JACKSON, Miss. (Legal Newsline) – A Mississippi cap on non-economic damages doesn’t apply to a $4 million jury verdict in a wrongful death lawsuit even though it was filed after the cap took effect.
The Mississippi Supreme Court last month gave bad news to Dr. B. Michael Weber and an OB-GYN practice in Laurel. Not only did the high court reinstate more than $2.5 million in non-economic damages, it ruled Judge Michael Ward was right to reject their motion for judgment notwithstanding the verdict.
The case concerned a baby born with hypoxic ischemic encephalopathy, a neurological injury caused by lack of oxygen to the brain. The child, named Cameron, did in 2007 at the age of five.
A lawsuit was filed on his behalf in December 2002. The Mississippi Legislature passed a $500,000 cap on non-economic damages in medical malpractice lawsuits in in October of that year, clearly stating it applied to cases filed after Sept. 1, 2002.
But the law also said it would “take effect and be in force from and after January 1, 2002, and shall apply to all causes of action filed on or after that date.”
Bracewell argued the legislature amended the cap in 2004 with an effective date of Sept. 1, 2004, and that her case was outside the control of the 2002 measure. The court agreed.
Dr. Weber also lost his argument that he didn’t breach the applicable standard of care and that the plaintiff failed to prove otherwise. The lawsuit alleges he should’ve performed a C-section by 7 a.m. of the birth date. Cameron was born at 1:10 p.m.
But the plaintiff’s expert failed to show the HIE developed during this six-hour period of delivery, the defendants argued.
The expert argued Weber should have known something was wrong because of alarming heart rates.
“We find that this is a classic case of conflicting evidence that must be left to the jury to weigh and resolve. An evidentiary close call cannot be said to sanction an unconscionable injustice, nor is it against the overwhelming weight of the evidence,” Justice Dawn Beam wrote.
“Additionally, this Court must defer to the jury as the trier of fact and to the trial court’s determination regarding whether to grant or deny a new trial, unless its factual conclusions were unsupported by the evidence.”
Justice Kenny Griffis dissented, finding the plaintiff expert was not qualified to offer testimony about HIE.
“None of the other six physicians who testified at trial supported the causation theory that Cameron’s HIE would have been avoided had a C-section been performed at approximately 7 a.m.,” he wrote.
“During his deposition and again at trial, Dr. Gonzalez testified that, as an OBGYN, he does not consider himself to have the appropriate expertise to offer qualified opinion testimony about the timing and cause in fact of HIE.
Dr. Gonzalez said that he had to rely on the testimony of Plaintiff’s neuroradiology expert, Dr. Lipton, to determine when the HIE developed. Since Dr. Lipton’s opinions were inconclusive, they provided no reliable support for Dr. Gonzalez’s conclusory assumptions.”