgment that the plaintiffs take nothing.
REVERSED AND RENDERED
Under the controlling law of Mississippi, “the operative time [the trigger of limitations] is when the patient can reasonably be held to have knowlеdge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.”1 The majority concludes that this medical malpractice case should never have gone to trial because the patient, on learning of her injury, should have connected her medical condition with a particular drug given over a course of treatment. In doing so, my colleagues misread the law and unwittingly sanction a trial stratagem of defendants. Respectfully, I dissent.
First there is underbrush to be put aside. Nothing supports any implication that Mississippi law allocates to the judge, and not the jury, all questions of when a patient should have known of a causative link between injury and conduct. Nor is there a basis for concluding that application of the statute always presents only a question of law. Indeed, the language of the limitations trigger in the Mississippi statute — “shall or with reasonable diligence might have been first known or discovered”2 — poses a fact
There is another wrinkle here. For transparent reasons, defendants did not seek a jury determination of their limitations defense, preferring to relinquish all of the defense except a contention that the case was time-barred as a matter of law. It follows that the entry of judgement on the verdict is supported by an implied jury finding of any question of fact necessary to rejection of the defense of limitations.3
The failure of defendants to seek a jury determination on the limitations defense was no accident. The fight at trial was causation. Defendants maintained that the prescribing doctors could not have known that Terbutaline was a cause of Huss‘s condition because there was no link between the two; the heart condition was idiopathic. It would have been awkward at best to also ask the jury to find that Huss, an untrained layperson, should have looked at Terbutaline as a culprit. Defendants elected to pitch to the jury their contention of no causation unimpeded by the conflicting contention that thе patient should have known what the defendant doctors did not. And now, on appeal, defendants contend that there is insufficient evidence to support the finding of
The majority relies primarily on Wright v. Quesnel, but that reliance is misplaced. Essentially, the pregnant patient in Wright exhibited troubling symptoms on two occasions, the doctоr ordered bed rest both times, and then the child died in utero. Any reasonable person would connect the child‘s death to the lack of treatment. Here, by contrast, Huss exhibited troubling symptoms of early contractions, the doctors treated those early contractions with Terbutaline (and other treatments), and then the early contractions ceased4 and she gave birth. And then she was diagnosed with cardiomyopathy. In other words, the treatment here did what it was supposed to do; the allegation is that it did more, which the Husses had to figure out. In Wright, the treatment (or lack thereof) did not do what it was supposed to do. And, of course, it is always easier to connect a total lack of treatment to an injury than which of multiple treatments caused an injury. The patient in Wright needed no further investigation; the Husses did.
The other cases cited by the majority are inapposite for
I do not see Erie as simply a rule controlling the source of substantive law where federal jurisdiction rests on diversity of citizenship. Rather, it is an order of constitutional magnitude allocating state and federal power, reinforced by strands of separation of powers, as Professor Mishkin has explainеd.8 Hence my disagreement with my colleagues goes beyond principled readings of decisions by a state supreme court in discharge of our Erie duty. The legislature of the State of Mississippi, responding to political forces conflicted over the need of doctors to be free of frivolous and stale claims and the protection of patients from bad medicine, enacted the statute at hand. This statute, with its interpretations by the Supreme Court of Mississippi, are the sources from which the question before us today must find its answer. We have a reticulаted pattern of cases, some of which find no fact issues where it is undisputed that a patient knows both that he is injured and must as a reasonable man then know that the arrow points to the doctor. Errors in diagnosis — for example, you have a fatal heart attack after being told it‘s only indigestion —
But what we do not have from the Mississippi courts is the bright line rule announced by the majority — limitations is triggered by knowledge of injury alone, the causative component dropping away because limitations is triggered “as a matter of law.” The majority does this because it says that these facts permit no conclusion but that limitations commenced to run when the patient learned she had a major heart problem because she should have then immediately focused on Terbutaline, even though the treating doctors swear that the drug had nothing to do with her condition and, significantly, that the cause of her injury was unknowable. This is a fundamental restatement of the balance struck by the Mississippi legislature. Whether it is good policy or needed reform by some abstract measure of social justice I do not know. But it is not in the constitutive order of things for three Texas judges, even as well-intentioned and able as my colleagues, to decide for the State of Mississippi. At the least we should be most hesitant to trim the role of the jury without much clearer direction from the state.
Contrary to the majority‘s statement, I do not maintain that limitations here does not “commence to run unless and until causation is established at trial by a jury‘s finding.” Rather, I maintain that a jury should have decided the fact question
Notes
(1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optоmetrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chirоpractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and . . . in no event more than seven (7) years after the alleged act, omission or neglect occurred [subject to some exceptions not applicable here].