IN THE SUPREME COURT OF MISSISSIPPI
NO. 2023-CT-01296-SCT
MARY MARGARET UPCHURCH AND RICKIE
UPCHURCH
v.
ADAM I. LEWIS, M.D. AND JACKSON
NEUROSURGERY CLINIC, PLLC
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 07/12/2023
TRIAL JUDGE: HON. M. BRADLEY MILLS
TRIAL COURT ATTORNEYS: WHITMAN B. JOHNSON, III
MARK P. CARAWAY
KIMBERLY NELSON HOWLAND
JOHN MICHAEL COLEMAN
SENICA MANUEL TUBWELL
CLAIRE K. ROBINETT
CRYMES G. PITTMAN
ANN RUSSELL CHANDLER
JOSEPH E. ROBERTS, JR.
L. CARL HAGWOOD
DAVID MARK EATON
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: JOSEPH E. ROBERTS, JR.
CRYMES MORGAN PITTMAN
ANN RUSSELL CHANDLER
ATTORNEYS FOR APPELLEES: L. CARL HAGWOOD
DAVID MARK EATON
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE JUDGMENT
OF THE RANKIN COUNTY CIRCUIT
COURT IS REINSTATED AND AFFIRMED -08/06/2026
MOTION FOR REHEARING FILED:
CONSOLIDATED WITH
NO. 2024-CT-00396-SCT
ADAM I. LEWIS, M.D. AND JACKSON
NEUROSURGERY CLINIC, PLLC
v.
MARY MARGARET UPCHURCH AND RICKIE
UPCHURCH
DATE OF JUDGMENT: 02/21/2024
TRIAL JUDGE: HON. M. BRADLEY MILLS
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: L. CARL HAGWOOD
DAVID MARK EATON
ATTORNEYS FOR APPELLEES: JOSEPH E. ROBERTS, JR.
CRYMES MORGAN PITTMAN
ANN RUSSELL CHANDLER
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 08/06/2026
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, JUSTICE, FOR THE COURT:
¶1. Mary Margaret Upchurch (Mary) and her husband, Rickie, filed a medical-malpractice
lawsuit in the Rankin County Circuit Court related to a surgery performed at Merit Health
Rankin by Dr. Adam I. Lewis, a neurosurgeon with Jackson Neurosurgery Clinic, PLLC.
The Upchurches settled their claims against Merit Health Rankin and proceeded to trial
against Dr. Lewis and Jackson Neurosurgery.
¶2. The “jury found that Dr. Lewis was not negligent in his care and treatment of Mary
and returned a verdict in favor of Dr. Lewis and Jackson Neurosurgery.” Upchurch v. Lewis,
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No. 2023-CA-01296-COA, 2025 WL 2700957, at *1 (Miss. Ct. App. Sept. 23, 2025). The
circuit court entered a judgment adopting the jury’s verdict, and it later denied the
Upchurches’ post-trial motion for judgment notwithstanding the verdict and motion for new
trial. Id. The Upchurches timely appealed. Id.
¶3. On appeal, the Court of Appeals found “that insufficient evidence supported the jury’s
verdict” and therefore reversed the circuit court’s judgment and the jury’s verdict in favor
of Dr. Lewis and Jackson Neurosurgery and remanded the case for a new trial. Id. at *2. Dr.
Lewis filed a petition for writ of certiorari, which we granted.
¶4. Upon review, we find sufficient evidence was presented to support the jury’s verdict.
We therefore reverse the decision of the Court of Appeals, we reinstate and affirm the
judgment of the circuit court adopting the jury’s verdict in favor of Dr. Lewis and Jackson
Neurosurgery, and we affirm the circuit court’s order denying the Upchurches’ motion for
judgment notwithstanding the verdict and new trial.
FACTS AND PROCEDURAL HISTORY
¶5. We find the facts were sufficiently addressed and outlined by the Court of Appeals
and therefore incorporate those facts as follows:
Mary suffered from severe fibromyalgia and chronic back pain. In 2009,
she underwent surgery to have a spinal cord stimulator manufactured by St.
Jude Medical Inc. (St. Jude) implanted to provide relief from the pain. The
spinal cord stimulator was powered by a battery that St. Jude also
manufactured. The two system components were connected by leads that ran
from the spinal cord stimulator and plugged into the battery, also referred to
as an implantable pulse generator. To provide Mary with relief from her pain,
the battery was supposed to send an electrical current through the leads that
connected to the spinal cord stimulator. Unfortunately, the St. Jude spinal cord
stimulator provided inadequate relief for Mary’s back pain. As a result, in
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2011, Mary underwent another procedure to have a pain pump implanted. The pain pump delivered small doses of pain-relieving medicine directly into Mary’s spinal cord, which finally began to provide her with adequate relief.
In 2014, the Upchurches moved to Mississippi. In September 2015,
Mary had surgery to replace the original St. Jude battery connected to her spinal cord stimulator with a new St. Jude battery. At trial, Rickie testified that after the September 2015 surgery to replace the original battery, the spinal cord stimulator finally began providing Mary with noticeable pain relief. In the spring of 2016, the Upchurches learned during a visit to Mary’s doctor that her pain pump would need to be replaced soon. Mary’s physician referred her to Dr. Lewis for the replacement of the pain pump.
At trial, the Upchurches called Dr. Lewis to testify as an adverse fact witness during their case-in-chief. Though he was never offered or accepted as an expert medical witness in any field, Dr. Lewis testified about the care and treatment he provided to Mary. Dr. Lewis stated that during his
consultation with the Upchurches, he discussed replacing Mary’s current pain pump with a pain pump manufactured by Boston Scientific. According to
Rickie’s testimony, although there were serious risks associated with replacing the pain pump, Mary was willing to undergo the procedure due to the
significant benefits and relief she received from the pain pump. During the consultation, Dr. Lewis also asked the Upchurches about Mary’s St. Jude spinal cord stimulator. Rickie testified that he and Mary told Dr. Lewis that they felt the St. Jude stimulator system was working well and providing Mary with fairly consistent pain relief after the surgery several months earlier to replace the battery. The Upchurches explained that their only complaint with the St. Jude system was that the battery seemed to take a long time to charge.
Even though the Upchurches expressed an overall satisfaction with
Mary’s St. Jude system, Dr. Lewis testified that he recommended Mary switch to the spinal cord stimulator manufactured by Boston Scientific. Although Dr. Lewis stated that Todd Dyess, a Boston Scientific sales representative, joined in his consultation with the Upchurches, Dyess later testified that he had no recollection of any consultation with Dr. Lewis and the Upchurches.
Regardless of Dyess’s presence or absence at the consultation, Dr. Lewis stated that he recommended to the Upchurches that Boston Scientific’s spinal cord stimulator would be an upgrade to Mary’s current St. Jude model. Dr. Lewis explained that the Boston Scientific spinal cord stimulator only took fifteen minutes to charge and could be programmed to provide different types of stimulation to help reduce Mary’s pain.
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In contrast to Dr. Lewis’s testimony about the consultation, Rickie
stated that his and Mary’s discussions with Dr. Lewis remained limited to the replacement of Mary’s pain pump and her St. Jude battery. Rickie testified that they never discussed with Dr. Lewis replacing Mary’s spinal cord stimulator or the leads that connected the spinal cord stimulator to the battery. In fact, Rickie testified that Dr. Lewis repeatedly assured the Upchurches the leads from Mary’s St. Jude spinal cord stimulator would fit into the Boston
Scientific Precision Spectra battery that he recommended to them. Rickie stated that even if the topic of replacing the leads or the stimulator had come up, he and Mary never would have consented to those procedures. Rickie
explained that he and Mary felt the risks associated with replacing the leads or the stimulator outweighed any potential benefits of the procedures. As Rickie testified, “[Mary] already had significant benefit from the pain pump[,]” which they consented to replace despite the associated risks, and therefore, “[t]here was no reason in our minds to [also] accept the greater risks of moving the leads in her spine.”
On June 15, 2016, Dr. Lewis performed Mary’s surgery. Dr. Lewis
removed Mary’s St. Jude battery and replaced it with the Boston Scientific Precision Spectra battery. He then successfully connected the first lead from Mary’s St. Jude spinal cord stimulator to the new battery. Dr. Lewis testified, however, that the second lead would not fit properly into the new battery. At various points throughout his testimony, Dr. Lewis described the second lead as irregularly shaped, bent, flimsy, and corroded. After he was unable to connect the second lead to the Boston Scientific battery, Dr. Lewis testified that someone was sent to Rickie in the waiting room to ask if Rickie wanted to stop Mary’s procedure or give additional consent for the replacement of her spinal cord stimulator.
The jury heard contradictory testimony as to what occurred when the
hospital employee spoke to Rickie in the waiting room. According to Dr. Lewis, Rickie’s informed consent was obtained to replace Mary’s spinal cord stimulator. As a result, Dr. Lewis testified that he performed a laminectomy on Mary, which required him to remove a portion of Mary’s spinal bone to access her spinal canal. Dr. Lewis stated that he then replaced Mary’s existing St. Jude stimulator with a Boston Scientific stimulator and completed the surgery.
Rickie confirmed that a hospital employee approached him in the
waiting room and informed him that there had been a problem fitting Mary’s St. Jude stimulator leads into the new Boston Scientific battery. Rickie stated that the employee asked if Rickie wanted Dr. Lewis “to put the leads in or . . . put in the new battery and . . . do whatever or just quit[.]” Rickie repeatedly
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testified that the employee never informed him that continuing surgery meant exposing Mary to greater risks by performing a laminectomy to replace Mary’s current leads with more invasive paddles. Rickie also testified that the employee never specifically discussed with him that replacing the leads to Mary’s spinal cord stimulator with paddles posed the risk of paralysis.
Rickie stated that he never received a phone call from either Dr. Lewis or his assistant regarding the progress or outcome of Mary’s surgery. In the afternoon, hospital personnel escorted Rickie to the post-anesthesia care unit (PACU), where Mary was recovering. Rickie testified that Mary’s post-surgery recovery differed from her prior surgical experiences. Rickie explained that Mary woke up slowly and was “in a lot of pain[,]” which “usually [was] not the case” after surgery. Rickie stated that he remained with Mary in the PACU and once she was transferred to her own hospital room.
After Mary was moved to a room, Rickie testified that she began to
complain of numbness in her legs, particularly her left leg. A friend came to stay with Mary while Rickie left for about an hour. Rickie testified that upon returning to the hospital, he remained with Mary in her room until about 11:30 p.m. Rickie stated that although he had seen Dr. Lewis before Mary’s
procedure, he (Rickie) had no further communication with or contact from Dr. Lewis on the day of Mary’s procedure.
For his part, Dr. Lewis testified that after Mary’s surgery, he examined her in the PACU and entered a post-operative note around 5 p.m. to document his findings. Like Rickie, Dr. Lewis observed that Mary was slow to wake up from her surgery. Dr. Lewis also observed that Mary had a little weakness in her left leg and a little numbness below her left knee and in her left foot. Dr. Lewis acknowledged that “the first signs [of a hematoma, or a blood clot,] are numbness followed by weakness.” Dr. Lewis explained that “when someone
develops a hematoma in the spinal cord, it’s not usually one sided.” Rather, both sides of the body are affected. Dr. Lewis stated that when a hematoma forms after spinal surgery, the symptoms generally begin “with burning intense pain down the leg [that] progresses to . . . dense numbness, and then it goes to paralysis on both sides.” Dr. Lewis maintained that when he examined Mary in the PACU, he only observed slight weakness and numbness on one side of her lower body. He explained that Mary’s symptoms did not overly concern him at that time since he had just operated on the left side of her spinal cord. Dr. Lewis further explained that he expected any issues Mary was
experiencing to resolve within the next twenty-four hours.
Janet Bullock, who worked as the primary nurse on the surgical
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recovery floor at the time of Mary’s transfer, testified that Mary arrived on her floor around 4:30 p.m. Around 5 p.m., Nurse Bullock entered a note stating that Mary could not move her left leg. Nurse Bullock’s note further stated that although Mary had minimal movement in her right toes, Mary complained of numbness in both her right lower leg and foot. Nurse Bullock testified that Mary’s condition “was highly irregular” and concerning. As a result, Nurse Bullock called Dr. Lewis to report her observations and ask what steps he wanted her to take with regard to Mary’s care. During their telephone
conversation, Dr. Lewis told Nurse Bullock to give Mary a steroid shot. Nurse Bullock evaluated Mary again around 6:30 p.m. and found that Mary’s
condition did not appear to have changed or improved after the steroid shot. At 7 p.m., Nurse Bullock finished her shift, and another nurse took over Mary’s care and supervision.
Dr. Lewis testified that on the morning after Mary’s surgery, he
reexamined Mary around 7:15 a.m. At that time, Dr. Lewis noted that Mary’s condition had worsened and that she was very weak in both legs. Based on his concern that Mary had developed a hematoma, Dr. Lewis took Mary back to surgery. Upon questioning, Dr. Lewis maintained that his findings when he examined Mary in the PACU had differed from the observations that Nurse Bullock made. Dr. Lewis stated that if he had observed paralysis on Mary’s entire lower left side as Nurse Bullock’s note had indicated, he either would have ordered a CAT scan or taken Mary immediately back to surgery. Dr.
Lewis testified that Mary’s hematoma presented not as an immediate
post-surgical complication but rather appeared to have developed gradually overnight.
During Mary’s second surgery, Dr. Lewis discovered a large hematoma
pressing down on her spinal cord. Dr. Lewis also discovered that Mary “had bleeding from every incision.” Dr. Lewis stated that “[s]omething had
happened where she had had some kind of reaction either to the anesthesia or medication that caused every incision in her body, from the pain pump, even the tract to connect the leads, . . . was bleeding and oozing.” Dr. Lewis removed the blood clot and explored Mary’s incisions. Dr. Lewis testified that although he consulted with both a hospitalist and a hematologist, they were unable to determine what caused Mary’s surgical incisions to bleed.
Dr. Lewis stated that Mary initially seemed to improve after he removed the hematoma, but then her weakness eventually returned and increased. Due to Mary’s renewed weakness and the bleeding around her incisions, Dr. Lewis took her to surgery for a third time. During the third surgery, Dr. Lewis did not find another hematoma or any other cause of Mary’s weakness, and he
7
attributed her condition to post-surgical swelling around her spinal cord.
The paralysis in Mary’s legs failed to improve. In August 2018, the
Upchurches filed a medical-malpractice lawsuit against Dr. Lewis, Jackson
Neurosurgery, and Merit Health Rankin.[1] Prior to trial, the Upchurches
settled their claims involving Merit Health Rankin.
The Upchurches designated Dr. Narlin Beaty as an expert in not only
general neurosurgery but also the implantation, removal, and replacement of
spinal cord stimulators, batteries, and leads. With no objection from Dr. Lewis,
the circuit court accepted Dr. Beaty as an expert witness in these areas. Dr.
Beaty testified that he practiced as a neurosurgeon and was familiar with spinal
cord stimulators manufactured by Boston Scientific, St. Jude, and Medtronic.
Dr. Beaty stated that he regularly performed surgeries that involved
implanting, removing, and replacing these models and their batteries. Dr.
Beaty also stated that he was familiar with the standard of care that existed in
2016 with regard to not only performing but also obtaining consent for the
implantation of spinal cord stimulators, batteries, and leads.
During his testimony, Dr. Beaty discussed Dr. Lewis’s characterization
of Mary’s St. Jude leads as “corroded.” Dr. Beaty testified that although he had
“seen lots of leads” during his practice, he had “never seen . . . rust or iron
oxidation on a lead.” Dr. Beaty explained that the leads “live in fat” inside the
human body, “and generally[,] if you want to keep a piece of metal intact, you
. . . oil it. You put oil on it, and so the fat from the human [body’s] oil usually
keeps them intact.” In addition, Dr. Beaty noted that just nine months before
Dr. Lewis operated on Mary, another surgeon had replaced Mary’s St. Jude
battery. Dr. Beaty testified that nothing from the prior surgeon’s notes
indicated there had been an issue with the condition of Mary’s St. Jude leads
at that time.
In Dr. Beaty’s expert opinion, Dr. Lewis deviated from the standard of
care owed to Mary in three ways. Specifically, Dr. Beaty stated that Dr. Lewis
failed to be properly prepared for surgery, obtain proper informed consent for
surgery, and properly communicate with Merit Health Rankin’s nursing staff
after Mary’s surgery. With regard to Dr. Lewis’s preparedness for surgery, Dr.
Beaty testified that Dr. Lewis should have ensured that a St. Jude
1
The Upchurches claimed Dr. Lewis (1) began surgery without proper or compatible equipment, (2) failed to appropriately monitor or treat Mary’s neurological condition after surgery, (3) failed to obtain proper informed consent, and/or (4) failed to communicate properly with the Merit Health Rankin nursing staff.
8
representative was present and that the proper medical equipment was
available when he began Mary’s surgery. Dr. Beaty stated, “[T]he bottom line is, it’s the surgeon’s responsibility to ensure that the operating room, a representative[,] and all pieces along the chain are functional and that the equipment is present in order to provide surgery.”
Dr. Beaty testified that a Boston Scientific adapter, known as the
Precision S8 adapter, existed “to connect existing leads that otherwise do not fit . . . to the Boston Scientific [Precision Spectra] battery” and “to fix the problem that . . . [Mary] and Dr. Lewis had . . . that day.” Further testimony presented at trial reflected that Boston Scientific designed its Precision S8 adapter to connect the Precision Spectra battery with stimulator leads designed by other manufacturers, such as St. Jude. Even though Dr. Lewis offered testimony to contest whether Boston Scientific’s Precision S8 adapter was available at the time he performed Mary’s surgery, Dr. Beaty stated that the adapter’s availability did not alter his opinion that Dr. Lewis deviated from the standard of care. Dr. Beaty testified that he knew of no way to make Boston Scientific’s Precision Spectra battery compatible with St. Jude leads without an adapter. Dr. Beaty further opined that trying to connect a Boston Scientific battery to St. Jude leads was not only outside the directions-of-use information that Boston Scientific provided for its Precision Spectra battery but also fell below the standard of care. Dr. Beaty reiterated that the standard of care additionally required Dr. Lewis to have a St. Jude medical-device sales representative present for Mary’s surgery so that the representative could assist with any equipment-related issues that arose.
Dr. Beaty concluded that Dr. Lewis “ended up doing more surgery
because he was not prepared for the planned surgery[,] and unfortunately for [Mary][,] that additional surgery cost her a great deal of neurological function and changed the quality of her life.” He stated that if Dr. Lewis “had the appropriate battery, then the additional surgery would not have been
necessary[,] and the complication would not have happened.” In addition to the mid-surgery complication, Dr. Beaty concluded that the initial surgery Dr. Lewis performed “caused compression of [Mary’s] spinal cord” and “a
hematoma[,] which . . . then [had to be] evacuated the following morning.”
Dr. Beaty also testified regarding the ways he believed Dr. Lewis
deviated from the standard of care in obtaining informed consent prior to Mary’s surgery, handling the mid-surgery complication that arose, and
communicating with Merit Health Rankin’s nursing staff after surgery. Dr. Beaty stated Dr. Lewis’s post-operative note demonstrated that Mary had “a small but present neurologic deficit[,]” and several notes from the nursing staff
9
“document[ed] a large neurologic deficit.” Dr. Beaty testified that other than ordering steroids for Mary, which was inadequate, no other steps were taken to address the neurologic deficit. According to Dr. Beaty, the communication failure between Dr. Lewis and the nursing staff also led to Mary’s poor outcome after surgery.
In addition to Dr. Beaty, the Upchurches designated Dr. Stephen
Bloomfield, a neurosurgeon and academic professor, as a second expert
witness in the implantation and replacement of spinal cord stimulators, leads, and batteries. Again, without any objection from Dr. Lewis, the circuit court accepted Dr. Bloomfield as an expert witness in these designated fields. Like Dr. Beaty, Dr. Bloomfield opined that Dr. Lewis deviated from the standard of care and failed to appropriately prepare for surgery when he operated on Mary without having the Boston Scientific Precision S8 adapter available. According to Dr. Bloomfield:
[t]he standard of care would have dictated that the contact points
needed to be tested with a proper system. And if [Dr. Lewis] did
not prepare that proper system by [having] an S8 adapter prior
to the separation, then he would have had to close the operation
and then make plans to get that adapter to be able to perform
that function.
An alternative would have been for him to use the old battery
that he was removing to test this[,] but he would have required
the programmer from the old battery company from St. Jude[,]
and he did not have that presence. So he would need to connect
the old battery again and then run those diagnostics to see
whether or not the electrode needed to be fixed or not.
Dr. Bloomfield further agreed with Dr. Beaty’s opinion that Dr. Lewis
deviated from the standard of care after examining Mary in the PACU
following her initial surgery. Dr. Bloomfield stated that based on Dr. Lewis’s post-operative progress note, “there was a significant suspicion that [Mary] was experiencing a compromise in function of her spinal cord into the thoracic spine.” Dr. Bloomfield explained, “Dr. Lewis had come to see [Mary] because of that suspicion. He examined her, found some findings that were abnormal[,] and then placed her on steroids . . . in the effort to reduce the irritation of the spinal cord hoping that that would help her spinal cord function recover.” Dr. Bloomfield testified, however, that the standard of care requires “that whenever a patient has a new neurological problem after surgery that can only be explained as a possible complication of the surgery[,] then an imaging study
10
is necessary emergently . . . to prove if there is pressure against the spinal cord as she did have later on the next day.” Dr. Bloomfield stated that taking such measures would give a patient who experienced pressure to his or her spinal cord the best chance for recovery.
On cross-examination, Dr. Bloomfield again testified that the St. Jude
leads were incompatible with the Boston Scientific Precision Spectra battery. Although Dyess, Boston Scientific’s sales representative, had stated that he did not know if the Precision S8 adapter was available at the time of Mary’s surgery, Dr. Bloomfield explained “that if the S8 adapter was requested prior to the surgery[,] it would have been made available.” And like Dr. Beaty, Dr. Bloomfield opined that “[i]f the S8 adapter was not available despite asking for it to begin with, then it would be a violation of the standard of care to try to place the St. Jude electrodes into a Boston Scientific battery that was not compatible with those leads.”
The Upchurches also called Dyess as a fact witness during their
case-in-chief. At the time of Mary’s surgery, Dyess worked as a Boston
Scientific medical-device sales representative, and his sales territory included Mississippi. Dyess stated that in June 2016, he had not been trained on and was not familiar with the Boston Scientific Precision S8 adapter. Dyess testified, however, that he never made off-label recommendations or those not approved by the Federal Drug Administration to doctors and patients. As a result, Dyess specifically denied ever representing to patients or physicians that a Boston Scientific battery would be compatible with St. Jude leads.
Although Dyess was present during Mary’s surgery, he refuted Dr.
Lewis’s earlier testimony that he (Dyess) had been present during the
pre-surgical consultation between Dr. Lewis and the Upchurches. Because he was present during Mary’s surgery, Dyess knew that Dr. Lewis had trouble fitting one of Mary’s St. Jude leads into the Boston Scientific battery. Dyess stated, though, that he was not close enough to the operating table to clearly see the reason for the difficulty. Dyess testified that from his vantage point, one of Mary’s leads appeared to fit into the Boston Scientific battery, while the other lead only partially fit into the new battery. Dyess stated that to the best of his knowledge, he did not remember seeing a corroded lead as Dr. Lewis had earlier testified.
By agreement, the parties played for the jury the videotaped deposition of Ranjan Nageri, who served as Boston Scientific’s designated corporate representative under Mississippi Rule of Civil Procedure 30(b)(6). Nageri stated that he had worked at Boston Scientific for thirteen years, had an
11
engineering background, held patents on several medical devices related to neurostimulation, and was familiar with the spinal cord stimulator systems that Boston Scientific manufactured and sold. Nageri testified that he was also familiar with the directions-for-use booklet that Boston Scientific had published on its Precision Spectra system. The Upchurches entered the
Precision Spectra’s directions-for-use booklet into evidence as an exhibit during Nageri’s testimony. Boston Scientific’s directions-for-use booklet on the Precision Spectra system reflected a copyright date of 2015, which was over a year prior to the June 15, 2016 surgery that Dr. Lewis performed to connect Mary’s St. Jude leads to the Precision Spectra battery.
During his video deposition, Nageri explained that the “Compatible
Leads” section of the directions-for-use booklet listed all the leads that Boston Scientific had tested and determined to be compatible with the Precision Spectra battery. Nageri confirmed that Boston Scientific designed and
manufactured all the listed compatible leads. He further confirmed that Boston Scientific did not design the Precision Spectra system to be compatible with leads other than those specifically identified and that an adapter was required to make the Precision Spectra battery compatible with leads manufactured by St. Jude, Abbott, or Medtronic. Nageri stated that Boston Scientific designed the Precision S8 adapter to make its Precision Spectra battery compatible with St. Jude and Abbott leads. Similarly, Boston Scientific designed the Precision M8 adapter to make its battery compatible with Medtronic leads. According to Nageri, Boston Scientific had determined after conducting research analysis that the leads had “different dimensional characteristics, . . . and for them to be suitably mechanically and electrically compatible with [the battery], we would need an adapter.” Nageri stated that he was uncertain when Boston Scientific’s Precision S8 adapter had become available for use.
The parties (also by agreement) played the video deposition of Dr.
Lewis’s designated expert neurosurgery witness, Dr. Warren Neely. Dr. Neely represented that he was familiar with spinal cord stimulators, batteries, and pain pumps as well as the procedures related to those devices’ implantation, replacement, and removal. He acknowledged, however, that about twenty years had elapsed since he last participated in a procedure involving the implantation of a spinal cord stimulator or battery. He further acknowledged that he had only assisted in the implantation of the spinal cord stimulator’s paddles and not the implantation of the spinal cord stimulator itself. Dr. Neely explained that because he did not perform such surgeries directly, he referred patients needing spinal cord stimulators or batteries to other physicians. Based on Dr. Neely’s lack of personal experience with the implantation of spinal cord stimulators and batteries, the circuit court only allowed him to testify as an
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expert in general neurosurgery.
Dr. Neely opined that Dr. Lewis did not breach the standard of care
owed to Mary in obtaining consent for and performing her surgery on June 15,
2016. Dr. Neely further opined that Dr. Lewis complied with the appropriate
standard of care in his diagnosis and treatment of Mary after her initial surgery.
Dr. Neely testified that a hematoma was a known risk of spinal surgery and
that the development of one after Mary’s surgery did not necessarily indicate
that Dr. Lewis had breached the standard of care.
On cross-examination, Dr. Neely acknowledged that Mary had her St.
Jude battery replaced in September 2015 without any compatibility issues
arising. He further acknowledged that Mary’s medical records indicated she
was being referred to Dr. Lewis for the replacement of her pain pump. Dr.
Neely agreed that if Dr. Lewis failed to explain to the Upchurches before
surgery that Mary’s leads might also need to be replaced during surgery, then
that omission would have resulted in a deviation from the standard of care. In
addition, Dr. Neely admitted that he had seen no consent form in his review of
Mary’s medical documents that specifically discussed the possibility of
needing to replace Mary’s leads during surgery.
In response to further questioning, Dr. Neely agreed that Dr. Lewis’s
own notes about his pre-surgical consultation with the Upchurches appeared
to indicate that Dr. Lewis was unsure if Mary’s St. Jude leads would be
compatible with the Boston Scientific Precision Spectra battery. While
reiterating that he did not perform the type of surgery that Mary underwent, Dr.
Neely acknowledged that not knowing before surgery if two types of systems
are compatible “[c]ould be” a deviation from the standard of care for
performing surgery.
Id. at *2-8 (alterations in original) (footnote omitted).
¶6. Dr. Lewis testified that he “at all times in [his] care and treatment of [Mary]
follow[ed] the standard of care” for a neurosurgeon. He further testified that he had the
proper equipment necessary to conduct the surgery. Dr. Lewis acknowledged that the
“directions for use” for the Boston Scientific battery did not list St. Jude products as
compatible, but he explained that “as surgeons, we use off label and mix and match all the
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time.” Moreover, he testified that in his thirty-three years of experience, he had used Boston
Scientific batteries with St. Jude leads with “[e]xcellent success.” Dr. Lewis explained that
in Mary’s case, there was unexpected difficulty with the second lead, specifically, “the
second lead was flimsy and corroded and . . . was not going to go all the way into the pulse
generator.” He agreed that the leads were “fine” during Mary’s prior surgery in September
2015, but he explained that “after [that surgeon] put the leads in[,] [the surgeon] used
Betadine and . . . some Vancomycin powder . . . that maybe contaminated the lead at that
time.”
¶7. “After considering all the parties’ testimony and evidence, the jury returned a verdict
in favor of Dr. Lewis and Jackson Neurosurgery and found that Dr. Lewis was not negligent
in his care and treatment of Mary.” Id. at *8. The circuit court entered a judgment on the
jury verdict. The Upchurches filed a motion for a judgment nothwithstanding the verdict
(JNOV) and a motion for a new trial, which the circuit court denied. Id. The Upchurches
timely appealed, and the case was assigned to the Court of Appeals.
¶8. On appeal, the Upchurches argued (1) the circuit court erred by denying their motion
for a JNOV and motion for a new trial because the overwhelming weight of the evidence
demonstrated that Dr. Lewis began surgery without compatible equipment and therefore
breached a surgeon’s nondelegable duty to be prepared for surgery, (2) the circuit court erred
by denying their motion for directed verdict on the issue of liability of the Merit Health
Rankin nursing staff, and (3) the circuit court erred by giving certain jury instructions.
¶9. “After the Upchurches designated their appellate record, Dr. Lewis and Jackson
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Neurosurgery sought to amend the designation to include over forty additional documents.”
Id.
The estimated costs of the amended record designation requested by Dr. Lewis
and Jackson Neurosurgery exceeded $30,000. The circuit court granted the
Upchurches’ request to assess the cost of an amended designation to Dr. Lewis
and Jackson Neurosurgery but also granted Dr. Lewis and Jackson
Neurosurgery leave to file another amended designation if they so chose.
Aggrieved by the circuit court’s order assessing the costs of the amended
designation to them, Dr. Lewis and Jackson Neurosurgery also appealed.
Id. The Court of Appeals consolidated the two appeals since they “stem[med] from the same
underlying matter[.]” Id.
¶10. On appeal, the Court of Appeals “reverse[d] the circuit court’s judgment and the
jury’s verdict in favor of Dr. Lewis and Jackson Neurosurgery and remand[ed] the case for
a new trial.” Id. at *2. The Court explained:
Upon reviewing the issues raised in appellate case number
2023-CA-01296-COA, we find, in light of the substantial credible evidence the
Upchurches presented through their fact and expert witnesses, there was
insufficient evidence to support the jury’s verdict in favor of Dr. Lewis and
Jackson Neurosurgery. Dr. Lewis’s own testimony constituted the only
evidence that the medical device he implanted during Mary’s surgery was
compatible with another manufacturer’s previously implanted medical device
and that his decision to “mix and match” different manufacturers’ medical
equipment complied with the standard of care.
After reviewing the record, we cannot find that Dr. Lewis was ever
tendered or accepted as an expert witness, and any testimony he gave regarding
the standard of care was improperly admitted. Dr. Lewis was the sole witness
to testify that mixing and matching different manufacturers’ medical
equipment complied with the standard of care. By contrast, the Upchurches
presented multiple expert witnesses who testified that performing Mary’s
surgery with only a different manufacturer’s medical device available breached
the standard of care. In light of this and the substantial evidence that the
Upchurches provided as to the standard of care and Dr. Lewis’s negligence in
causing Mary’s injuries, we find that insufficient evidence supported the jury’s
15
verdict. As a result, we conclude that the circuit court erred by denying the
Upchurches’ post-trial motion for JNOV.
Id. at *1-2. Because the Court of Appeals found this issue dispositive, it “decline[d] to
address the Upchurches’ remaining arguments on appeal[.]” Id. at *2.
¶11. Regarding Dr. Lewis and Jackson Neurosurgery’s appeal in Cause No. 2024-CA00396-COA, the Court of Appeals found “no error in the circuit court’s order assessing the
costs of an amended designated appellate record to Dr. Lewis and Jackson Neurosurgery”
and “therefore affirm[ed] the circuit court’s order at issue in Dr. Lewis and Jackson
Neurosurgery’s consolidated appeal.” Id. at *2.
¶12. Dr. Lewis and Jackson Neurosurgery timely filed a petition for writ of certiorari. In
their petition, they argued that the Upchurches failed to object to Dr. Lewis’s testimony on
the grounds that he had not been tendered as an expert witness and that the failure to object
constituted a waiver of the issue on appeal. Dr. Lewis and Jackson Neurosurgery asked that
the decision of the Court of Appeals be reversed and that the jury’s verdict be reinstated in
their favor.
¶13. Notably, the petition for writ of certiorari was filed only in Cause No. 2023-CA01296. The petition was not filed in and does not address Cause No. 2024-CA-00396, in
which the Court of Appeals affirmed the circuit court’s order assessing to Dr. Lewis and
Jackson Neurosurgery the costs of the amended appellate record designation. In other words,
Dr. Lewis and Jackson Neurosurgery do not seek review of or challenge that decision. As
a result, we affirm the decision of the Court of Appeals in Cause No. 2024-CA-00396
affirming the circuit court’s order granting the Upchurches’ motion to assess costs of record
16
on appeal.
DISCUSSION
I. Sufficiency of the Evidence as to Dr. Lewis and Jackson Neurosurgery
¶14. The Upchurches argue and the Court of Appeals agreed that insufficient evidence was
presented to support the jury’s verdict in favor of Dr. Lewis and Jackson Neurosurgery.
“This Court applies a de novo standard of review to a trial court’s denial of a . . . [JNOV].”
Miss. Transp. Comm’n v. United Assets, LLC, 188 So. 3d 508, 514 (Miss. 2016) (internal
quotation marks omitted) (quoting Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 948
(Miss. 2008)). “A motion for JNOV is a challenge to the legal sufficiency of the evidence,
and this Court will affirm the denial of a JNOV if there is substantial evidence to support the
verdict.” Id. (internal quotation marks omitted) (quoting Adcock, 981 So. 2d at 948). “This
Court will consider the evidence in the light most favorable to the appellee, giving the party
the benefit of all favorable inference[s] that may be reasonably drawn from the evidence.”
InTown Lessee Assocs., LLC v. Howard, 67 So. 3d 711, 718 (Miss. 2011) (alteration in
original) (internal quotation marks omitted) (quoting Spotlite Skating Rink, Inc. v. Barnes
ex rel. Barnes, 988 So. 2d 364, 368 (Miss. 2008)).
¶15. It is undisputed that Dr. Lewis was never tendered or accepted as an expert witness
at trial. Nevertheless, the record reflects that the Upchurches never objected to Dr. Lewis’s
testimony on the ground that he had not been tendered or accepted as an expert witness.
Because the Upchurches did not object, “any objection to Dr. Lewis’s testimony is waived.”
Upchurch, 2025 WL 2700957, at *12 (Wilson, P.J., dissenting) (citing Evans v. City of
17
Aberdeen, 926 So. 2d 181, 185 (Miss. 2006)).
¶16. In Evans, the City of Aberdeen filed a petition for writ of certiorari and “argue[d] the
Court of Appeals improperly dismissed Officer Perkins’[s] testimony when making its
decision, finding that the City failed to qualify him as an expert witness during trial.” Evans,
926 So. 2d at 185. The Court agreed and held as follows:
This Court repeatedly has held that in order to preserve error for appellate
review, a contemporaneous objection must be made, and if no objection is
made, the appellant waives the error. Mallard v. State, 798 So. 2d 539 (Miss.
2001); Smith v. State, 530 So. 2d 155, 161-62 (Miss. 1988). Because Evans
made no objection at the trial court level to the City’s failure to qualify their
witness, Evans waived the issue. The Court of Appeals, therefore, improperly
excluded Officer Perkin[s]’s testimony from its decision concerning the
circumstances surrounding the items found in Evans’[s] room.
Evans, 926 So. 2d at 185.
¶17. Here, as in Evans, “[b]ecause [the Upchurches] made no objection at the trial court
level to the . . . failure to qualify [Dr. Lewis], [the Upchurches] waived the issue. The Court
of Appeals, therefore, improperly excluded [Dr. Lewis]’s testimony from its decision
concerning the [weight and sufficiency of the evidence].” Id.
¶18. “At trial, Dr. Lewis testified that he was a board-certified neurosurgeon with
thirty-three years of experience and had performed the subject surgery numerous times.”
Upchurch, 2025 WL 2700957, at *13. “Dr. Lewis further testified without objection that his
treatment of Mary and use of a Boston Scientific pulse generator conformed to the standard
of care.” Id. Dr. Lewis’s unobjected-to testimony “became part of the evidence in the
case[.]” Id.; see also Evans, 926 So. 2d at 185.
¶19. The Upchurches question the value of Dr. Lewis’s testimony, stating his testimony
18
was “self-serving” and not “legally sufficient to support the jury’s verdict because his
testimony regarding the standard of care [was] subjective.” In support, the Upchurches cite
Bickham v. Grant, 861 So. 2d 299 (Miss. 2003).
¶20. In Bickham, the jury was instructed as follows:
You are instructed that you have heard from the expert witnesses who have
testified in the case differing views as to what would be the proper procedures
to be followed by Doctors Grant and Harris in their treatment of Tamara
Bickham. If you find from these opinions that two or more alternative courses
of action would be recognized by the profession as being proper and within the
standard of care and that Doctors Grant and Harris, in the exercise of their best
judgment, elected one of the proper alternatives you should find for Doctors
Grant and Harris.
Id. at 303 (emphasis omitted). The Court found the instruction “provide[d] a subjective
standard of care by the doctor regarding his own misdiagnosis.” Id. The Court explained:
[The] [i]nstruction . . . provides for an “in the exercise of their best judgment”
standard of care. The word “judgment” is not in and of itself subjective. The
word “judgment” used in connection with other words can certainly constitute
a subjective jury instruction, as with the phrase “in the exercise of their best
judgment.” These words together, not alone, are what amounts to a subjective
jury instruction.
. . . [A] defendant is generally entitled to an instruction that presents his side
of the case, if such instruction is a correct statement of the law. The
appropriate standard of care in a medical malpractice case is objective and
centers around exercising the degree of care, diligence, and skill ordinarily
possessed and exercised by a minimally competent and reasonably diligent,
skillful, careful, and prudent physician in that field of practice. What the
physician may have been thinking in “his best judgment” is irrelevant. What
the physician did in treating the patient is the key factor. Patients expect their
physician to always be exercising “their best judgment.” However, it is clear
that there are times where the physician’s best judgment regarding treatment
falls below the applicable standard of care. This is why instructions such as
[the one at issue] are misstatements of law as they hold the physician to his
own personal standard of care and not the standard of care applicable to
physicians in his area of practice.
19
Id. (citations omitted).
¶21. Here, unlike in Bickman, no such instruction was given to the jury. Instead, the jury
was specifically instructed that the “standard of care is an objective national standard” and
meant “that degree of reasonable diligence and skill ordinarily possessed and exercised by
a minimally competent neurosurgeon practicing throughout the United States under like or
similar circumstances.” Moreover, as the record reflects, Dr. Lewis testified to “[w]hat [he]
did in treating the patient[.]” Id. He testified, without objection, that he had the proper
equipment necessary to conduct the surgery and that he followed the standard of care for a
neurosurgeon. He then explained how he conformed to the standard of care. “Because the
[Upchurches] never objected to Dr. Lewis’s testimony, his testimony became part of the
evidence in the case, and it was sufficient to create a jury question on the issue and to sustain
the jury’s verdict.” Upchurch, 2025 WL 2700957, at *13.
¶22. “In a medical-malpractice action, the plaintiff carries the burden of proof at trial[.]”
Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013) (citing Palmer v. Biloxi Reg’l Med. Ctr.,
Inc., 564 So. 2d 1346, 1355 (Miss. 1990)). As a result, the plaintiff must produce “evidence
sufficient to establish the existence of the conventional tort elements of duty, breach of duty,
proximate causation, and injury.” Palmer, 564 So. 2d at 1355. Thus, the Upchurches not
only had to prove that Dr. Lewis breached the standard of care but that the breach
proximately caused the Upchurches’ injuries. Id. The Upchurches claim that Dr. Lewis
“began surgery without compatible equipment and therefore breached a surgeon’s
nondelegable duty to be prepared for surgery.” “The [Upchurches]’ theory of the case is that
20
Dr. Lewis breached the standard of care by attempting to use a Boston Scientific pulse
generator with a St. Jude lead, which ultimately required him to replace the St. Jude lead with
a Boston Scientific lead, which required a laminectomy, which caused Mary’s hematoma and
partial paralysis.” Upchurch, 2025 WL 2700957, at *13. Notably, Dr. Lewis testified that
because the St. Jude lead was damaged, i.e., “flimsy,” “corroded,” and “bent,” it “was not
going to fit any” adapter, battery, or pulse generator. (Emphasis added.) “Dr. Narlin Beaty,
testifying as an expert for the [Upchurches], agreed that if ‘the lead was misshaped or
damaged, it was ‘no longer appropriate to be implantable into any device.’” Id. (emphasis
added). In other words, because the existing St. Jude lead was damaged, it could not be used
with any device, regardless of the manufacturer. “Dr. Lewis’s testimony about the damaged
condition of the original St. Jude lead provided an additional basis for the jury to return a
verdict in favor of [Dr. Lewis and Jackson Neurosurgery].” Id.
¶23. The Upchurches assert that their motion for JNOV “was based upon the objective
unreasonableness of the jury’s verdict due to the vast disparity between (a) the mountain of
evidence presented that the subject medical devices were electronically and mechanically
incompatible and (b) the self-serving, anecdotal testimony provided by Dr. Lewis in favor
of compatibility.” But the jury heard all of the evidence, including testimony from the
Upchurches’ expert witnesses. “[A] plaintiff has the burden of proof, and must offer
evidence that persuades the jury. The jury [wa]s not required to believe or trust the evidence
submitted by the [Upchurches], and [wa]s free to accept all, part, or none of the
[Upchurches’] evidence.” Id. at *14 (internal quotation mark omitted) (quoting Thompson
21
v. Dung Thi Hoang Nguyen, 86 So. 3d 232, 236-37 (Miss. 2012)). “The jury could have
returned a defense verdict simply because it found that the [Upchurches’] experts were not
persuasive or credible.” Id.
¶24. “Dr. Lewis’s unobjected-to testimony provided a sufficient basis for reasonable jurors
to find that the [Upchurches] did not prove the essential elements of their claims.” Id. “The
conflicts in the testimony were appropriately submitted to and resolved by the jury at trial and
should not be reweighed by this Court on appeal.” Id. Considering the evidence “in the light
most favorable to [Dr. Lewis and Jackson Neurosurgery], giving the part[ies] the benefit of
all favorable inference[s] that may be reasonably drawn from the evidence[,]” we find
sufficient evidence was presented to support the verdict. Howard, 67 So. 3d at 718 (third
alteration in original) (internal quotation mark omitted) (quoting Barnes, 988 So. 2d at 368).
Accordingly, the circuit court did not err by denying the Upchurches’ motion for JNOV.
Thus, the decision of the Court of Appeals finding insufficient evidence to support the jury’s
verdict is reversed.
¶25. Having found sufficient evidence was presented to support the jury’s verdict in favor
of Dr. Lewis and Jackson Neurosurgery, we must consider and address the Upchurches’
remaining issues raised on direct appeal.
II. Weight of the Evidence as to Dr. Lewis and Jackson Neurosurgery
¶26. The Upchurches argue that the circuit court erred by denying their motion for a new
trial. “The standard of review on a motion for a new trial is abuse of discretion.” United
Assets, LLC, 188 So. 3d at 514 (internal quotation marks omitted) (quoting Johnson v. St.
22
Dominics-Jackson Mem’l Hosp., 967 So. 2d 20, 23 (Miss. 2007)). “‘The weight of the
evidence, rather than the legal sufficiency, is tested in a motion for a new trial,’ and this
Court “‘will only disturb a verdict when it is so contrary to the overwhelming weight of the
evidence that to allow it to stand would sanction an unconscionable injustice.”’” Id. (quoting
Johnson, 967 So. 2d at 23).
¶27. “Conflicting testimony does not evince overwhelming evidence; [w]here the verdict
turns on the credibility of conflicting testimony and the credibility of the witness, it is the
jury’s duty to resolve the conflict.” Williams v. State, 391 So. 3d 193, 198 (Miss. 2024)
(alteration in original) (internal quotation marks omitted) (quoting Wilson v. State, 343 So.
3d 1041, 1051 (Miss. 2022)).
Jurors are permitted, indeed have the duty, to resolve the conflicts in the
testimony they hear. They may believe or disbelieve, accept or reject, the
utterances of any witness. No formula dictates the manner in which jurors
resolve conflicting testimony into findings of fact sufficient to support their
verdict. That resolution results from the jurors hearing and observing the
witnesses as they testify, augmented by the composite reasoning of twelve
individuals sworn to return a true verdict. A reviewing court cannot and need
not determine with exactitude which witness or what testimony the jury
believed or disbelieved in arriving at its verdict. It is enough that the
conflicting evidence presented a factual dispute for jury resolution.
Id. (quoting Wilson, 343 So. 3d at 1051).
¶28. “Issues of fact and credibility are the primary responsibility of the trier of fact.
Accordingly, this Court should not reweigh the facts nor substitute its judgment for that of
the fact finder as to credibility issues.” Williams v. State, 391 So. 3d 1151, 1158 (Miss.
2024) (internal quotation marks omitted) (quoting McFadden v. Miss. State Bd. of Med.
Licensure, 735 So. 2d 145, 152 (Miss. 1999)).
23
¶29. The jury heard all of the evidence, including the Upchurches’ theory of liability. The
jury’s verdict was not “so contrary to the overwhelming weight of the evidence that to allow
it to stand would sanction an unconscionable injustice.” United Assets, LLC, 188 So. 3d at
514 (internal quotation marks omitted) (quoting Johnson, 967 So. 2d at 23). Accordingly,
the circuit court did not err by denying the Upchurches’ motion for a new trial.
III. Liability of Merit Health Rankin Nursing Staff
¶30. At trial, Dr. Lewis and Jackson Neurosurgery presented the deposition testimony of
registered nurse Stephen Furman. Furman was identified as an expert witness and testified
by deposition that the Merit Health Rankin nursing staff (nursing staff) breached the nursing
standard of care. After Dr. Lewis and Jackson Neurosurgery rested, the Upchurches moved
for a directed verdict on the issue of the nursing staff’s liability. The circuit court denied the
motion.
¶31. The Upchurches argue the circuit court erred by denying their motion for directed
verdict since “there was no evidence . . . the nursing staff caused or contributed to [Mary]’s
injuries.” They concede that Dr. Lewis and Jackson Neurosurgery “offered sufficient proof
to establish a breach in the nursing standard of care by the [nursing staff],” but they argue
that Dr. Lewis and Jackson Neurosurgery “presented no proof of proximate causation.”
¶32. “This Court conducts a de novo review of motions for directed verdict. . . . If the
Court finds that the evidence favorable to the non-moving party and the reasonable
inferences drawn therefrom present a question for the jury, the motion should not be
granted.” Forbes v. Gen. Motors Corp., 935 So. 2d 869, 872 (Miss. 2006) (alteration in
24
original) (internal quotation marks omitted) (quoting Entergy Miss., Inc. v. Bolden, 854 So.
2d 1051, 1055 (Miss. 2003)). “Additionally, this Court has held that a trial court should
submit an issue to the jury only if the evidence creates a question of fact concerning which
reasonable jurors could disagree.” Id. (internal quotation marks omitted) (quoting Bolden,
854 So. 2d at 1055).
¶33. At trial, Dr. Lewis testified that he left the hospital at 5:00 p.m. on the day of Mary’s
surgery and that he returned the next morning at 7:30 a.m. Upon his return to the hospital,
Dr. Lewis noted a decrease in Mary’s neurological function. Furman testified by deposition
that the nursing staff breached the nursing standard of care by failing to contact Dr. Lewis
after he left the hospital at 5:00 p.m. the day of surgery.2 Specifically, Furman testified as
follows:
Furman: So if we look at the progress note of Dr. Lewis, he wrote that:
Patient has slight or mild weakness of the left lower extremity,
as well as some numbness.
So “some numbness and weakness of the left leg” is what he
wrote in his 5:00 p.m. progress note on 6/15. And then when we
see—
Counsel: All right. So Dr. Lewis didn’t write anything about the right leg,
correct?
Furman: That’s correct.
2
While the Upchurches acknowledge that Furman “provided testimony that the [nursing staff] deviated from the standard of care in their care and treatment of [Mary],” they assert “Furman, as a nurse, is not qualified to make a medical diagnosis, he is not qualified to render an opinion as to medical causation.” But as the record reflects, Furman provided standard-of-care opinions against the nursing staff, and he agreed that he was not qualified to provide causation opinions.
25
Furman: So when we see [Nurse] Boyd’s assessment that she
documented at 7:15 p.m., she wrote that: Complains of left leg
without feeling and right leg numb.
So looking at Dr. Lewis’s assessment in which he made of
[Mary], we can see now there’s right leg numbness as well as
the left leg without feeling.
And there is a difference between slight weakness and
numbness versus the left leg being numb. And that, within itself,
is a change. It’s a neurological change. And it does not seem to
be—or did not seem that it was conveyed to Dr. Lewis.
Counsel: Okay. . . . Nurse Boyd’s note, because she made a finding—or
because she wrote something about the right leg being numb,
that is, in your opinion, a change?
Furman: It’s a change from when [Mary] was assessed by a
neurosurgeon.
Counel: Since he didn’t write anything about the right leg?
Furman: Correct.
Counel: Okay. But just so I am clear, even though the nursing
assessment did not change, you believe that Dr. Lewis should
have been contacted by Nurse Boyd since his note didn’t address
the right leg?
Furman: Well, plus, also in her note there’s a leg without feeling. So
there’s a difference between slight numbness, which means, you
know, the—when you lay on your arm and it falls asleep and it’s
tingly and it’s numb, versus I can’t feel anything. So completely
numb or without feeling is significantly worse than slight
numbness, or some numbness, should I say.
Counsel: All right. Well, Nurse Bullock on her first assessment, she just
says “right leg numb,” correct?
26
Furman: That is correct.
Counsel: All right. So she doesn’t say “slight numbness,” correct?
Furman: That is correct.
Counsel: And when she leaves, she says, “no improvement in leg
numbness,” when she left at 7:00, correct?
Furman: That is her . . . 6:30 [p.m.] note, yes.
Counsel: And then when Nurse . . . Boyd comes on at 7:00, she also
documents that the right leg is numb, correct?
Furman: She does, yes.
Counsel: Okay. So I’m just trying to make sure that I understand what
change it is that you are saying someone should have informed
Dr. Lewis of.
Furman: Sure. If Dr. Lewis assesses a patient and finds slight numbness,
slight weakness, and then I come in and I find something
significantly worse, then that warrants a phone call to the
physician to let that physician know that the assessment in
which I just performed is worse than what he performed some
hours ago.
¶34. Additionally, the Upchurches’ expert, Dr. Beaty, testified that “[t]he medical record
ha[d] glaring issues without documentation of change in [Mary’s] neurologic examination
from 5:00 p.m. to 7:00 a.m.” He explained:
There is a note from Dr. Lewis postoperatively which demonstrates a small but
present neurologic deficit. There are several notes from nurses which
document a large neurologic deficit. And the bottom line is nothing was done.
Nothing was done to address the neurologic deficit except the delivery of
steroid medication which, in fact, was not enough, as she remained weak with
sensory loss the morning after surgery.
. . . It is the standard of care to have a healthy communication system between
the nursing staff and the physician staff.
27
. . . I actually believe that Dr. Lewis had he known the patient was paraplegic
that this would have been addressed earlier. It’s difficult to know what
communications were exchanged between the nursing staff and Dr. Lewis as
those communications were not recorded. I think that when Dr. Lewis did
come back at 7:00 a.m. the patient was brought back to the emergency—to the
operating room eventually which may have helped the patient had that
occurred at 5:00 p.m.
And so like many things in this case, a failure of communication has led to this
poor outcome . . . a failure of communication with the hospital staff and Dr.
Lewis leading through a poorly documented examination which then was not
acted upon.
¶35. The Upchurches assert that although “Dr. Beaty . . . critici[zed] that there was no
communication from the nursing staff to Dr. Lewis on the evening o[f] June 15,” he
“provided no opinions that the [nursing staff’s] lack of communication caused or contributed
to [Mary]’s paralysis.” But again, Dr. Beaty opined that “a failure of communication has led
to this poor outcome” including “a failure of communication with the hospital staff and Dr.
Lewis[.]”
¶36. The circuit court found “a question of fact . . . exist[ed] for [the jury] to decide[].”
Based on the evidence presented, including Furman’s and Dr. Beaty’s testimony, we agree
and find the circuit court did not err by denying the Upchurches’ motion for directed verdict
regarding the nursing staff’s liability.
IV. Jury Instructions
¶37. The Upchurches argue that the circuit court erred by giving certain jury instructions.3
3
Dr. Lewis and Jackson Neurosurgery assert that the Upchurches waived this argument. But as the record reflects, the Upchurches filed their written objections to Dr. Lewis and Jackson Neurosurgery’s jury instructions, and those objections were noted by the circuit court and made part of the record.
28
“Jury instructions are generally within the discretion of the trial court and the settled
standard of review is abuse of discretion.” Moody v. State, 202 So. 3d 1235, 1236-37 (Miss.
2016) (internal quotation marks omitted) (quoting Bailey v. State, 78 So. 3d 308, 315 (Miss.
2012)). “This Court reviews jury instructions as a whole.” Id. at 1237 (citing Boyd v. State,
47 So. 3d 121, 123 (Miss. 2010)). “When those instructions, ‘taken as a whole
fairly—although not perfectly—announce the applicable primary rules of law . . . no
reversible error will be found.’” Id. (alteration in original) (quoting Boyd, 47 So. 3d at 124).
Jury Instruction No. 9
¶38. Jury Instruction No. 9, offered by Dr. Lewis as Instruction D-14, provided as follows:
The Court instructs the jury that you must not return a verdict against
the Defendant, Adam I. Lewis, M.D. simply because [Mary] Upchurch
suffered a hematoma and paraparesis following the surgery in question.
Instead, the burden is on the [Upchurches] to prove by a preponderance
of the evidence, each and every element of the Plaintiffs’ negligence claims
against Defendants, Dr. Adam I. Lewis and Jackson Neurosurgery Clinic,
PLLC. To do so, the [Upchurches] must prove by a preponderance of the
evidence not only that Dr. Lewis breached the standard of care, but also that
this breach, if such occurred, was the proximate cause of her injuries and
complications, and that the [Upchurches] suffered damages as a result of the
injuries claimed.
The Court further instructs the jury that these elements must be proven
as a reasonable probability; if the [Upchurches] prove no more than a
possibility that Dr. Lewis was guilty of negligence and/or no more than a
possibility that negligence on the part of Dr. Lewis caused [Mary] . . .
Upchurch’s injuries or damages, then you must find for Defendants, Dr. Adam
I. Lewis and Jackson Neurosurgery Clinic, PLLC.
¶39. The Upchurches assert that they “had four (4) separate negligence claims against [Dr.
Lewis] . . . and . . . only had to prove the elements of one of those claims to carry their burden
29
and potentially recover.” Yet Jury Instruction No. 9, according to the Upchurches,
improperly “instructed the jurors that [they] had to prove all of their negligence claims,
plural, against Dr. Lewis” as opposed to “any one” of those claims. The Upchurches further
assert that Jury Instruction No. 9 improperly instructed the jury “that Dr. Lewis was ‘the’
proximate cause of [their] injuries” as opposed to “a” proximate cause. But Jury Instruction
No. 9, when read in conjunction with other instructions, was not erroneous, and it properly
instructed the jury.
¶40. “The essential elements of a medical-malpractice claim that must be shown are: ‘(1)
the applicable standard of care; (2) a failure to conform to the required standard; and (3) an
injury proximately caused by a defendant’s noncompliance with the standard.’” Smith v.
Hardy Wilson Mem’l Hosp., 300 So. 3d 991, 997 (Miss. 2020) (quoting Norman v.
Anderson Reg’l Med. Ctr., 262 So. 3d 520, 523 (Miss. 2019)). “[T]he plaintiff must
demonstrate . . . through medical-expert testimony . . . that the [alleged] breach was the
proximate cause or the proximate contributing cause of the alleged injuries.” Id. (second,
third, and fourth alterations in original) (internal quotation marks omitted) (quoting Norman,
262 So. 3d at 523-24).
¶41. In addition to Jury Instruction No. 9, Jury Instruction No. 10, offered by the
Upchurches,4 was given and provided as follows:
The Court instructs the jury that if you find from a preponderance of the
evidence in this case that the standard of care required Dr. Adam Lewis:
(a) to not perform the June 15, 2016, surgery upon
4
Jury Instruction No. 10 was offered by the Upchurches as P-9.
30
[Mary] Upchurch without the proper equipment for surgery
(“proper equipment” may mean using or having available an S8
Boston Scientific Adapter or otherwise ensuring that the Boston
Scientific battery would be compatible with St. Jude
percutaneous leads); OR
(b) to examine or appropriately monitor or treat [Mary]
Upchurch immediately after being advised by the nursing staff
that she was having neurological issues with her legs on the
afternoon of June 15, 2016, and that Dr. Lewis failed to properly
examine or appropriately monitor or treat [Mary] Upchurch
during that time; OR
(c) to advise [Mary] Upchurch of all known or material
risks, benefits, and alternatives of her planned surgical
procedure including, but not limited to, the fact that if the
percutaneous St. Jude leads were not compatible with the
Boston Scientific battery that the percutaneous leads would be
replaced by surgical leads by the performance of a laminectomy
during that surgery, and that [Mary] Upchurch was not advised
of the material risks, benefits, and alternative for the
replacement of the leads and did not give her express informed
consent for the removal and replacement of the leads; OR
(d) to communicate properly with the nursing staff to
ensure that the neurological condition of [Mary] Upchurch’s
lower extremities was maintained on June 15 and 16, and that
Dr. Lewis failed to communicate properly with the Merit Health
Rankin nursing staff,
then Dr. Lewis was negligent, and if you further find by a preponderance of
the evidence that such negligence, if any, was a proximate and contributing
cause to [Mary] Upchurch’s injuries, then it is your sworn duty to return a
verdict against Dr. Adam Lewis.
¶42. Jury Instruction No. 10 properly sets forth the Upchurches’ four separate negligence
claims against Dr. Lewis and allows for recovery under any one of those claims, i.e., (a), (b),
(c), or (d). Moreover, Jury Instruction No. 10 instructed the jury that “if [it] further f[ound]
. . . that such negligence, if any, was a proximate and contributing cause to [Mary]
31
Upchurch’s injuries, then it [wa]s [its] sworn duty to return a verdict against Dr. Lewis.”
(Emphasis added.)
¶43. Additionally, Jury Instruction No. 5, offered by the Upchurches as P-1, instructed the
jury that
a “proximate cause” of an injury is a factor, which in natural and continuous
sequence, unbroken by an efficient intervening cause, produces or contributes
to the injury, and without which the results would not have occurred. There
may be more than one proximate cause to an injury.
¶44. “[W]e do not review jury instructions in isolation; rather, they are read as [a] whole
to determine if the jury was properly instructed.” Smith ex rel. Smith v. Miss. Coast
OB/GYN, 325 So. 3d 723, 734 (Miss. Ct. App. 2021) (first alteration in original) (internal
quotation marks omitted) (quoting Fred’s Stores of Miss., Inc. v. M&H Drugs Inc., 725 So.
2d 902, 917 (Miss. 1998)). “Therefore, [any] defects in specific instructions do not require
reversal where all instructions taken as a whole fairly—although not perfectly—announce
the applicable primary rules of law.” Id. (internal quotation marks omitted) (quoting Fred’s
Stores of Miss., Inc., 725 So. 2d at 917).
¶45. Here, we find the instructions, when “read as [a] whole . . . properly instructed” the
jury. Id. (quoting Fred’s Stores of Miss., Inc., 725 So. 2d at 917). As a result, the circuit
court did not err by giving Jury Instruction No. 9.
Jury Instruction No. 4
¶46. Jury Instruction No. 4 provided as follows:
The term “standard of care,” when used in these instructions, means that
degree of reasonable diligence and skill ordinarily possessed and exercised by
a minimally competent neurosurgeon practicing throughout the United States
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under like or similar circumstances. The standard of care is an objective
national standard.
¶47. The Upchurches agree that Jury Instruction No. 4 is a correct statement of the law.
But they claim that the circuit court erred by failing to include the following proposed
language: “The failure to meet the standard of care is negligence.”
¶48. The Upchurches argue that Jury Instruction No. 4 “did not include any alignment
between the failure to meet the standard of care and negligence” and that “[t]he jury was
therefore not properly instructed that the breach of the standard of care constitutes a negligent
act.” But as previously noted, Jury Instruction No. 10, offered by the Upchurches, instructed
the jury that if the jury found that Dr. Lewis breached the standard of care, then Dr. Lewis
was negligent. Reading the instructions as a whole, the jury was properly instructed. Id.
(quoting Fred’s Stores of Miss., Inc., 725 So. 2d at 917). Thus, the circuit court did not err
by giving Jury Instruction No. 4 and denying the Upchurches’ proposed language.
CONCLUSION
¶49. As to Cause No. 2023-CT-01296, we reverse the decision of the Court of Appeals,
and we reinstate and affirm the judgment of the Rankin County Circuit Court adopting the
jury’s verdict in favor of Dr. Lewis and Jackson Neurosurgery. We affirm the Rankin
County Circuit Court’s order denying the Upchurches’ motion for JNOV and new trial.
¶50. As to Cause No. 2024-CT-00396, we affirm the decision of the Court of Appeals
affirming the circuit court’s order granting the Upchurches’ motion to assess the costs of the
record on appeal.
¶51. AS TO CAUSE NO. 2023-CT-01296: THE JUDGMENT OF THE COURT OF
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APPEALS IS REVERSED. THE JUDGMENT OF THE RANKIN COUNTY
CIRCUIT COURT IS REINSTATED AND AFFIRMED. AS TO CAUSE NO. 2024-CT-00396: AFFIRMED.
KING AND COLEMAN, P.JJ., ISHEE, SULLIVAN AND BRANNING, JJ.,
CONCUR. RANDOLPH, C.J., AND WILSON, J., NOT PARTICIPATING.
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