“Generally we , review the district court's ruling on a motion for new trial for an abuse of discretion . . . .”
How later courts described this case
- “Generally we , review the district court's ruling on a motion for new trial for an abuse of discretion . . . .”
Written by the judges who cited it.
The opinion
United States Court of Appeals,
Fifth Circuit.
No. 96-60484.
John M. GOLDMAN, Jr., a Minor, by & through his Mother and Next
Friend, Deborah Goldman; Deborah Goldman, Individually; John M.
Goldman, Sr., Plaintiffs-Appellants,
v.
Julius BOSCO, M.D., George Henneberger, M.D.; Women's Clinic,
Inc., Defendants-Appellees.
Aug. 27, 1997.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before WISDOM, BENAVIDES and STEWART, Circuit Judges.
WISDOM, Circuit Judge:
This appeal involves a medical malpractice action brought
under Mississippi law. Because we find that the district court
erroneously instructed the jury regarding the standard of care
applicable to the defendant physician's conduct, we reverse and
remand.
BACKGROUND
On November 7, 1989, the plaintiffs, John M. Goldman, Jr., a
minor, by and through his mother and next friend, Deborah Goldman,
Deborah Goldman individually, and John M. Goldman, Sr., filed this
medical malpractice action against Julius Bosco, M.D., George
Henneberger, M.D., the Women's Clinic, Inc., and the Singing River
Hospital and its Board of Trustees. Jurisdiction was based on
diversity of citizenship. The plaintiffs allege that the
defendants were negligent during Deborah Goldman's delivery of John
1
Goldman Jr. on November 4, 1975, causing irreversible brain damage
to the newborn child. The district court dismissed the claims
against the Singing River Hospital and its Board of Trustees. The
case proceeded to trial, and the jury returned a verdict for the
remaining defendants, finding specifically that neither Bosco,
Henneberger, nor the Women's Clinic was negligent in the care of
Deborah Goldman or John Goldman, Jr.
The plaintiffs moved for a new trial, arguing that the
district court erroneously instructed the jury regarding the
applicable standard of care, asserting that the district court
abused its discretion in making certain evidentiary rulings, and
urging the court for a new trial because of an improper comment by
defense counsel. The district court denied the motion. The
plaintiffs filed a timely notice of appeal.
DISCUSSION
The most significant issue in this appeal is whether, under
Mississippi law, a national standard of care or local standard of
care should be applied to the defendant physicians' 1975 conduct.
Initially, the district court, ruling on a motion in limine,
determined that a national standard of care applied. Later, the
district court reconsidered the issue and decided to apply the
local standard of care.
Because we sit in diversity, we must apply Mississippi law.1
Generally, we review the district court's ruling on a motion for
1
See, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938).
2
new trial for an abuse of discretion,2 but asserted legal errors
are reviewed de novo.3
At trial, the district court instructed the jury to apply a
local standard of care to the defendant physicians' conduct:
In this case, when determining whether the plaintiffs have
demonstrated by a preponderance of the evidence that [the
defendants] were negligent ... you must determine whether the
degree of care and skill exercised by [the defendants] fell
below the level of care and skill which would have been
exercised by a minimally competent, reasonably prudent
obstetrician under the same or similar circumstances
practicing in the Pascagoula, Mississippi, medical community
in 1975.
The plaintiff argues that the district court erred as a matter
of law because under Mississippi law a national standard of care
should have been applied to the defendant physicians' conduct. In
1985, in Hall v. Hilbun,4 the Mississippi Supreme Court abandoned
the local standard of care and adopted a resource-based national
standard of care, which is as follows:
[T]he physician's non-delegable duty of care is this: given
the circumstances of each patient, each physician has a duty
to use his or her knowledge and therewith treat through
maximum reasonable medical recovery, each patient, with such
reasonable diligence, skill, competence, and prudence as are
practiced by minimally competent physicians in the same
specialty or general field of practice throughout the United
States, who have available to them the same general
facilities, services, equipment, and options.5
2
See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 568 (5th
Cir.1994).
3
Munn v. Algee, 924 F.2d 568, 575 (5th Cir.1991); Dixon v.
International Harvester Co., 754 F.2d 573, 586 (5th Cir.1985); 1
STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW § 5.08,
at 5-73 (2nd ed.1992).
4
466 So.2d 856 (Miss.1985).
5
Id. at 873.
3
The Hall decision adopted both a new standard of care for
physicians and a new evidentiary rule regarding who may qualify as
an expert witness. Hall makes clear that a medical expert may be
qualified without knowledge of the particular community, as long as
the expert is familiar with the facilities, resources, services and
options available.6
The court then addressed whether its decision would apply
retroactively. The court recognized the general rule that
"judicial decisions ordinarily apply retroactively",7 and noted
that other states had abolished locality rule by simply adopting
the national standard of care and applying it retroactively "in a
normal fashion without fanfare".8 The Hall court, however,
carefully considered the retroactivity issue.
The retroactivity question with regard to the evidentiary
rule—who may qualify as an expert witness—is easy.... [The
evidentiary rule] should be applied in the trial of this case
on remand[,] ... in any case in which an appeal is pending[,]
... [and] to all cases tried after this date.
The retroactivity vel non of the rule regarding the
physician's duty of care is arguably more difficult.
Injustice would necessarily attend our passing judgment on the
conduct of a citizen by reference to substantive rules
substantially different from those in effect and relied upon
by the citizen at the time of his conduct. We recognize that
"the confidence of people in their ability to predict the
legal consequences of their actions is vitally necessary to
facilitate the planning of primary activity".
These fundamental premises have more validity in
contracts, property or other business or economic contexts
than in tort cases. Still if it could be demonstrated that at
6
Id. at 874-75.
7
Id. at 876.
8
Id.
4
the time Dr. Hilbun prescribed post-operative care for Mrs.
Hall he acted in reliance upon the validity of standards
substantially more favorable to him than those we state today,
that would weigh heavily in support of non-retroactivity. We
do not perceive this to be the case.
What we say today with regard to the standard of care
amounts to little more than the law catching up with the way
physicians have practiced their profession for years.
Moreover today's decision was "clearly foreshadowed"9 by the
dictum in Dazet v. Bass, and by King v. Murphy.10 We today do
little more than fulfill the prophecy of Dazet and smooth some
of King's rough edges. Seen in this context, retroactivity
works no unfairness.11
Thus, the 1985 Hall decision retroactively applied the
resourced-based national standard of care to 1978 conduct. The
Hall court found that Dazet v. Bass,12 a 1971 decision, "clearly
foreshadowed" the eventual adoption of the national standard of
care, thus mitigating any unfairness to the defendant physicians.
In Dazet the plaintiff attacked the locality rule.
Plaintiff contends with a great deal of force that the
so-called "locality rule" is no longer valid for the reason
that physicians now attend the same colleges, receive the same
post graduate courses in their specialties, and go to the same
9
The Hall court looked to the Supreme Court's retroactivity
analysis in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30
L.Ed.2d 296 (1971). In Chevron, the Court held that, as a
threshold matter, "the decision to be applied nonretroactively must
establish a new principle of law ... by deciding an issue of first
impression whose resolution was not clearly foreshadowed". The
Hall court gleaned from Chevron that such "foreshadowing removes
[the] potential for injustice". Hall, 466 So.2d at 877.
10
424 So.2d 547 (Miss.1983). King extended and expanded the
locality rule. The Mississippi Supreme Court considered King
"clear foreshadowing" of the Hall decision, removing the potential
for injustice to the defendant physician in Hall, even though King
was published years after the physician's conduct that was at issue
in Hall.
11
Id. at 877 (citations and quotations omitted).
12
254 So.2d 183 (Miss.1971).
5
seminars; that the standards of care for a specialist should
be and are the same throughout the country, and that
geographical conditions or circumstances are no longer valid
as controlling the standards of a specialist's care or
competence.13
Although the court rejected the plaintiff's argument on
procedural grounds, the court noted that the point had
"considerable force".14
In another 1985 case, Reikes v. Martin,15 the Mississippi
Supreme Court applied Hall. In Reikes, the court found numerous
errors occurred during trial and remanded the case. The court
instructed:
[I]n view of our recent decision in Hall v. Hilbun, we hold
that [the expert's] testimony cannot be excluded simply
because he was not familiar with the practice of medicine in
the locality of Hattiesburg. Upon retrial, as to this aspect
of his competency as an expert witness, the circuit judge will
be governed by the criteria we set forth in Hall v. Hilbun.16
Reikes is significant here. The conduct at issue in Reikes
occurred in 1975. The majority opinion clearly requires that the
trial court apply the evidentiary rule propounded in Hall. The
majority does not expressly state that the national standard of
care applies retroactively to the same conduct, but the evidentiary
rule and the standard of care seem inextricable. According to the
majority, the trial court could not require that the expert witness
be "familiar with the practice of medicine in the locality of
13
Id. at 187.
14
Id.
15
471 So.2d 385 (Miss.1985) (citations omitted).
16
Id. at 393.
6
Hattiesburg". If the expert is not familiar with the locality,
then he could testify only as to the resource-based national
standard.17
This line of precedent supports the plaintiff's contention
that the resource-based national standard adopted in Hall should
have been applied to the defendant physicians' 1975 conduct. The
district court, in reversing its decision to apply the national
standard, relied on Presley v. Mississippi State Highway Comm'n.18
This reliance is misplaced.
In Presley, the Mississippi Supreme Court found portions of
the Mississippi Sovereign Immunity Act, Miss.Code Ann. § 11-46-1 et
seq, unconstitutional and considered whether to strip the state of
immunity retroactively. The court observed that "[t]o hold now
that no immunity has existed since 1984 poses fiscally disastrous
consequences to our state and its political subdivisions",19 and
that "our decision today has not been "clearly foreshadowed' ".20
The court also addressed the special nature of the retroactivity
issue presented in Presley.
[W]e do not here deal with tortfeasors in the ordinary
17
Apparently Justice Walker, too, felt that the majority called
for the retroactive application of the national standard. Justice
Walker "dissent[ed] from that portion of the opinion which permits
the new trial to be governed by the new rules of law with respect
to the standard of care required of physicians pronounced by [the
Mississippi Supreme Court] in Hall v. Hilbun ". Reikes, 471 So.2d
385, 394 (Miss.1985) (Walker J., dissenting)
18
608 So.2d 1288 (Miss.1992).
19
Id. at 1298.
20
Id. at 1300.
7
sense. That is, we do not deal with human beings guilty of
careless or intentional wrong. There is no immunity accorded
the active wrongdoer by the [Mississippi Sovereign Immunity
Act]. What we treat here is the question whether the
taxpayers stand exposed to liability for such wrongs.21
As the Presley court pointed out, the retroactivity issue
presented in that case differs greatly from the retroactivity issue
presented here. The instant case deals with the actions of
"tortfeasors in the ordinary sense" not actions that could affect
the state treasury.
The district court bolstered its decision to apply the local
standard of care by relying on certain language in the Hall
decision. The Hall court stated that "if it could be demonstrated
that at the time Dr. Hilbun prescribed post-operative care for Mrs.
Hall he acted in reliance upon the validity of standards
substantially more favorable to him than those we state today, that
would weigh heavily in support of non-retroactivity". The district
court then determined that the defendant physicians in this case
relied on local standards "substantially more favorable" to them
than the resource-based national standard. The problem with the
district court's approach is that the Hall court itself broadly
rejected the possibility that the defendant physician in that case
had justifiably relied on a more favorable distinct "local"
standard of care; "[w]hat we say today with regard to the standard
of care amounts to little more than the law catching up with the
way physicians have practiced their profession for years".22 As
21
Id. at 1299.
22
Hall, 466 So.2d at 877.
8
pointed out by the court in Hall, the historical justification for
such "local" standards was seriously questioned by the court as
early as 1971 in Dazet.23
The Hall court carefully considered the retroactivity issue in
the context of medical malpractice and decided that applying the
resource-based national standard of care to the defendant
physician's 1978 conduct was merely a recognition "of the way
physicians have practiced their profession for years". There is no
indication in the Hall decision, or any subsequent case, that the
Mississippi Supreme Court would hesitate to apply Hall to conduct
occurring just three years earlier. In fact, in Reikes the court
did just that. In the light of all of the above, the district
court should have followed Hall and instructed the jury as to the
resource-based national standard of care.
We have considered the other issues raised by the plaintiff
and find them without merit.
Accordingly, we REVERSE the district court's ruling denying
plaintiff's motion for new trial and REMAND this case for a new
trial consistent with this opinion.
23
See Id. at 870.
9