Conn v. United States
Conn v. United States
Opinion of the Court
In Mississippi, “[t]he success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert,”
FACTS
Conn’s Heart Attack. On February 10, 2009, John Conn was suffering from chest pains. He first visited the Stone County Hospital but soon transferred to the G.V. “Sonny” Montgomery V.A. Medical Center in Jackson, Mississippi (hereinafter “the V.A.”). By the time he arrived at the V.A., Conn’s chest pains had subsided, but he “had a troponin I value of 0.17 and some nonspecific EKG changes.”
That afternoon, an EKG showed an “[ijncomplete [rjight bundle branch block.”
The V.A. kept Conn overnight for observation, and during the night, his “[tjroponin I began to trend down[,] and Conn had no episodes overnight on telemetry monitoring.”
Unbeknownst to Conn or the V.A., Conn had a 90-percent blockage in his left descending artery. Two days later, Conn returned to the Stone County Hospital with chest pains.
Conn’s Expert Report. In time, Conn and his wife filed suit against the United States government for medical malpractice.
In light of that condition, Dr. Strong wrote that the V.A.’s course of treatment was “not appropriate.”
According to Dr. Strong, the “most concerning aspect”
The discharge diagnosis and discharge medications fail to address, account for or treat what is clearly documented by EKG, lab value and clinical history to be an acute myocardial infarcation. My professional recommendation given his documented medical course would have been to proceed with diagnostic coronary angiography. At the least, there should be been some type of pre-discharge risk stratification to assess Mr. Conn’s risk of suffering recurrent angina, a second myocardial infarcation or further complications from his acute myocardial infarcation.19
Ultimately, Dr. Strong opined that “the failure of the medical staff at the [V.A.] to appropriately diagnose, treat and risk stratify Mr. Conn following his admission for an acute myocardial infarcation on 2/10/09 left him with an unacceptably high risk of recurrent symptoms and complications of angina/myocardial infarcation and death.”
ANALYSIS
Controlling Law. The Government moved for summary judgment
Negligence suits against the federal government are controlled by the Federal Tort Claims Act, and they are evaluated “in accordance with the law of the place where the act or omission occurred.”
In Mississippi, a plaintiff in a medical malpractice case must prove, among other things, that a standard of care governed his physician’s actions.
Conn disagrees. Conn recounts the portions of Dr. Strong’s report that discuss the V.A.’s decision not to use beta-blocker therapy, its failure to order a diagnostic coronary angiography, and its failure to adhere to the recommendations of the American College of Cardiology and the American Heart Association.
Portions of Dr. Strong’s Report are Personal Recommendations and Vague. A review of Dr. Strong’s report reveals several portions that correspond to the Government’s second and third attacks. Dr. Strong’s first criticisms of the V.A.’s actions appear in his report’s fourth paragraph, where he attacks the V.A.’s decision not to order “any type of beta-blocker therapy, anti-platelet therapy or thrombin inhibitor,” nor “any type of vasodilator therapy/nitrate therapy.”
Likewise, in his report’s fifth paragraph, Dr. Strong writes that “[t]he discharge diagnosis and discharge medications fail to address, account for or treat what is clearly documented by EKG, lab value and clinical history to be an acute myocardial infarcation.” Dr. Strong might be correct, but simply claiming that the V.A. “fail[ed] to address, account for or treat” Conn’s condition does not establish a standard of care with specificity.
The remainder of the fifth paragraph is similarly imprecise. Dr. Strong writes, “My professional recommendation given [Conn’s] documented medical course would have been to proceed with diagnostic coronary angiography.”
Dr. Strong’s Reliance on Clinical Practice Guidelines. Casting aside these portions of Dr. Strong’s report leaves only his contention that Conn “was not treated with what the American College of Cardiology, American Heart Association recommend for an acute myocardial infareation.”
Research reveals that the American Heart Association and the American College of Cardiology Foundation jointly publish a series of Guidelines for different aspects of cardiac medicine. For example, the two groups recently published a set of performance measures for adults with heart failure. The series also contains Guidelines regarding percutaneous coronary intervention, coronary artery bypass graft surgery, management of patients with atrial fibrillation, and a host of other topics.
The breadth of the Guidelines series and the depth of each publication raise two obvious problems with Dr. Strong’s claim that Conn “was not treated with what the American College of Cardiology, American Heart Association recommend for an acute myocardial infarcation.”
But more fundamentally, Conn’s reliance on the Guidelines implicates an issue arising more and more often in the nation’s courts: whether the ACCF/AHA Guidelines, or any other set of published clinical practice guidelines, can establish a national standard of care in a medical malpractice lawsuit. To put it mildly, the question does not enjoy a consensus answer.
On one hand, several courts have considered clinical practice guidelines in favorable lights, and not solely for the purpose
Other courts, including one district judge in this Circuit, view these publications as “just guidelines”
So far as research indicates, neither the Mississippi Court of Appeals nor the Mississippi Supreme Court has explored this subject.
The only guidance gleanable from Mississippi caselaw
However, even under that standard, Conn could not defeat the Government’s motion for summary judgment. Even if Dr. Strong had not failed to identify a specific Guidelines publication, and even if he had not failed to identify a specific suggestion contained within such a publication, he still would have failed to state that the conduct recommended by the Guidelines marked the standard of care of a minimally competent physician. Therefore, this final piece of Dr. Strong’s report, like all other aspects of the report, fails to establish the objective standard of care that the V.A. should have followed in treating Conn.
CONCLUSION
Because Conn has failed to produce an expert report that establishes an objective standard of care to which the V.A. should have adhered, he has failed to establish a prima facie ease for medical malpractice. Therefore, the Government’s motion for summary judgment is granted. A Final Judgment will be entered to memorialize this decision.
. Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss. 2009).
. Id. (emphasis added).
. Exhibit 2 to Motion for Summary Judgment [Docket No. 46-2] (hereinafter "Government Exhibit 2”) at 2.
. Exhibit 3 to Response to Defendant's Motion for Summary Judgment [Docket No. 48-3] (hereinafter "Conn Exhibit 3”).
. Conn Exhibit 3.
. Government Exhibit 2 at 2.
. Government Exhibit 2 at 2.
. Government Exhibit 2 at 2.
. See supra at n. 5.
. Government's Brief at 2.
. Conn’s Brief at 2.
. Complaint [Docket No. 1].
. Exhibit 1 to Conn's Brief [Docket No. 48-1] (hereinafter "Dr. Strong's Report”).
. Dr. Strong’s Report at 1.
. Dr. Strong's Report at 1.
. Dr. Strong’s Report at 1.
. Dr. Strong’s Report at 1.
. Dr. Strong’s Report at 2.
. Dr. Strong’s Report at 2 (emphasis added).
. Dr. Strong’s Report at 2.
. Dr. Strong’s Report at 2.
. Motion for Summary Judgment [Docket No. 46],
.28 U.S.C. § 1346(b)(1).
. Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss. 2009). This element, like all elements of a medical malpractice case, must be satisfied by expert testimony. Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997).
. Patterson v. Tibbs, 60 So.3d 742, 753 (Miss. 2011).
. Drummond v. Buckley, 627 So.2d 264, 268 (Miss. 1993).
. Dr. Strong’s Report at 1.
. Government's Brief at 4.
. Government’s Brief at 4.
. Conn's Brief at 2.
. Dr. Strong’s Report at 1.
. Dr. Strong’s Report at 2.
. Estate of Northrop v. Hutto, 9 So.3d 381, 387 (Miss. 2009) (holding that an expert’s "personal preference does not establish a national standard of care”). The expert "must articulate an objective standard of care.” Id. at 384 (emphasis added). Otherwise, such a personal opinion is nothing more than "inexpert” opinion. Burton v. United States, 668 F.Supp.2d 86, 100 (D.D.C. 2009).
. Dr. Strong’s Report at 2 (emphasis added).
. Dr. Strong’s Report at 2.
. Dr. Strong's Report at 1.
. See AAC/AHA Joint Guidelines, American Heart Association, http://myamericanheart. org/professional/StatementsGuidelines/ ACCAHAJointGuidelines_UCM_321694_ Article.jsp (last visited July 9, 2012).
. ACF/AHA Practice Guideline: 2011 ACCF/ AHA Guideline for Coronary Artery Bypass Graft Surgery, American Heart Association, http://circ.ahajoumals.org/content/124/23/e652. full (last visited July 9, 2012).
. Dr. Strong’s Report at 1.
. See generally Arnold J. Rosoff, The Role of Clinical Practice Guidelines in Healthcare Reform: An Update, 21 Annals Health L. 21 (2012); Carter L. Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?, 61 Wash. & Lee L.Rev. 479 (Winter 2004); Michelle M. Mello, Of Swords and Shields: The Role of Clinical Practice Guidelines in Medical Malpractice Litigation, 149 U. Pa. L.Rev. 645 (Jan. 2001).
. Gerace v. United States, No. 5:03-cv-166 (NPM/GHL), 2006 WL 2376696, *24-25 (N.D.N.Y. Aug. 10, 2006) (McCurn, L).
. Dannenberg v. United States, No. 04-cv-4897 (NGGXJMA), 2010 WL 4851341, *6-7 (E.D.N.Y. Nov. 22, 2010) (Garaufis, J.).
. Lasser v. Reliance Standard Life Ins. Co., 130 F.Supp.2d 616, 622 (D.N.J. 2001) (Wolin, J.). See also Hinlicky v. Dreyfuss, 6 N.Y.3d 636, 648, 815 N.Y.S.2d 908, 848 N.E.2d 1285 (2006) (permitting defense to use Guidelines as non-hearsay demonstrative evidence but not reaching question of "whether evidence may become admissible solely because of its use as a basis for expert testimony” under New York law).
. Estate of LaFarge ex rel. Blizzard v. Kyker, No. 1:08-cv-185, 2011 WL 6151595, *3 (N.D.Miss. Dec. 12, 2011) (Aycock, J.).
. Porter v. McHugh, 850 F.Supp.2d 264, 268 (D.D.C. 2012) (simply citing to guidelines "fall[s] short of establishing a clearly defined national standard of care”).
. Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 545, 754 N.Y.S.2d 195, 784 N.E.2d 68 (2002).
. Levine v. Rosen, 532 Pa. 512, 518-19, 616 A.2d 623, 628 (1992). See also Greathouse v. Rhodes, 242 Mich.App. 221, 227-28, 618 N.W.2d 106, 109 (2000) (plaintiff not permitted to use Guidelines as learned treatise to establish standard of care) rev’d on other grounds, Greathouse v. Rhodes, 465 Mich. 885, 636 N.W.2d 138 (Mich. 2001).
. But see Causey v. Sanders, 998 So.2d 393, 401 (Miss. 2008) (affirming in part jury verdict in which an expert witness "conceded that it would be a direct violation of the Hospice guidelines to hasten any patient’s death and that if titration of medication by a hospice led to a person’s death, that action would be a breach in the standard of care for a hospice setting”).
. Frakes v. Cardiology Consultants, P.C., No. 01-A-01-9702-cv-00069, 1997 WL 536949 (Tenn.Ct.App. Aug. 29, 1997).
. Hon. William C. Koch, Jr., is now an associate justice on the Tennessee Supreme Court.
. Frakes, 1997 WL 536949 at *6 (Koch, J., concurring).
. Id.
. Id.
. Id.
. Supra at n. 54.
Reference
- Full Case Name
- John and Patricia CONN v. United States
- Cited By
- 5 cases
- Status
- Published