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Burr v. Mississippi Baptist Medical Center6/16/2005
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 06/16/2005
BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.
. In this wrongful death lawsuit, the plaintiffs allege a hospital rendered substandard care to a patient. The jury returned a verdict for the defendant hospital, and the trial court entered judgment accordingly. The plaintiffs appealed. We affirm.
BACKGROUND FACTS AND PROCEEDINGS
. Ray and Patricia Burr were both transported to Mississippi Baptist Medical Center (the Hospital) in Jackson for emergency medical treatment after they sustained serious injuries in a three-car collision on November 8, 1998. Two days later, Patricia Burr was released to go home, and Ray was transferred from ICU to a post-surgery recovery floor.
. After beginning a clear liquids diet on the 13th, Ray began to complain of nausea. As allowed per the treating physician's standing order, the nurses administered two injections of Phenergan on the 13th, three on the 14th, and one on the 15th. On the morning of the 15th, Ray vomited and, about two hours later, went into respiratory-cardio arrest, after which he had "no meaningful neurologic existence" until his death on July 15, 1999.
. Ray's widow, Patricia, and their two children, Bascom Ray Burr, Jr. and Angela Burr Moore (collectively the Burrs) brought suit against the Hospital in Hinds County Circuit Court, claiming that the hospital was responsible for the nurses' negligence which led to Ray's vomiting which, in turn, resulted in aspiration pneumonia from which he eventually died.
. The Burrs and the Hospital filed several pretrial motions including motions in limine. However, only two of the motions in limine concern this appeal; one related to the facts of the automobile wreck and the other related to medicare or social security issues.
. At the conclusion of a week-long trial the jury returned a verdict in favor of the Hospital, and the circuit court entered judgment. From this judgment, the Burrs timely appealed, alleging the following five errors: (1) improper and/or prejudicial closing argument by the defense; (2) improper jury instructions; (3) improper references to Medicare and the underlying facts of the automobile accident elicited during trial testimony; (4) a verdict that was against the overwhelming weight of the evidence; and 5) the cumulative effect of the errors.
ANALYSIS
I. Hospital's Closing Argument
. In Eckman v. Moore, 876 So.2d 975, 994 (Miss. 2004), we summarized the standard of review for closing arguments:
Attorneys have wide latitude in closing arguments. Notwithstanding the wide latitude afforded in closing arguments " he standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice . . . so as to result in a decision influenced by the prejudice so created." This Court has held that "any alleged improper comment must be viewed in context, taking the circumstances of the case into consideration." The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. (citations omitted). As such, we reverse only where a trial judge abuses his or her discretion in overruling the contemporaneous objection raised by opposing counsel.
. The plaintiffs complain about these statements at the beginning of the Hospital's closing argument:
MR. NAYLOR (counsel for Hospital): Good afternoon. You have been terribly patient this week. Y
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