JAMES v. MEMORIAL HOSPITAL (2025)

¶1. On November 8, 2021, Brittany Jami James and her husband, Adam James, sued the Woman's Clinic of Gulfport P.A. (Woman's), Alisha Ware, M.D., and Memorial Hospital at Gulfport (Memorial), for medical malpractice in the Harrison County Circuit Court. The Jameses settled with Woman's and Dr. Ware, leaving Memorial as the only remaining defendant.

¶2. On June 15, 2023, Memorial filed a motion for summary judgment pursuant to Mississippi Rule of Civil Procedure 56, alleging that the Jameses had failed to establish a prima facie case for medical malpractice. The motion alleges that the plaintiffs had not provided medical expert opinions to establish that any breach of the standard of care by Memorial was the proximate cause of their damages. The circuit court found, “[T]here is not a genuine issue of material fact which would preclude summary judgment in this matter” and granted the motion to dismiss the Jameses’ claims against Memorial. This appeal followed.

FACTS AND PROCEDURAL HISTORY

¶3. Brittany James sought fertility treatment from Woman's after suffering a miscarriage. Beginning on December 11, 2019, Brittany was treated by Dr. Ware at Woman's, first for general gynecological care and later for fertility issues. Because Brittany complained of irregular ovulation, Dr. Ware prescribed several different medications, including Clomid, which is used to induce ovulation. Eventually, Dr. Ware ordered a hysterosalpingogram, or HSG, which is used to see if the fallopian tubes, uterus, and cervical areas appear normal. As a result of this test performed on November 16, 2020, at Merit Health Biloxi, a radiologist found a uterine polyp or a submucosal fibroid.

¶4. Brittany's follow-up appointment with Dr. Ware after the HSG was on November 23, 2020. Because Dr. Ware believed this could be the reason Brittany had miscarried or otherwise had been unable to become pregnant, she testified that the polyp or fibroid needed to be removed. While Brittany was being treated by Dr. Ware at Woman's, the clinic utilized paper charts as opposed to electronic health records. The chart shows that Dr. Ware set a target date of December 7, 2020, for “hysteroscopy-myosure” surgery.¹ Dr. Ware's records further show that her nurse communicated the plan of care to Dr. Ware's scheduler, Roxy, on November 24, 2020.

¶5. Dr. Ware testified in her deposition that once her notes were complete, the clerical staff took over scheduling. Dr. Ware said that Roxy would call Memorial to schedule her procedures. Once the scheduler at Memorial confirmed that the date requested for the procedure was available, Memorial's scheduler would enter the information regarding the procedure into Memorial's computer scheduling system. Dr. Ware's records indicate that the scheduling was done on November 24, 2020; however, the wrong procedure, a hysteroscopy with endometrial ablation, was entered into Memorial's surgery schedule.

¶6. During Brittany's pre-operative appointment at Memorial on December 1, 2020, a nurse met with her, and they both signed a “Consent for Treatment and Terms and Conditions of Service” form. This form did not include the name of the procedure Brittany would undergo or any information about the procedure. Brittany testified in her deposition that she was also given a thirty-six-page document identified as “patient education information,” which she did not read.² There is no indication on this form that Memorial's staff reviewed or discussed the content of this document with Brittany. Neither Brittany nor the hospital staff signed this document.³ However, this document, in one paragraph on page fourteen, did state:

Endometrial ablation is an outpatient surgery that can reduce or stop heavy menstrual bleeding. Ablation destroys the lining of the uterus. This surgery is for women who do not want to have any more children and who have not yet entered menopause.

¶7. On December 2, 2020, while Dr. Ware was at the hospital, she accessed Memorial's computer system and entered an order for a “hysteroscopy and endometrial ablation” to be performed on Brittany on December 7, 2020. She did not have her clinic records or notes with her at the hospital. Dr. Ware testified that she relied solely on Memorial's computer records when she entered the order.⁴ Dr. Ware further testified that the only person who would look at the order she entered would be the nurse at Memorial who prepared the consent form. The surgical staff would look at Memorial's schedule to pull the instruments and supplies needed for the operating room on the day of the procedure.

¶8. Prior to the procedure on December 7, 2020, Brittany met with a Memorial registered nurse who presented Brittany with a form entitled “Acknowledgment of Consent for Treatment/Operation/Procedure and Sedation/Anesthesia at Memorial Hospital at Gulfport.” Both Brittany and the nurse signed the consent form at 7:13 a.m. This consent form identified the wrong procedure by name — hysteroscopy and endometrial ablation — but gave no more information about the procedure. According to Dr. Ware, she met briefly with Brittany to make sure she had not had anything to eat or drink since midnight. While she does not remember her exact conversation with Brittany that day, Dr. Ware testified that she would typically refer to the signed consent form and ask: “You're here for a hysteroscopy and endometrial ablation and is this your signature?” Dr. Ware then signed the consent form at 7:30 a.m. before performing the procedure.

¶9. On December 7, 2020, after the surgery. Dr. Ware prepared and signed a surgical form indicating the procedure she had performed on Brittany was a hysteroscopy with NovaSure endometrial ablation. Brittany saw Dr. Ware again on December 16, 2020. After their appointment, Dr. Ware amended her post-operative notes from December 7, 2020, believing the notes on Brittany's chart belonged to another patient and corrected the post-operative notes to reflect the procedure she had ordered: “hysteroscopy with MyoSure to remove polyp.”

¶10. On January 26, 2021, Brittany called Dr. Ware to report that she still had not yet started her menstrual cycle despite being on medication. Dr. Ware became concerned, reviewed her records, and realized the wrong procedure had been performed. Dr. Ware testified that she was not completely sure when she called Brittany to tell her the wrong procedure had been performed. For privacy, Dr. Ware met Brittany in her office after hours and explained to her that “she indeed had an ablation and that this would end her fertility journey; that she would not be able to have any more children.” After much apologizing by Dr. Ware, Brittany left with a copy of her chart since she was moving from the area in the next few days.

¶11. Dr. Ware never notified Memorial about the mistake. After her meeting with Brittany, Dr. Ware went to the Memorial surgery center where the scheduling had occurred. The scheduler was not there at the time, but Dr. Ware talked with Marianna Ladner, the head of the scheduling department at that time, who explained that when Dr. Ware's office calls, the scheduler takes the call, writes down what needs to be scheduled in a book she keeps at her desk, and then enters that information into the computer. The scheduler at Memorial does nothing after entering the procedure in the computer. Dr. Ware testified that Ladner allowed her to flip through the scheduling book. When Dr. Ware looked back at December, she saw that the written note for Brittany's procedure was “MyoSure hysteroscopy.” However, the procedure put into the computer at Memorial was NovaSure ablation, the wrong procedure.

¶12. In the order granting summary judgment, the court found that the only actual evidence regarding the recording of the procedure at Memorial was that the correct procedure was in Dr. Ware's office records and the wrong procedure was in the computer at Memorial. The circuit court found a failure of proof because there was no actual evidence that Memorial made the error in placing the wrong surgery on the schedule. The court quoted Young v. Wendy's Intern, 840 So. 2d 782, 784 (¶6) (Miss. Ct. App. 2003):

Furthermore, the plaintiff must show that the party charged is the party actually responsible for the wrong, with reasonable certainty or definiteness. Berry v. Brunt, 252 Miss. 194, 172 So. 2d 398, 401 (1965). Also noted by the Berry court was that “it is not enough that this shall be left to conjecture or to inferences so loose that it cannot be dependently told where conjecture ceases and cogent inferences begins.” Id. (citing McCain v. Wade, 181 Miss. 664, 180 So. 748 (1938)).

¶13. The court found no genuine issue of material fact to preclude summary judgment. According to the order, “[t]here is no evidence to establish that the entry of the NovaSure surgery in the electronic record was the error of the Hospital. And, there is no showing of any causal connection between any alleged breach of any standard of care by the Hospital and the ensuing wrong surgery as the acts and omission of Dr. Ware intervened and superseded any such negligence.” The Jameses appealed.

STANDARD OF REVIEW

¶14. In White v. Targa Downstream LLC, 358 So. 3d 627, 632 (¶11) (Miss. 2023), the supreme court stated:

“This Court employs a de novo standard of review when considering a trial court's grant or denial of summary judgment.” State ex rel. Watson v. Long Beach Harbor Resort, LLC, 346 So. 3d 406, 409-10 (Miss. 2022) (internal quotation marks omitted) (quoting Hobson v. Chase Home Fin., LLC, 179 So. 3d 1026, 1033 (Miss. 2015)). Summary judgment will be granted when “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). “While evidence is viewed in the light most favorable to the nonmoving party, there must be a material fact issue to preclude summary judgment.” Peak v. Cohee, 294 So. 3d 604, 607 (Miss. 2020) (citing Leffler v. Sharp, 891 So. 2d 152, 156 (Miss. 2004)).

ANALYSIS

¶15. The Jameses argue on appeal that they presented sufficient evidence at the summary judgment stage to create genuine issues of material fact as to whether Memorial breached the standard of care it owed to Brittany and whether Memorial's breach caused or contributed to the wrong surgery being performed. The Jameses further argue that the question of whether Dr. Ware's negligence was a “superseding intervening cause” should have been submitted to a jury. We will address these issues below.

I. Was the Jameses’ evidence sufficient to create jury issues as to whether Memorial breached the standard of care owed to Brittany and whether any such breach was the proximate cause or proximate contributing cause of the damages she sustained?

¶16. As to the proof required in a medical negligence claim, in Cleveland Medical Clinic PLLC v. Easley, 287 So. 3d 1038, 1045-46 (¶20) (Miss. Ct. App. 2019), we explained:

To demonstrate a prima facie case of medical negligence, the plaintiff must prove:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury; and (4) the plaintiff was injured as a result.

Harper v. Hudspeth Reg'l Ctr., 270 So. 3d 239, 244 (¶20) (Miss. Ct. App. 2018) (quoting Glenn v. Peoples, 185 So. 3d 981, 985 (¶11) (Miss. 2015)). To prove medical negligence, the expert testimony must establish that the defendant's failure to conform to the required standard of care “was the proximate cause, or proximate contributing cause, of the alleged injuries.” McDonald v. Mem'l Hosp. at Gulfport, 8 So. 3d 175, 180 (¶12) (Miss. 2009).

(Emphasis added).

¶17. In regard to proving a hospital's duty to its patients, the supreme court stated in St. Dominic-Jackson Memorial Hospital v. Newton, 336 So. 3d 1089, 1093 (¶6) (Miss. 2022):

A hospital is generally not liable for the negligence of independent doctors treating patients on its premises, but it “may be liable for its own negligence and the negligence of its employees.” Clark v. St. Dominic-Jackson Mem'l Hosp., 660 So. 2d 970, 972 (Miss. 1995) (citing Boyd v. Lynch, 493 So. 2d 1315, 1318-19 (Miss. 1986)).

¶18. The depositions of the Jameses’ designated experts Dr. Ware; Betty Bradford, MA, RN, CNOR; Steven McCarus, M.D.; and Bradley Carnell Sams, M.D. were attached to their response to the motion for summary judgment. Excerpts from the records of Dr. Ware and Memorial and a copy of Memorial's policies were also included. Appellants contend that the sworn testimony from these experts was sufficient to create questions for the jury as to whether Memorial breached its duty of care to Brittany and whether any such breach contributed to her damages.

¶19. Concerning how expert testimony is to be considered at the summary judgment stage, in Banks ex rel. Banks v. Sherwin-Williams Co., 134 So. 3d 706, 711 (¶14) (Miss. 2014), the supreme court stated:

It is not, however, the province of the Court to make weight and credibility determinations during the summary judgment stage. “The weight and credibility of expert testimony are matters for determination by the trier of fact.” Hubbard ex rel. Hubbard v. McDonald's Corp., 41 So. 3d 670, 675 (¶19) (Miss. 2010) (citing Univ. Med. Ctr. v. Martin, 994 So. 2d 740, 747 (¶25) (Miss. 2008) (quoting Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990))). Determinations of weight and credibility of expert witnesses lie “within the sole province of the jury as fact finder.” Butler v. State, 102 So. 3d 260, 268 (¶22) (Miss. 2012) (quoting King v. State, 798 So. 2d 1258, 1262 (Miss. 2001)).

¶20. We first consider the uncontested fact that the wrong procedure was scheduled in Memorial's computer system. There is no question the procedure that appeared on Memorial's schedule was not the procedure Dr. Ware intended to perform on Brittany. The issue becomes: who is responsible for the error? While Dr. Ware has accepted responsibility for performing the wrong procedure, the question is whether Memorial must also share responsibility.⁵

¶21. Dr. Ware was not an employee of Memorial, and she did not have the ability to schedule surgeries on Memorial's computer system herself. In her deposition, Dr. Ware described the general manner in which she scheduled her procedures at Memorial. She would make her notes in her patient's chart, and her nurse would communicate the information to Dr. Ware's in-house scheduler, who would then call the information into Memorial's scheduler, who would input the information into Memorial's computer system. During her deposition, Dr. Ware was shown Brittany's chart at Woman's. She noted from the record that the process was followed in this case. Dr. Ware testified that she discussed the procedure and the December 7 date with Brittany on November 23, 2020. Dr. Ware's nurse communicated this information to the scheduler on November 24, and later on November 24, the scheduler noted in the clinic record that the surgery had been scheduled for December 7, 2020.

¶22. Dr. Ware testified that after it was discovered the wrong procedure was performed, she tried to determine how that had happened. She testified as follows:

And I looked at the chart and I saw what was sent to Roxy. And so I went to Memorial surgery center, which is the outpatient surgery center arm of the OR where -- the desk where these things usually get scheduled. The scheduler wasn't there at the time. Marianna Ladner, who is now the head of that section, was there and I said, how do these things get scheduled? Like, when my office calls to schedule, what happens? And she said that the scheduler takes the call, writes down what Roxy says needs to be scheduled in this book that she keeps at her desk, and then she puts it in the computer. So I said, oh, this book? And she said, yes. Can I flip through it? She said sure. So, I flipped through, and it was a fairly thick notebook, and I flipped back and perused her notes until I got back to December. And it said Brittany James, MyoSure hysteroscopy. And I said, this is where they call, is there anything else? And Marianna said, no, there's not a fax back to your office. The orthopedic doctors get a fax back to their office of what's scheduled, but y'all don't.

At a minimum, this is circumstantial evidence that the Memorial scheduler received the correct information but scheduled the wrong procedure in Memorial's computer system.⁶

¶23. In her deposition, Betty Bradford, who was designated as an expert witness in the field of nursing and facility management, testified that Memorial breached its standard of care to Brittany in the scheduling process described above. She testified that a scheduler not knowing the difference between the MyoSure and NovaSure procedures would violate Memorial's policies, which require that “[t]hese cases should be scheduled by somebody reasonably familiar with the operating room procedures.” She testified that it would violate the standard of care to not ensure that the right procedure was being scheduled. She also testified that both the standard of care and hospital policies require that the scheduler verify that the procedure scheduled is the intended procedure for that patient. Bradford testified that

if read back and verify had occurred or if there was some type of confirmation by telephone or fax, they would have complied with that, but because the wrong procedure was scheduled, common sense tells me that they did not comply with that.

As for verification of procedures, Ladner advised Dr. Ware that “orthopedic doctors get a fax back to their office of what's scheduled, but y'all don't.”

¶24. Bradford also testified that due to the wrong procedure being scheduled, the wrong procedure was placed in the consent forms. Bradford testified that according to Memorial's policies, “[t]he hospital's role is to verify that the responsible physician has obtained the patient's informed consent.” Bradford testified that Memorial breached its standard of care in this regard. According to Brittany's deposition, she told Memorial's staff that she was there for the removal of a polyp. Bradford stated that polyp removal is inconsistent with an endometrial ablation and that should have been a red flag for any nurse to stop and ask more questions. More specifically, in regard to the hospital's verification duty, Bradford testified:

And the practice for doing that is in the interview process with the patient to say, “Mrs. James, what are you here to have done? And she says whatever she says. She says she said she was having a polyp removed. It's the responsibility of the nursing staff to question, “This lady says a polyp removed, but this consent order from Dr. Ware says endometrial ablation.” There is a question, if I were the nurse in that room, saying, “I don't think this lady understands what she's having done, so I'm stopping it and calling Dr. Ware.”

Bradford testified that if Memorial had complied with the standard of care discussed above, then the error would have been discovered, and the wrong procedure would not have been done.

¶25. The Jameses designated Dr. Steven McCarus as an expert “in the field of gynecology, gynecologic surgery, and the application of same to the facts of the instant case.” In his deposition, he also testified that in his opinion, Memorial breached its standard of care by scheduling the wrong procedure. He testified it was his opinion that Memorial breached its standard of care by making a surgery-scheduling mistake. Dr. McCarus stated that Memorial owed a duty to the patient to make sure the correct surgery was scheduled. He testified:

There was no check and verify the procedure back to Dr. Ware's office. There was nothing sent to her office that she had disclosed of any verification of the procedure ․ And if that's how they schedule cases, then I would feel there was either a breakdown in current policy or there's no policy at all. And she also said that the orthopedic surgeons actually get a fax back to check and verify procedures that they want. But the whole problem in this case started from the surgical scheduler because it got scheduled incorrectly is what I believe.

Dr. McCarus also testified that Memorial breached the standard of care by not allowing Dr. Ware to scan her office records into Memorial's computer system. Finally, Dr. McCarus testified that Memorial breached the standard of care with respect to making sure Brittany gave informed consent for the procedure. He stated:

I believe the hospital did not comply with properly executing informed consent in one regard. It's the physician's responsibility to obtain informed consent. It's the hospital's responsibility to make sure the patient signed the informed consent and the surgeon sign the informed consent. But the hospital also has the responsibility to make sure the patient understands the procedure that's on the informed consent, not just sign and check off. So the nurses have an obligation to feel that the patient knows what the procedure is and understands what she's having done in general terms, not technical terms, that this is a procedure that you've signed to have and it's for bleeding. It's for women who don't want future fertility or any more children. I don't believe they did that. I believe they gave her information at the pre-admission testing, but they didn't go over it. The patient said she didn't read any of the information the hospital gave her ․ And there was documentation that Ms. James would always say I'm here to have a polyp removed. I'm not here for heavy bleeding. But that's when that pre-op nurse -- that's when the operating room nurse, whoever asked her had the opportunity to check and verify, wait a minute, you're here to have a polyp removed. This information is for menorrhagia, heavy menstrual bleeding, and to destroy the lining of the uterus, and you can't have any more children. But you're here to have a -- so there was a breakdown at multiple points by the nurses where they could have really checked and double checked and three times checked is this the right procedure for this patient.

Dr. McCarus concluded by expressing his opinion that these breaches in the standard of care were contributing causes to Brittany's subsequent injuries.

¶26. The Jameses also designated Dr. Bradley C. Sams as an expert in the field of gynecology and gynecologic surgery. Dr. Sams testified in his deposition that, based on a reasonable medical probability, the scheduling of the incorrect procedure by Memorial was a contributing cause to the wrong surgery being performed. In addition to all that has been discussed above, Dr. Sams noted that nowhere in any of Woman's or Dr. Ware's records is there any mention of “endometrial ablation and NovaSure or any type of endometrial ablation.” It is only mentioned in Memorial's records.

¶27. We find that the Jameses’ response to Memorial's motion for summary judgment provided sufficient summary judgment proof, when viewed in the light most favorable to the non-movant, to create a genuine issue of material fact as to whether Memorial committed medical malpractice in this case.

II. Was Dr. Ware's negligent act in performing the wrong procedure on her patient a “superseding intervening cause” that would support the grant of summary judgment?

¶28. The circuit court found that “there is no showing of any causal connection between any alleged breach of any standard of care by the Hospital and the ensuing wrong surgery as the acts and omission of Ware intervened and superseded any such negligence.” However, in Byrd v. Stubbs, 190 So. 3d 26, 31-32 (¶16) (Miss. Ct. App. 2016), we explained:

A superseding cause “is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Causey v. Sanders, 998 So. 2d 393, 405 (¶38) (Miss. 2008) (quoting Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So. 2d 43, 46 (Miss. 1998) (citing Restatement (Second) of Torts § 440 (1965))). The intervening negligence must be “independent” of the original negligence. Saucier v. Walker, 203 So. 2d 299, 304 (Miss. 1967). In addition, “[u]nder this theory, the original actor's negligence may be superceded by a subsequent actor's negligence” only “if the subsequent negligence was unforeseeable.” Causey, 998 So. 2d at 405 (¶38). “[The Supreme] Court has held that, if ‘the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances,’ the subsequent actor's negligence is foreseeable and does not break the chain of events between the negligence of the first actor and the injury.” Id. (quoting Southland Mgmt. Co., 730 So. 2d at 46). The Court has further “stated that ‘the question of superseding intervening cause is so inextricably tied to causation, it is difficult to imagine a circumstance where such issue would not be one for the trier of fact.’ ” Entrican v. Ming, 962 So. 2d 28, 36 (¶25) (Miss. 2007) (quoting O'Cain v. Harvey Freeman & Sons, Inc., 603 So. 2d 824, 830 (Miss. 1991)); accord Howell [v. Equip. Inc.], 170 So. 3d [592,] 600 (¶20) [(Miss. Ct. App. 2014)].

(Emphasis added). Accordingly, we find the question of whether Dr. Ware's negligence in performing the wrong procedure was a superseding intervening cause is a question for a finder of fact.

CONCLUSION

¶29. We find that the question of whether Memorial committed medical negligence in this case survives summary judgment. Likewise, the question of whether Dr. Ware's medical negligence was a superseding intervening act so as to absolve Memorial of any potential liability presents a genuine issue of material fact. Accordingly, we reverse the trial court's order granting summary judgment and remand the case to the circuit court for further proceedings consistent with this opinion.

¶30. REVERSED AND REMANDED.

FOOTNOTES

1.   At her deposition, Dr. Ware testified that a “hysteroscopy is visualization of the interior of the uterus using a scope and distending the uterus normally with, in my practice, normal saline.” She said, “MyoSure is an element that can be introduced through the scope which can remove defects such as fibroids or polyps by morcellation.” Dr. Ware further advised that “morcellation” means “chopping it up into little-bitty pieces and sucking it out.”

2.   This thirty-six-page document includes discharge information and vitals that could not have been included in the documents Brittany received on December 1.

3.   In fact, the document contained in the record that was shown to Brittany during her deposition is not the actual document that was given to Brittany. The document in the record was printed on August 27, 2021, well after the December 1, 2020, pre-op meeting.

4.   Dr. Ware's clinic records for Brittany could not be scanned into Memorial's computer system at that time.

5.   While Dr. Ware had primary responsibility for patient care, Memorial may also be liable for its independent negligence. See Thompson v. Baptist Mem'l Hosp.-Desoto Inc., 247 So. 3d 229, 235-44 (¶¶45-88) (Miss. 2018).

6.   Memorial argues that this information is all hearsay; we find that it is not. Ladner's statements to Dr. Ware and the scheduler's written statement are not hearsay pursuant to Mississippi Rule of Evidence 801(d)(2)(D), as the statements were “made by the party's agent or employee on a matter within the scope of that relationship and while it existed.”

EMFINGER, J., FOR THE COURT:

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, WEDDLE AND ST. PÉ, JJ., CONCUR.