The Supreme Court of Mississippi (“Mississippi Supreme Court”) in its opinion handed down on January 24, 2019 reaffirmed Mississippi’s loss of chance doctrine in Mississippi medical malpractice cases, which requires a plaintiff to show that proper treatment would have provided the patient with a greater than 50 percent chance of a better result than was in fact obtained.
Nonetheless, the Mississippi Supreme Curt held in the Mississippi medical malpractice case it was deciding that the plaintiff “failed to prove by a preponderance of the evidence that he would have experienced a greater than 50 percent chance of a substantially better outcome had [the defendant hospital] timely recognized and reported his stroke and administered tPA. [The plaintiff] put forth no evidence that [the defendant hospital] proximately caused or contributed to his eventual death—even had his stroke been timely recognized and reported. Thus, because [the plaintiff’s] expert testimony is not based on reliable data as required by Rule 702, and because it fails to satisfy this Court’s loss-of-chance causation standard, no genuine issues of material fact exist. Summary judgment was proper, and we affirm.”
The Underlying Facts
On December 12, 2011, the decedent was admitted to the defendant hospital where he underwent a cardiac catheterization with stent placement that was performed without significant complication, and he was expected to be discharged two days later. At some point during the overnight hours of December 13 to 14, 2011, the decedent suffered an ischemic stroke. His wife complained to the nursing staff that she observed symptoms of a stroke as early as 7:00 a.m. the next morning, which the nurses documented in his chart at 8:00 a.m. However, no doctor was notified of the stroke until much later in the day.
By the time the doctors became aware of the stroke (at least seven and a half hours after his wife first complained to the nursing staff), the time frame within which tissue plasminogen activator (“tPA”)—a “clot-buster” drug used to restore blood flow to a stroke victim’s brain—is to be effectively administered had passed. Following the stroke, the decedent could no longer care for himself, provide for his family, or enjoy the quality of life he was accustomed to. He subsequently died.
A Mississippi medical malpractice wrongful death lawsuit was subsequently filed. The defendant hospital stipulated that its nurses breached the applicable standard of care by not recognizing and reporting the decedent’s stroke symptoms to a physician earlier and that the nursing staff’s delay in reporting the stroke prevented the possible administration of tPA. Nonetheless, the defendant hospital denied that the decedent was ever a candidate for tPA administration, noting that he was a 75-year-old, brittle diabetic with a relevant medical history that was positive for atrial fibrillation, hypertension, low ejection fraction, and coronary artery disease.
The trial court granted the defendant hospital’s motion for summary judgment, finding that the plaintiff’s experts’ opinions were neither based on nor supported by reliable data (i.e., the medical literature) regarding the probability tPA would have been effective even if it had been timely administered. The trial court found that no study, not even the benchmark NINDS study, demonstrates that timely tPA treatment provides a greater than 50 percent chance of a better outcome. The trial court therefore determined that, as a result, the plaintiff failed to prove by a preponderance of the evidence that the decedent would have had a greater than 50 percent probability of a substantially better outcome had his stroke been timely diagnosed and had tPA been timely administered.
The Mississippi Supreme Court stated that in order for the plaintiff to recover under Mississippi’s loss-of-chance causation standard, he must prove a greater than 50 percent chance of a substantially better outcome had the defendant hospital timely recognized and reported his stroke and administered tPA. The Mississippi Supreme Court stated: “The undisputed medical evidence demonstrates, and all the experts in this case agree, the effective rate (i.e., the absolute benefit) of timely administered tPA is between 8 and 12 percent—a rate far below the 50 percent threshold required to prove causation. Thus, by [the plaintiff’s expert’s] own concessions, [the plaintiff’s] loss-of-chance claim fails as a matter of law.”
Source Norman v. Anderson Regional Medical Center, No. 2017-CA-00153-SCT.
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