author: ROY NOBLE LEE, Justice, HAWKINS, Justice, ROY NOBLE LEE, Justice, WALKER, Presiding Justice,

text:
    Dr. Max PHARR v. Gerald ANDERSON & Patricia Anderson, Individually and on Behalf of all Others Similarly Situated.
    No. 53666.
    Supreme Court of Mississippi.
    May 25, 1983.
    Rehearing Denied Sept. 14, 1983.
    C.R. Montgomery, S.F. Stater, III, Canton, for appellant.
    Johnson & Mills, Jerry L. Mills, Clinton, for appellees.
   PART I

ROY NOBLE LEE, Justice,

for the Court:

Gerald Anderson and Patricia Anderson filed suit against Dr. Max Pharr, Dr. Mary Wheatley, Nurse Patricia Nutter and St. Dominies Hospital in the Circuit Court of the Second Judicial District, Hinds County, Mississippi, seeking damages for malpractice which resulted in the death of their mother, Mrs. Joyce Anderson. The case was settled as to Dr. Mary Wheatley, Nurse Patricia Nutter and St. Dominies Hospital for the sum of $100,000, and it proceeded to trial against Dr. Max Pharr. The jury returned a verdict of $65,000 in favor of the appellees, judgment was entered in that amount, and Dr. Pharr has appealed here assigning six errors in the trial below.

Mrs. Joyce Anderson, age 41, had a long history of being a diabetic. Dr. Max Pharr had been treating her since 1976, and Dr. Mary Wheatley, a psychiatrist, had been treating her for approximately the same period. Mrs. Anderson had been admitted and discharged from hospitals by each doctor over a period of years. Both doctors were aware of the other’s treatment of her.

On January 15, 1979, Mrs. Anderson was admitted to St. Dominies Hospital at approximately 11:50 p.m. complaining of vomiting, diarrhea, and inability to eat. Dr. Joe G. Stribling, who was assigned to the emergency room, ordered various tests, determined that her blood sugar level was 431 mg., and she was admitted to the Intensive Care Unit. The next morning Dr. Pharr’s partner assumed the care of Mrs. Anderson, and after four days, she was released on January 20, 1979, with a final diagnosis of gastroenteritis.

Mrs. Anderson called Dr. Pharr on January 23, 1979, complaining about her condition, and he advised her to go to the emergency room at St. Dominies Hospital. He called there, made arrangements for her to be admitted to the emergency room, and ordered two series of drips, each one requiring six hours to complete, making a total of twelve hours. The time was around 2 p.m.

About 3:30 p.m., Mrs. Anderson became distressed. She was crying, screaming and uncontrollable, and Dr. Pharr, upon being called from the emergency room, advised the nurse to contact Dr. Mary Wheatley, the patient’s psychiatrist, about her condition. Dr. Wheatley went to the emergency room, examined Mrs. Anderson, prescribed sedatives for her, and was successful in calming her. She was in the emergency room about 1½ hours. Mrs. Anderson wanted to go home, and Dr. Wheatley stated that when she became quiet she could be discharged, and so told the nurse in charge, Patricia Nutter. Dr. Wheatley was listed on the hospital chart as the patient’s physician, along with Dr. Pharr. There was testimony, including that of Emergency Room Nurse Patricia Nutter, that Dr. Wheatley discharged Mrs. Anderson, but Dr. Wheat-ley denied she had done so. She did testify that she told the nurse that insofar as she, Dr. Wheatley, was concerned, the patient could go home. She left the emergency room for home at approximately six o’clock.

About twenty to thirty minutes after the patient’s discharge, Dr. Pharr went to the emergency room and hospital for the purpose of checking his patients. He inquired as to Mrs. Anderson’s whereabouts, and the nurse on duty advised him that she had been discharged, which was fine with Dr. Pharr. He did not examine her records to determine what treatment had been administered and what her condition was, according to the chart.

Mrs. Anderson’s condition grew worse at home, but no physician was called. About 2 a.m., January 24, her condition had worsened to the point that family members took her to the emergency room of St. Dominies Hospital, but, on the way, she stopped breathing and was pronounced dead on arrival at the hospital.

Except that he failed to review her chart of January 23 and failed to have her returned to the hospital for additional treatment, appellees do not contend that Dr. Pharr improperly treated Mrs. Anderson, or did anything wrong in his care or treatment of her. Further, that in so doing, or not doing, Dr. Pharr did not use or exercise the standard of care required in the Jackson area of a family physician.

Dr. Pharr contends that the standard of care does not require an attending physician, where another physician has entered the case and has discharged the patient, to do anything further insofar as reviewing records or attempting to return the patient to the hospital.

1.

Did the lower court err in holding that the appellees’ witness, Dr. John Cockrell, is qualified as an expert in the field of family medicine?

Dr. John Cockrell was the only expert witness who testified for appellees on the standard of care required of a physician under the facts of this case and on causal connection between the discharge (treatment) of Mrs. Anderson and her cause of death. His educational and employment background follows:

M.D. Degree — 1937 Columbia College of Physicians & Surgeons, New York
Internship & Residency — 1941 Presbyterian Hospital, New York
Resident Surgeon — 1940-42—Bassett Hospital, Cooperstown, New York
Lt. Commander, Public Health Service— 1943-46 — U.S. Marine Hospital, Buffalo, New York and Galveston, Texas
Chief of Surgery — 1946-55—Veterans’ Administration Hospital, Jackson, Mississippi
Chief of Staff — 1955-68—Veterans’ Administration Hospital, Jackson, Mississippi
Retired from Federal Service — 1968
Resident and Chief Pathologist — 1968-71 —University Hospital, Jackson, Mississippi
Pathology Instructor — 1971-77—Univer-sity Hospital, Jackson, Mississippi
Retired — 1977
Currently Assistant Clinical Professor of Surgery and Pathology, Jackson, Mississippi
Board Certified in Surgery and Anatomical Pathology Seventeen Publications Listed

In addition, Dr. Cockrell testified that he knew the standard of care as it applies to general practitioners because he had been associated with internists and general practitioners over the years, was Chief of Staff at Veterans’ Administration Hospital for thirteen years and supervised the Admissions Office, where his duties consisted of trying to solve any problems which arose. He stated that he had not been involved in anything resembling or applicable to the practice of family medicine, but that family practice of medicine is, not a great deal different than any other part of the medical practice and that anyone who knows the standard of care with reference to surgery or internal medicine would know the standard of care in general with reference to family practice.

In Early-Gary, Inc. v. Walters, 294 So.2d 181, 185 (Miss.1974), the Court discussed the test to be applied in qualifying a witness as an expert:

In order for one to qualify as an expert in the field, one must be shown to have acquired a special knowledge of the subject matter about which he is called to testify. This knowledge may be obtained by a study of recognized authorities or through practical experience. The question of whether the proffered witness has obtained the required degree of specialized knowledge within a particular field is a matter within the sound discretion of the trial court, and unless there is an abuse of that discretion, his determination will not be disturbed on appeal. Illinois Central R.R. v. Benoit Gin Co., 248 So.2d 426 (Miss.1971); Gulf, Mobile & Ohio R.R. v. Hollingshead, 236 So.2d 393 (Miss.1970); and Capital Transport Co. v. Segrest, 254 Miss. 168, 181 So.2d 111 (1965).

In the recent case of King v. Murphy, 424 So.2d 547 (Miss.1982), we held that an expert witness whose knowledge of, and familiarity with, the state-wide standard of care shall not have his testimony excluded. We are of the opinion that the lower court did not abuse its discretion in holding that Dr. John Cockrell was qualified as an expert witness in the field of medicine applicable to this case.

2.

Did the lower court err in allowing in evidence speculative testimony from appel-lees’ witness Dr. Paul Oliver about the deceased’s life work expectancy and earning capacity?

Dr. Paul Oliver is an Associate Professor of Economics at the University of Mississippi, which position he has occupied for the past fifteen years, teaching on both graduate and undergraduate levels. He holds the degree of Ph.D. in Economics from the University of Arkansas. Dr. Oliver testified as to the life expectancy of Mrs. Anderson, and indicated that, for the remainder of her work life expectancy, working at the rate of $3.50 per hour, she could be expected to earn a gross grand total of $175,448.00. Although the mortality tables refer to an average person in normal health, Mrs. Anderson was a diabetic and in ill health. However, the appellant had the right to show her physical condition and that she was not a healthy person, and the record so indicates. Mortality tables and such testimony are admitted only for the purpose of aiding and furnishing guidelines to the jury.

A more serious question arises with reference to testimony of Dr. Oliver referring to losses sustained by the daughter, Patricia Anderson, who was afflicted and needed constant care from other persons. Dr. Oliver gave testimony as to the loss of Mrs. Anderson as a caretaker for Patricia by computing $3.35 an hour for twelve hours per day, 365 days a year for forty years, which would amount to $560,000 as a gross amount over the life expectancy of Mrs. Anderson. However, Dr. Oliver did testify that he was not saying those figures would apply in this case but that he was simply giving a very broad guideline based on the hypothetical questions insofar as his reasoning and experience told him it would take to provide that type caretaker’s services in Mississippi; and that there would be a wide variation in the figures.

In our opinion that testimony of Dr. Oliver was highly speculative and improper. However, the verdict of the jury was only $65,000, which indicates that the jury was not influenced by it and that such testimony was harmless.

3.

Did the lower court err in granting Jury Instruction No. 27?

Instruction No. 27 in its final form, after being amended, follows:

The Court instructs the Jury that if you believe from the evidence in this case that Dr. Max Pharr ordered two intravenous drips for Mrs. Joyce Anderson that were to have lasted for over six hours and that further, Dr. Max Pharr prescribed medications for the difficulties being suffered by Joyce Anderson, and further, that upon being advised of the emotional condition of Mrs. Joyce Anderson, Dr. Max Pharr called in her psychiatrist, Dr. Mary B. Wheatley as a psychiatric consultant, and that Dr. Wheatley did in fact, treat Joyce Anderson for her emotional condition, and that after her treatment the patient was discharged from the emergency room of St. Dominic Hospital prior to the arrival of Dr. Pharr and prior to the orders of Dr. Pharr being completed, and if you further find that Dr. Max Pharr learned that Joyce Anderson had been discharged from the emergency room when he arrived to treat her, and if you further find that Dr. Max Pharr did not review the hospital records, and if you further find that he made no follow up contact to Joyce Anderson, and if you further find that in so acting, Dr. Max Pharr failed to exercise the care, skill and diligence that physicians in good standing in Jackson, Mississippi in the general practice have exercised in like cases, and that Dr. Max Pharr’s failure to exercise such care was the sole proximate cause or a proximate contributing cause of Joyce Anderson’s death, then your verdict shall be for the plaintiffs.

The appellant objected to the instruction on the grounds that (1) it was against the preponderance of the evidence and confused and misstated what the standard of care would be with reference to the inaction of Dr. Pharr, (2) the instruction gives an undue emphasis to certain elements of evidence which had been offered, and (3) that the reference to the violation of the standard of care is a misstatement of law.

The instruction followed the uncontra-dicted evidence to the point where it states, “... if you further find that in so acting, Dr. Max Pharr failed to exercise the care, skill and diligence that physicians in good standing .... ”

While some members of the Court think that the general negligence rule applies here instead of the standard of care, skill and diligence, under either theory the issue was properly submitted to the jury by the instruction and it does not constitute reversible error.

4.-5.

The appellant next contends (4) that the lower court erred in permitting the appel-lees to call Dr. Pharr as an adverse witness in order to establish the standard of care, and (5) the lower court erred in failing to sustain appellant’s motion for a remittitur. We have carefully examined those assignments of error and find that there is no merit in them.

PATTERSON, C.J., BROOM, P.J., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

WALKER, P.J., dissents.

PART II

HAWKINS, Justice,

for the Court:

Was a jury issue made on the question of negligence of Dr. Pharr?

It is the contention of counsel for Dr. Pharr that upon being informed Dr. Wheat-ley had authorized the discharge of his patient, he had no further duty or responsibility in reference to this hospital admission.

To answer this contention it is necessary to examine the relationship between Mrs. Anderson and Dr. Wheatley and Dr. Pharr, as well as the professional relationship between these two doctors.

Dr. Pharr’s candor is certainly commendable. He was his own worst witness on this question.

Dr. Wheatley’s medical practice was restricted to psychiatry, and Dr. Pharr knew this. He knew Dr. Wheatley had never undertaken the treatment of Mrs. Anderson’s diabetes, and that Dr. Wheatley never practiced general medicine.

Dr. Pharr, of course, knew Mrs. Anderson was a chronically and seriously ill diabetic. When she was admitted at 2:00 p.m., he ordered intravenous drips to last two consecutive six-hour periods. When the emergency room telephoned him Mrs. Anderson was having emotional problems, he notified the attendant to call Dr. Wheatley. He knew, therefore, that Dr. Wheatley’s treatment that afternoon would have been for her emotional problems.

When he arrived at the emergency room at 6:30 p.m., Dr. Pharr was informed Dr. Wheatley had discharged Mrs. Anderson. He, therefore, knew she had been discharged before the first drip had been completed. He did not look at her chart; he made no further inquiry. He admitted that had he looked at her chart, he would have confirmed what he then should have known: that this patient had gone home under the direction of the hospital before the medication which he had prescribed had been completed. Finally, he admitted that had he looked at Mrs. Anderson’s medical chart, he would have telephoned her to return to the emergency room.

We are not presented here with a case of another treating doctor for diabetes discharging Mrs. Anderson. To the contrary, Dr. Wheatley had nothing whatever to do with the treatment of Mrs. Anderson’s physical illness, and Dr. Pharr was aware of this.

We are compelled to agree with the circuit judge, therefore, that a jury issue was made on whether Dr. Pharr exercised a reasonable standard of care by omitting to take any. further action upon being told Dr. Wheatley, a psychiatrist, had released his patient.

AFFIRMED.

PATTERSON, C.J., and BOWLING, PRATHER and ROBERTSON, JJ., concur.

BROOM and WALKER, P.JJ., and ROY NOBLE LEE, J., dissent.

DAN M. LEE, J., not participating.

ROY NOBLE LEE, Justice,

dissenting to Part II:

Under the facts of this ease, I do not think that Dr. Max Pharr was liable as a result of the death of Mrs. Joyce Anderson, and I dissent from Part II of the majority opinion.

1.

The liability of Dr. Pharr is based solely upon the testimony of Dr. John Cockrell. He examined the medical records and testified that:

I have an opinion as to the cause of death of Joyce Anderson which is that Joyce Anderson died of a heart attack, cardiac arrest. It was a combination of two things that caused her heart attack, one was dehydration that she suffered as a result of the nausea and the vomiting and being unable to drink anything and the second contributory factor was the uncontrolled diabetes. I think she probably had a recurrence of the gastroenteritis which caused the nausea and vomiting and that was interrelated with the untreated diabetes. Mrs. Anderson must have been tremendously dehydrated.

Dr. Joe G. Stribling was the emergency room physician at St. Dominies Hospital on the day when Mrs. Anderson was admitted and had worked in such capacity since January, 1978. He testified:

However, I do recall that Dr. Wheatley approached me after the 23rd of January and I already knew that Mrs. Anderson had passed away. To the best of my knowledge, Dr. Wheatley asked me to review the records to see if, based on the information on the chart, I felt that there was anything that could have been done differently that would have affected the outcome and I told Dr. Wheatley after I had reviewed the record that based on the laboratory evidence alone, without my having seen or evaluated the patient, I did not see a problem with the patient having been discharged....
I do not feel that a blood sugar of 390 presents an acute situation which over a relatively short time span, say 24 to 48 hour period, a blood sugar of 390 would not be anticipated to cause any great difficulties to the patient....

Dr. Max Pharr testified that he knew Dr. Stribling or some other equally-qualified emergency room doctor was on duty at the emergency room of St. Dominies Hospital on the afternoon of January 23, 1979, and that he would have expected Dr. Wheatley and the staff at the emergency room to discuss and solve the treatment of Mrs. Anderson prior to discharging her from the hospital; that he saw no reason to look at the record when he got to the hospital since the patient had already been discharged and since the patient had already been discharged without following his orders, and since the patient wasn’t there to treat, even if he had the record; that it has not been a practice of his in twenty-five years to call patients back after they have been seen and discharged from the hospital; that when Mrs. Anderson was discharged he felt like they had adequately seen her and that’s what he depended on; that he expected Mrs. Anderson had received whatever treatment was necessary that she have before she was discharged; that he has been practicing in the Jackson, Mississippi, area for twenty-five years, knows the standard of care with reference to follow-up treatment of a patient such as Mrs. Anderson, and that the standard of care used in the Jackson, Mississippi metropolitan area by physicians would not have required him to call Mrs. Anderson after he had found she had been released from the emergency room of St. Dominies Hospital that evening.

Dr. John Evans Mann testified on behalf of Dr. Max Pharr. Dr. Mann graduated from the University of Mississippi School of Medicine in 1966, currently is on the faculty of the University Medical Center as Assistant Professor of Family Medicine, teaching residence parttime, and he qualified as an expert in the practice of family medicine in the Jackson metropolitan area, and on the standard of care and skill exercised by family physicians in the area.

Dr. Mann reviewed the records pertaining to Mrs. Anderson on the afternoon of January 23, 1979, and it was his opinion, after a review of those records and upon facts of the case presented to him, that Dr. Pharr did not violate any usual standard of care in the community and that:

Under a similar situation I would not have reviewed the records or called Mrs. Anderson or a similar patient to Mrs. Anderson on that evening if she had been seen by another physician and discharged from the emergency room. I don’t think Dr. Pharr violated any standard of care in the community of the Jackson, Mississippi, Metropolitan area by going to the emergency room and seeing that the patient was gone and had been discharged, seen, evaluated and discharged by another physician with a license to practice medicine in the State. There is no such thing among physicians in the Jackson, Mississippi, Metropolitan area as a partial discharge. Either you discharge a patient or you don’t discharge a patient. By the standard of care and customs of practice in the Jackson, Mississippi, area, the physician who sees and evaluates and discharges a patient takes full responsibility for that patient. There is no difference when you discharge a patient between delineating between a mental problem and a physical problem. When you discharge a patient, you discharge them period. By the custom and practice and standard of care, a physician who discharges a patient accepts full responsibility for that discharge once the discharge is made.

Dr. Mann further testified it was his opinion that Mrs. Anderson, who had been a long-standing diabetic, had heart attacks and for a substantial period of time prior to death, had been under various forms of stress, had hypertension, was substantially obese, and had, since adolescence, been a diabetic; that Mrs. Anderson died of a cardiac arrest, probably a myocardial infarction or heart attack, with subsequent arhythemia, or irregularity in the heart beat, which is the most common form of death after heart attack; that diabetics are three times to four times more prone to have heart attacks than the general population, and that the most common cause of premature death in diabetics is heart attack or kidney failure, which Mrs. Anderson has no evidence of on her previous records; that she was obese; that the risk factors for heart disease are diabetes, obesity, high blood pressure, and a family history which is in the hospital records, which he read; that the basis of the laboratory reports were not compatible with dehydration; none of the reports indicate anything to him that Mrs. Anderson was suffering from dehydration; and that he would be in disagreement with anyone who expressed an unequivocal opinion that dehydration was a major contributing factor of the cause of death of Mrs. Anderson.

Dr. Thomas M. Davis, a resident of Jackson, Mississippi, since 1937, graduated from Tulane School of Medicine in 1951. He is on the staff of the Baptist Hospital, St. Dominies Hospital, Doctors Hospital, University Medical Center, and Hinds General Hospital, and is a diplómate of the American Board of Family Medicine — Family Practice, and has been recertified. He is a fellow member of the American Academy of Family Medicine and a member of the American Academy of Family Physicians. Dr. Davis testified further that his practice entails the treatment of diabetes in patients. He testified he had examined the records pertaining to Mrs. Anderson, and was acquainted with the facts surrounding her admission and discharge on January 23, 1979, from the emergency room; that Dr. Pharr did not deviate from the standard of care expected within the Jackson metropolitan area of physicians under similar circumstances when he did not, upon going to the emergency room and learning that the patient had been discharged, take any further action in seeking out the patient or following up treatment on the patient; that when a physician discharges a patient from a hospital in the Jackson area, he assumes the responsibility that the patient has gained maximum care; that, in his opinion, the blood sugar level of 390 on the afternoon of January 23,1979, and Dr. Pharr’s treatment or nontreatment of that blood sugar level did not have any effect or connection with the death of Mrs. Anderson; that, in his opinion, Mrs. Anderson died of a heart attack or a myocardial infarction.

Dr. William Clyde Nicholas, a witness for Dr. Pharr, is a member of the staff at the University Hospital, Jackson, Mississippi, and qualified as an expert in the field of family medicine and diabetes. From an examination of the medical records relating to Mrs. Anderson, it was his opinion that Dr. Pharr did not violate any standard of care as related to Mrs. Joyce Anderson on the afternoon of January 23,1979, and that he would not suggest Dr. Pharr treat Mrs. Anderson any differently; that, in his opinion, Dr. Pharr acted appropriately within the standard of care in the Jackson, Mississippi, area in not reviewing the records of the patient or seeking further treatment for her on that evening; that he would have done nothing differently under the same circumstances, if he had been Dr. Pharr; that it was his opinion the cause of Mrs. Anderson’s death was a heart attack with the irregular heart action; that he did not find anything on the afternoon of January 23, 1979, or on the morning of January 24, 1979, that would lead him to believe Mrs. Anderson was dehydrated.

The recent case of King v. Murphy, 424 So.2d 547 (Miss.1982), stted the new standard of care in Mississippi which is required of a physician or surgeon in his field. That case, as do all other reported cases in this state, dealt with the actual treatment of a patient. No case has been cited to us involving malpractice under facts similar to the ones in the present case. It is uncontra-dicted that Dr. Pharr did not violate the standard of care required of a physician in the treatment or nontreatment of his patient.

In my view, the question here is not whether or not the standard of care required of a physician applies where Mrs. Anderson had been discharged by another physician, who had equal authority with Dr. Pharr and whose name appeared as treating physician on the patient’s card as prominently as that of Dr. Pharr. The question really is whether or not, when Dr. Pharr came to the emergency room and discovered that Mrs. Anderson had been discharged, he was under a legal duty to examine the chart and to obtain her return to the hospital. The question is different from that arising when a doctor’s patient is in the hospital under his care and he fails to exercise proper care or diligence in the treatment of, or in seeing, that patient.

Under the facts of this case, I am of the opinion that there was no legal duty upon Dr. Pharr, when he discovered that Mrs. Anderson had been discharged from the hospital by another competent, qualified and attending physician, to examine her chart and attempt to return her to the hospital. There being no legal duty upon the doctor, then there could be no negligence assessed against him. Therefore, he was entitled to a peremptory instruction against liability.

2.

The emergency room physician, who was in charge of the emergency room when Mrs. Anderson was admitted, and three other qualified family practitioners positively and unequivocally testified that Dr. Pharr acted according to the standard of care exercised by family practitioners, and other practitioners; that he violated no standard of care or policy of the profession; and that, had they been acting in his place, they would have done exactly as he did. The three doctors mentioned further testified that, in their opinions, Mrs. Anderson’s death was due to a cardiac arrest and that her treatment or lack of treatment on that particular day did not cause or contribute to her death. On the record so made, and upon those facts, in my opinion, the verdict of the jury was contrary to the weight of the evidence, and the case should be reversed and remanded for a new trial.

Being of the opinion that the case should be reversed, I dissent from Part II of the majority opinion.

BROOM, P.J., joins this dissent.

WALKER, Presiding Justice,

dissenting:

I am compelled to voice my dissent to the holding of the majority with reference to the liability of Dr. Max Pharr under the facts presented by the record in this case. The medical profession cannot live with this decision. We already have doctors leaving private practice because of the high costs of malpractice insurance. The very liberal interpretation of the majority as to negligence, and deviation from the usual standard of care of a physician, will have the effect of increasing the potential liability of every medical practitioner in this state, regardless of his specialty, and consequently will result in radically higher malpractice insurance premiums. The doctors will pass the cost of insurance onto their patients by increasing their fees and other charges. The medical insurance premium that the average family pays for protection against medical and hospital expenses are directly related to the costs of the services rendered by the medical profession and cases such as this increase and add to that burden dramatically. The majority opinion makes a medical practitioner a virtual insuror of his patient’s life.

The deceased, Mrs. Joyce Anderson, was forty-one years of age, a brittle diabetic who had suffered from diabetes since childhood. Mrs. Anderson was a very sick lady and not only suffered from a diabetic condition but had suffered heart attacks, suffered from obesity and hypertension (high blood pressure) and for a substantial period of time prior to her death had been under various forms of stress, and suffered from serious emotional problems which required the services of a psychiatrist. Medical testimony established that the most common cause of premature death in diabetics is a heart attack or kidney failure, and that the high risk factors for heart disease are diabetes, obesity, and high blood pressure, and, in Mrs. Anderson’s case her family medical history. Mrs. Anderson had all of these things.

For several years prior to her death on January 24, 1979, Mrs. Anderson had been under the care of Dr. Pharr for her physical condition and under the care of Dr. Mary Wheatley, a psychiatrist, for her emotional problems. On the day of her death, she had a combination of both. She first complained to Dr. Pharr from her home and related to him that she did not feel well. Dr. Pharr instructed her to go to the emergency room at St. Dominies Hospital, which she did. While in the emergency room, Mrs. Anderson became highly emotional and upset and virtually uncontrollable. Upon being notified,'Dr. Pharr instructed the emergency room to call Dr. Wheatley who went immediately to the emergency room and after awhile got Mrs. Anderson quiet and in control of herself. Mrs. Anderson did not want to remain in the emergency room and expressed her desire not to be admitted to the hospital, whereupon Dr. Wheatley instructed the emergency room staff that she could be released to go home. The emergency room staff discharged her on instructions from Dr. Wheatley.

A short time later, Dr. Pharr arrived at the emergency room and upon inquiring about Mrs. Anderson was told that she had been seen by Dr. Wheatley and discharged. Under these circumstances, Dr. Pharr had a perfect right to assume that, upon seeing Mrs. Anderson Dr. Wheatley had diagnosed her condition as being primarily emotional as opposed to physical and that upon getting her quiet had properly discharged her to go home.

Under these circumstances, Dr. Pharr was under no obligation to review Mrs. Anderson’s chart or record to determine whether the emergency room physician and nurses or Dr. Wheatley acted properly in discharging Mrs. Anderson. He had every right to assume that these people who were licensed in their profession had acted properly.

I am of the opinion that Dr. John Cock-rell, who was the only expert witness who testified for Mrs. Anderson on the standard of care required of a family physician, was not qualified to give such testimony. He admitted that he had not been involved in anything resembling or applicable to the practice of family medicine, nor had he ever been an emergency room physician. He was with the public health service from 1943 to 1946 and with the Veteran’s Administration from 1946 to 1968 when he retired from federal service. From 1968 to 1971 he was a pathologist with the University Hospital in Jackson, a pathology instructor from 1971 to 1977 at which time he retired for the second time. At the time of trial he was serving as an assistant clinical professor of surgery and pathology in Jackson. His board certification was in surgery and anatomical pathology. However, he made the broad, and, to me the unbelievable observation that he did not think the medical specialty called family practice of medicine “is a great deal different than any other part of the medical practice” and that anyone who knows the standard of care with reference to surgery or internal medicine would know the standard of care in general with reference to family practice. To me, such statements are nothing short of an absurdity. When anyone is being sued, as Dr. Pharr is in this case, and the verdict has the potential of being one that will destroy him financially and ruin his reputation in his profession and his liability rests upon the testimony of “an expert,” then such testimony should come from a “real expert” and not someone just vaguely familiar with the standard of care through “association over the years with internists and general practitioners.” Dr. Cockrell did not testify that he had ever discussed the standard of care with these doctors, so I assume that he had not. For these reasons, Dr. Cockrell should not have been allowed to testify as an expert on the standard of care in this case.

I am also of the opinion that neither the conduct of the emergency room physician nor nurses, Dr. Wheatley nor Dr. Pharr was a contributing cause of the death of Mrs. Anderson. After she returned home, she did not feel well and her condition worsened, yet she did not call Dr. Pharr or any other physician, nor did she return to the emergency room for treatment. After her condition became critical at home, Mrs. Anderson’s family attempted to return her to the hospital emergency room where she was pronounced dead on arrival. In my opinion, her own failure to seek medical help, after having been given relief earlier in the day at the hospital, was the sole proximate cause of her death.

I am therefore of the opinion that the judgment against Dr. Pharr should be set aside and this case reversed and rendered on the merits discharging Dr. Pharr from liability.

      . Dr. Wheatley was a licensed medical doctor who specialized in psychiatry.

      . I note that from 5:30 p.m. until almost 2 a.m. the following morning Mrs. Anderson’s condition worsened. None of her family attempted to call Dr. Pharr or any other physician and return her to the hospital.


source: Caselaw Access Project

author: PRATHER, Justice, HAWKINS, Justice,

license: Public Domain

text:
    Robert A. LADNER v. Alice Dianne McKay LADNER.
    No. 53565.
    Supreme Court of Mississippi.
    Aug. 24, 1983.

      Edward L. Cates, Jackson, for appellant.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This action is a bill for divorce and related matters filed by Alice Ladner against her husband, Robert A. Ladner, and it is based on habitual and excessive use of drugs by her husband. Robert Ladner cross-filed against his wife for divorce, and for related matters, on the ground of habitual drunkenness. The First Judicial District of Hinds County Chancery Court granted Mrs. Ladner a divorce as well as her other requests, except attorney’s fees. From such decree Mr. Ladner appeals to this Court on all affirmative relief granted his wife, and Mrs. Ladner cross-appeals regarding denial of her attorney’s fees.

The assignments of error by Mr. Ladner raise the following issues:

(1) The chancery court improperly admitted evidence offered by the appellee which was not disclosed through discovery requests.

(2) The chancery court erred in admitting testimony from a pharmacist since such information was allegedly privileged.

(3) The chancery court improperly granted a divorce to appellee on the ground of habitual and excessive use of opium, morphine or other like drugs.

Mrs. Ladner assigns the denial of her attorney’s fees and suit money as an abuse of discretion by the trial judge.

STATEMENT OF FACTS

Alice McKay Ladner and Robert A. Lad-ner were first married on October 7, 1961. They adopted one child, Robert McKay Lad-ner, who was fourteen years old at the time of this trial. Mr. and Mrs. Ladner were subsequently divorced in 1973. These parties remarried in 1974, and at that time Mrs. Ladner had been assured by her husband’s doctor that Ladner was free of drugs and alcohol. About six weeks after the remarriage of the parties, Robert Ladner began suffering from severe depression. He was described as being incapable of driving, working, or functioning generally. Robert Ladner, assisted by his wife, sought and secured medication from several doctors for his condition. These medications included barbiturates and amphetamines among other drugs. Some of the other drugs noted were Dalmane, Libriam, Ati-van, Nolundar, Mellaril, Sinequan, Vivactil, Talwin, and Tylenol No. 3 with Codeine, and were taken daily from 1974 to the time of separation in varying amounts. The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosage.

The use of the drugs, although prescribed, affected Mr. Ladner’s attitudes, actions, work habits, and family and social relationships. The work habits of Mr. Lad-ner became diminished with increased drug usage. He worked on an average of two days per week at his father’s insurance business, his usual days being Monday and Tuesday from 8:00 a.m. to 10:30 a.m. and other short irregular times through the remainder of the week. However, Mr. Lad-ner claimed that he sold insurance by phone from his home on other business hours. His wife denied this and recounted his activities at home as being hyperactive in the morning after taking Ritalin, and as being “immobile and non-functioning after taking his tranquilizers at the latter part of the day.” His non-business hours were spent at home in idleness or in agitation. Alice Ladner testified of efforts to help her husband and to allocate his drug dosage, but without success or help from her husband.

Social contacts with friends became nil. Only his family members came to visit the house. Additionally, Mr. Ladner thought people were following him. Household valuables disappeared from the household without explanation. The son’s savings account was spent by Robert Ladner to pay bills. However, Mr. Ladner continued to receive an income in 1980 of approximately $23,000 from his father’s business.

Mrs. Alice Ladner was the household manager. She performed most of the duties and responsibilities for the child and home. On occasion she had worked and earned $800 per month. However, she testified about a heart condition and of medical advice to terminate her work. She, nonetheless, did have a small “flea-market” business which she hoped would yield a future return. She testified of her husband being violent and abusive to her in the presence of their son.

The child, Robert, was nervous. He did not have friends to visit him at home and was inclined to psychologically based physical complaints.

Mrs. Ladner testified that because of her husband’s excessive and habitual use of the drugs and of the effects of the drugs on him she was forced to separate on September 1, 1980, and file this divorce bill. She charged as grounds habitual and excessive use of opium, morphine, or other like drugs and drunkenness on drugs. She additionally requested alimony, child custody of the parties’ fourteen year-old son, child support, exclusive use of the home with all the personal property, life and medical insurance for herself and the child, and attorney’s fees. Robert Ladner filed a cross-bill seeking a divorce on the ground of habitual drunkenness, together with a prayer for child custody and use of the home of the parties.

After extensive pleadings, discovery and testimony, the chancery court entered an order granting Mrs. Ladner a divorce, custody of the minor child, and exclusive use of the home of the parties for herself and the child with its furnishings, except personal items of Mr. Ladner. Mr. Ladner was made responsible for both indebtednesses against the home. Child support of $200 and alimony of $200 monthly was ordered to be paid by Robert Ladner. The life and medical insurance of Ladner was ordered to be kept in full force and effect for the benefit of the child. Each party was held responsible for their own attorney’s fees.

LAW

I.

The first issue to be resolved is whether the chancellor improperly admitted evidence offered by the appellee which was not disclosed to the appellant pursuant to discovery requests. Specifically, the appellant objected to Mrs. Ladner’s testimony concerning the list of drugs used by Mr. Ladner, and to testimony from Mrs. Norma Roach and Dr. Bruce Parks. We shall address each of these contentions separately.

A.

The basis of the objection to Mrs. Lad-ner’s description of the drugs resulted from her failure to list the names of each individual medication during a pretrial deposition. After appellant’s attorney stated his objection, Mrs. Ladner’s attorney read parts of that deposition into the record. The record stated:

Question: [by defense counsel] All right, now you say you’ve seen him take drugs. What drugs has he taken, Mrs. Ladner?
Answer: I really can’t remember.
Question: All right, now, who can remember?
' Answer: It was an assortment of tranquilizers, Ritalin. Several years ago I stopped dispensing Robert’s pills. I don’t do that anymore. I think he’s a grown man and he can take care of his own medication.
Question: You really didn’t answer my question so I am going to repeat it. Who has seen him take morphine and who has seen him take opium if you have not?
Answer: I couldn’t say.
Question: All right, who has seen him take morphine if you have not?
Answer: There again I don’t know.
Question: All right, who has seen him take drugs if you cannot tell us what drugs they are?
Answer: I really don’t know offhand.

Generally, “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...” Miss.Code Ann. § 13-l-226(b)(l) (Supp. 1982). And, the deponent is under the further duty to supplement those responses when such responses become incomplete or inadequate. Miss.Code Ann. § 13-l-226(e) (Supp.1982). Clearly Mrs. Ladner had the duty to supplement her deposition responses concerning the drugs used by her husband.

But, the question still remains as to what actions the chancellor should have taken, if any, upon learning that a discovery violation had occurred. If a party fails to obey a court order permitting discovery, the court may, in its discretion, refuse to allow the disobedient party to support her claims with the undisclosed evidence. Miss.Code Ann. § 13-l-237(b)(2)(B) (Supp.1982). We also believe that sanctions may be imposed for the failure to supplement even without a prior court order. Although there is no statutory authority for imposing sanctions without an order, courts have “an inherent power to protect the integrity of their processes” where statutory law provides no adequate remedy. See 8 Wright & Miller, Federal Practice and Procedure: Civil § 2050 (1970). Ordinarily, the discovering party would have no way of knowing that a response should have been supplemented until he finds out at trial. Thus, if this were the proper case, the trial judge would have been permitted to impose a sanction.

In our prior decisions, we have held that sanctions should be imposed where the disobedient party willfully neglected or declined to permit discovery, Harkins v. Paschall, 348 So.2d 1019 (Miss.1977), or where undue advantage and surprise results, McDaniel v. Mississippi Power & Light Co., 407 So.2d 112 (Miss.1981). We have also recognized, however, that the “lower court should be cautious in refusing to permit testimony ...” Clark v. Mississippi Power Co., 372 So.2d 1077, 1080 (Miss.1979). In other words, penal sanctions are not to be imposed per se for every discovery violation, and a determination of whether to impose such a sanction is ordinarily vested in the sound discretion of the trial judge.

It is our view that the trial judge under the circumstances came very close to abusing his discretion when he allowed Mrs. Ladner to testify, over timely objection, to the specific drugs taken by Mr. Ladner. In the view we take of the case, however, such error, if any, is not grounds for reversal.

We have explained fully in Part III of this opinion the substantive standards applicable where one seeks a divorce on the grounds that his or her spouse has been guilty of “habitual and excessive use of opium, morphine or other like drugs”. Miss.Code Ann. § 93-5-1(6) (1972). Suffice it to say that Mrs. Ladner was not required to prove the specific, technical drug titles. Without the disputed evidence, that which Mrs. Ladner did prove was more than sufficient to establish grounds for divorce. Stated another way, the disputed drug names constituted evidence at best cumula-five of what Mrs. Ladner had already proved.

Based on our careful review of the record, we are confident that the disputed evidence played next to no part in convincing the trial judge to grant the divorce. On the facts of this case we can say that the error, if any, was harmless beyond a reasonable doubt. See Miss.Sup.Ct.Rule 11.

B.

The appellant’s counsel also objected to any testimony from Mrs. Norma Roach because her name was not disclosed prior to trial. When this objection was made, ap-pellee’s counsel took his turn to read pertinent parts of the deposition into the record. The record stated:

Mr. Cates: [defense counsel] All right, what witnesses do you plan to call at this trial, Mrs. Ladner?
Answer: I haven’t even given a thought about it.
Mr. Cates: That’s a valid question for us and I will expect an answer within ten days so that I can ...
Mr. Tighe [complainant’s counsel] If we are able to furnish it within that time, we will certainly furnish it to you.

Section 13-l-226(b)(l) provides that parties may obtain discovery regarding “the identity and location of persons having knowledge of discoverable matter.” This discovery provision was adopted from the federal rules of procedure counterpart, and there are several federal cases construing this provision. Fed.R.Civ.P. 26(b). Generally, it is settled law that a party can discover from his opponent the names of occurrence witnesses. Brennan v. Engineered Products, Inc., 506 F.2d 299 (8th Cir.1974); Wirtz v. Continental Finance & Loan Co. of West End, 326 F.2d 561 (5th Cir.1964). But, it is also generally held that a party is not entitled to find out, by discovery, the prospective witnesses his opponent plans to call at trial. Griffin v. Memphis Sales and Mfg. Co., 38 F.R.D. 54 (N.D.Miss.1965); Padovani v. Bruchhausen, 293 F.2d 546 (2nd Cir.1961); Bell v. Swift & Co., 283 F.2d 407 (5th Cir. 1960); 8 Wright & Miller, Federal Practice and Procedure: Civil § 2013 (1970); but cf. U.S. Equal Employment Opportunity Commission v. Metropolitan Museum of Art, 80 F.R.D. 317 (D.C.N.Y.1978).

There are both advantages and disadvantages in requiring a party to divulge a list of witnesses to be called at trial. See generally Commentary — Discovery of Names of Trial Witnesses, 21 F.R.Serv. 33.316 (1955). One factor in favor of requiring an attorney to produce an advance witness list is the reduction in cost of litigation by eliminating the opposing attorney’s need to prepare for cross-examination or rebuttal of an occurrence witness who will not be used at trial.

There are also some valid arguments against such a requirement. See Fidelis Fisheries, Ltd. v. Thorden, 12 F.R.D. 179 (S.D.N.Y.1952). First, if the attorney only provides a list of those witnesses he intends to call, and not a list of all occurrence witnesses, then it is entirely possible that the discovering party will not learn of the existence of other occurrence witnesses. This would obviously frustrate the basic purpose in having a discovery procedure. Second, it could conceivably place an attorney in the difficult position of explaining away the failure to call an announced witness if he later chose not to use such a witness. Finally, and perhaps most importantly, counsel should be granted sufficient time to plan his trial strategy without interference during the early discovery stages.

In balancing these factors, several courts wait until the pretrial conference before requiring the parties to disclose their trial plans. Wright and Miller, supra; 2A Barron & Holtzoff, Federal Practice and Procedure § 650.1 (1961). We believe that discovery is more beneficial when an attorney learns of all occurrence witnesses. If a list of prospective witnesses is desired by a party, he may secure such an order at a pretrial conference before trial, but not at the discovery stage. Thus, we hold that the appellant, during discovery, was entitled to a list of occurrence witnesses and not a list of trial witnesses.

C.

The appellant made the same objection with regard to the appellee’s undisclosed expert witness, Dr. Bruce Parks. In resolving this issue, it should first be recognized that expert witnesses are treated differently than occurrence witnesses. Section 13-l-226(b)(4)(A) provides a special discovery procedure for expert witnesses. It states that “a party may through interrogatories require any other party to identity each person whom the other party expects to call as an expert witness at trial....” (emphasis added) Miss.Code Ann. § 13-1-226(b)(4)(A) (Supp.1982). Then, the court may, upon motion, permit discovery by other means. Id.

The language of the statute could not be more clear. Such information must be sought initially by interrogatory rather than by deposition. This, the appellant failed to do when he requested the information during a deposition; and, we cannot permit him to complain of a nondisclosure which he could have obtained by using the proper procedure. Interrogatories are initially required in such cases because they are less expensive, and the statutory procedure should be strictly followed.

II.

In his next assignment of error, the appellant contends that the chancellor committed error when he allowed testimony from Mr. Ladner’s pharmacist, W.C. Harris, Jr. The evidence introduced concerned the prescriptions that Harris filled for Ladner. Appellant’s counsel objected to this testimony on the basis that such evidence was a privileged communication under section 13-1-21 of the Mississippi Code Annotated (1972) (current version in Supp.1982). That statute provides in pertinent part that:

All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the patient.... (Emphasis added).

In construing this statute, our Court stated in Gulf, Mobile & N.R. Co. v. Willis, 171 Miss. 732, 157 So. 899 (1934), sugg. of error overruled, 158 So. 551 (1935), that the statute must be limited to its express language and clear purpose since it has the effect of preventing facts from being disclosed which would often be material to the case. This Court has frequently employed such reasoning in denying the statute’s application to professionals who are not physicians or surgeons. See, e.g. McCay v. Jones, 354 So.2d 1095 (Miss.1978) (opinion reviewing previous cases construing the physician privilege statute); Gulf, supra (a dentist is not a physician within the intent and meaning of the physician privilege statute); Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483 (1932) (nurse, as independent person, receiving medical confidences as such, is not within the physician privilege, but nurse acting as physician’s agent is within privilege); S.H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650 (1930) (chiropractors are not physicians and therefore are not within the privilege). We fail to see any substantial reason for requiring nondisclosure of communications between a pharmacist and his client where such communications contain material and relevant evidence. We hold that the privilege statute does not extend to pharmacist-client communications.

III.

The crucial issue to be resolved in this case is whether the chancery court properly granted Mrs. Ladner a divorce as a result of Mr. Ladner’s use of drugs. In this state, an innocent spouse has the statutory right to acquire a divorce from a spouse who habitually and excessively uses opium, morphine or other like drugs. Miss.Code Ann. § 93-5-1 (1972).

Section 1-3-65 of the Code provides that “all words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning. ...” Miss.Code Ann. § 1-3-65 (1972). Our divorce statute uses the terms “habitual,” “excessive,” and “other like drugs.” Each of these terms must now be defined.

A.

First, we think that the term “habitual” obviously requires more than an occasional indulgence in drugs. Nor do we believe, however, that the complainant should be required to prove that the guilty spouse uses drugs entirely or exclusively. Instead, the term “habitual” requires the complainant to show that the defendant customarily and frequently uses drugs. See Black’s Law Dictionary 640 (5th ed. 1979).

B.

Two jurisdictions have considered the “excessive” requirement, either explicitly or implicitly, in divorce cases based on the use of drugs. The Supreme Judicial Court of Massachusetts held that the mere use of drugs was not a ground for divorce, but that an abuse of them must be shown. Jasper v. Jasper, 333 Mass. 223, 129 N.E.2d 887 (1955). The Massachusetts court added that the fact that the defendant took drugs on the advice of her physician, and that such use would probably continue throughout her life, did not state a ground for divorce. In Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479 (1910), a wife was denied a divorce even though her husband admittedly used morphine habitually. The morphine habit had been acquired through the long use of such drugs to alleviate pain caused by an incurable malady. The North Dakota court reasoned that if such a habit is reasonably and necessarily caused by conditions over which the victim has no control, it would be manifestly harsh to subject that party to the undeserved punishment of a divorce.

We think that the term “excessive” requires an abuse of drugs. In other words, the guilty spouse must be so addicted to the use of drugs that he cannot control his appetite for drugs whenever the opportunity to obtain drugs is present. However, we consider it a justifiable excuse for such behavior where, as in the Rindlaub case above, the defendant is prescribed such drugs by a physician for legitimate reasons.

C.

Finally, we must determine what is meant by the language “other like drug.” The leading Mississippi treatise on the subject suggests:

Looking to the purpose to be served by the statute, namely the protection of the innocent spouse and the family, it would seem to be a logical and fair interpretation of the statute to say that it was intended to include all drugs then known, or thereafter discovered or concocted which produce substantially the same effect as opium and morphine, when used in excess. In other words, “other like drug” should be construed to mean “other like drug in effect.” So far as the kind of drug is concerned, chemical content is not important, but effect caused by use is the test. The statute should be construed in such manner as will be for the protection of the innocent spouse, and if it be shown that by reason of the use of any habit forming drug or concoction, the defendant is rendered irresponsible or reckless, it is sufficient in so far as the kind of drug required by the state is. concerned. (Emphasis added). [Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 3.13 (1957) ].

In the scant number of statutes and cases which have addressed this problem, effect caused by use of the drug seems to be the key. For example, in North Dakota, an individual may obtain a divorce from another whose use of drugs either “disqualifies the person a great portion of the time from properly attending to business,” or inflicts “a course of great mental anguish upon the innocent party.” N.D.Cent.Code § 14-05-08 (Supp.1981). In Rindlaub, supra, the Court noted that the defendant was an eye, ear and nose specialist who performed several successful surgeries on patients inspite of his morphine addiction. The court then ruled that the plaintiff had failed to prove that the defendant was incapacitated or disqualified from, attending to business a great portion of the time.

We choose to construe the language “other like drug” as meaning “other like drug in effect.” Consequently, lower courts must find such adverse effects as those which would result from the habitual and excessive use of morphine or opium. Obviously, such factors as the guilty spouse’s inability to support his wife and family or to properly attend to business should be considered. Additionally, the guilty spouse’s incapacity to perform other marital duties or his causing the marital relationship to be repugnant to the innocent spouse are equally important. None of these factors should be regarded as a necessary condition, however, before granting a divorce. Instead, they should be considered together with any other relevant circumstances.

D.

Perhaps, a summary is warranted. A complainant must prove (1) that the guilty spouse’s use of drugs was habitual in that it was customarily and frequently indulged; (2) that the guilty spouse’s drug use was so excessive that he did not have the ability to control his appetite for drugs; and, (3) that the drugs used were morphine or opium or comparable to morphine or opium in effect.

(1) Applying these tests to the factual situation of the case sub judice, the facts evidenced a daily use of drugs by Robert Ladner from 1976 to the time of separation in 1980. This testimony came from not only Ladner’s wife, but was brought out by the pharmacist’s records. The record substantiates an habitual routine and custom of drug usage.

(2) Ladner had lost control of his appetite for drugs as shown by his abuse of the prescribed dosage. At one time Ladner received prescriptions from more than one doctor to satisfy his needs, without one doctor knowing of the other’s activities. The misrepresentations of usage and activities made by Ladner to his physicians further evidenced his loss of control to conclude excessive use.

(3) As to the type of drugs taken by Ladner, no testimony showed use of morphine or opium. The list of prescription drugs included: barbiturates, amphetamines, Dalmane, Libriam, Ativan, Ñolun-dar, Mellaril, Sinequan, Yivactil, Talwin, and Tylenol No. 3 with Codeine.

The effect testified to by Ladner’s family upon Mr. Ladner evidenced a physical effect upon him similar to morphine or opium. His actions evidenced extremes of hyperactivity or of stupidity, but not what is considered normal behavior. In addition to the physical effects on Ladner, other adverse effects occurred in his work habits and social and family relationships. Financial strain was felt within the family. These adverse effects are also those evidenced by families where narcotic drugs are used habitually and excessively. We, therefore, conclude that all three tests are met in this case; the defendant used habitually and excessively drugs comparable in effect to opium and morphine. The chancellor was correct in granting a divorce to Mrs. Ladner on the ground alleged.

Other errors assigned, relating to child custody, support, alimony, use of the home, and financial matters, were supported in the record by substantial proof. We hold that the chancellor did not abuse his discretion in these adjudications.

Regarding the denial of the divorce to the cross-complainant, Robert Ladner, the record is devoid of sufficient proof to sustain this request on the ground of Mrs. Ladner’s habitual drunkenness. This also is affirmed.

The cross-appeal here presents the question of the denial of Mrs. Ladner’s attorney’s fees. This is discretionary with the chancellor. We find no abuse of his discretion. Therefore, we affirm his order and also deny the motion for attorney’s fees to her on this appeal.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, DAN M. LEE and ROBERTSON, JJ., concur.

HAWKINS, J., dissents.

BOWLING, J., not participating.

HAWKINS, Justice,

dissenting:

I respectfully dissent. The majority’s holding relative to a party’s inability to obtain prior to trial the names of the witnesses his adversary intends to call, in my view, violates the letter and spirit of the discovery statutes. The cases cited by the majority support an entirely separate and distinct discovery principle, and the majority opinion is unsound.

As the majority notes, defense counsel asked the plaintiff during a discovery deposition the names of the witnesses she planned to call at trial. She replied she had not given a thought to it, and defense counsel asked for an answer in ten days. Plaintiff’s counsel responded that if they were able to furnish the answer within that time, he would certainly furnish it to the defendant.

No answer was forthcoming, and nine months later, during the course of the trial, Mrs. Norma Roach was tendered as a witness. Defense counsel objected, urging that her name had not been furnished at any time prior to trial. Plaintiff’s counsel argued that in order for defendant to be entitled to the name of such witness, he should have made a motion to compel discovery. The chancellor ruled he had a wide discretion in the matter, and permitted the witness to testify.

The majority detects nothing amiss in the one hundred percent failure of plaintiff to enlighten the defendant of the name of a witness until the lady took her seat in the witness box. I do.

The majority holds that a party may not during discovery obtain from his adversary the names of witnesses to be adduced at trial. The majority does not enlighten us as to how a party may ever obtain such information prior to trial.

That the names of witnesses who actually testify at a trial are discoverable at some time prior to trial should be one of the most fundamental principles of discovery. Without this, discovery is meaningless.

In this case, when the plaintiff was asked to name the witnesses she planned to call at trial, she replied she did not know. This is understandable. At that time the defendant may not have been entitled to require plaintiff to make such determination or answer the question. This is what the cases cited in the majority opinion are all about: a party seeking to compel his adversary— months or perhaps a year or more prior to trial — to name the witnesses he expects to call at the actual trial. Courts have generally held that a party cannot compel his adversary to name far in advance of trial who he plans to call as trial witnesses.

This is not the issue in this case, however. In this case we are talking about obtaining upon request the name of a trial witness a sufficient length of time prior to actual trial in order to afford a party an opportunity to interview such witness, or at least know something about him, and not be caught by surprise.

The majority tells us he cannot get any such name, unless he requests a pre-trial conference, which the trial judge may or may not see fit to call, and which can be held as late as ten days prior to actual trial. Miss.Code Ann. § 11-1-6 (Supp.1982).

In federal courts an additional pre-trial procedure prevails than in our state courts. In federal courts there is a mandatory pretrial conference which usually takes place at least a month prior to actual trial, sometimes much longer. At this pre-trial conference, the parties are required to have prepared a proposed pre-trial order and in this order the names, addresses, and telephone numbers of all trial witnesses must be listed. In a United States district court a party knows as a matter of course that he is going to know at least a month prior to trial the names and addresses of all witnesses the opposing party will call at trial. The precise issue of this case, therefore, never arises in United States district courts. Any trial attorney knows of a certainty, however, that the name and address of a witness he calls at trial had better be listed on that pre-trial order.

We have no mandatory pre-trial conferences or pre-trial orders in our state procedure. Absent this, it would seem abundantly clear that a party is entitled to know the names of trial witnesses at some reasonable time prior to trial. A trial witness is manifestly a person “having knowledge of any discoverable matter.” Miss.Code Ann. § 13-l-226(b)(l) (Supp.1982). When a party is called upon either through an interrogatory or at a deposition to name the witnesses he proposes to use at trial, he may not know. Later, and at some time prior to trial, though, he does know. He then has a duty to supplement his previous response. Miss.Code Ann. § 13-l-226(e)(l) (Supp. 1982).

This is so fundamental, so basic to the purpose of pre-trial discovery, that I am at a loss to see how it can be denied. In my view, it is vain to extenuate this basic proposition.

William Howard Taft, when he was a state judge, observed that “witnesses do not belong to one party more than to another.” Shaw v. Ohio Edison Co., 9 Ohio Dec. 809, 812 (1887). And, it has been recognized that “the broad purpose behind the deposition and discovery rules was to take the sporting element out of litigation.” 4 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 26.57[4] at 26-212 (2d ed. 1983).

Following the adoption of discovery statutes, our decisions have not taken lightly the failure of a party to reveal discoverable matter, including names of witnesses. See Huff v. Polk, 408 So.2d 1368 (Miss.1982); Clark v. Mississippi Power Co., 372 So.2d 1077 (Miss.1979); Harkins v. Paschall, 348 So.2d 1019 (Miss.1977); and especially Square D Co. v. Edwards, 419 So.2d 1327 (Miss.1982). Cf. McDaniel v. Mississippi Power & Light Co., 407 So.2d 112 (Miss. 1981).

The majority evades the sound lessons of these eases by the untenable argument that there was no obligation on the part of the plaintiff to ever name the witness until she sat in the witness chair.

In my view, the majority has committed a fundamental error in failing to hold there was .a positive duty on the part of the plaintiff in this case to name the witnesses she proposed to call at some meaningful time prior to trial.

I cannot concur in this equivocation.

The discovery statutes are plain; their purpose is plain. I do not care to participate in their being pared away piecemeal, either by ignoring them, or by hypertechnical construction, or for some reason which is psychological rather than legal.

No discovery statute or rule is more important than another. In my view the majority decision constitutes authority for the proposition that a discovery rule may or may not be applied at the pleasure of some judge.

I have voted for their enforcement. Under the authority of this case, I cannot in good conscience do so again. What farewell toast shall we propose to the short and not too happy life of the discovery statutes?

      . Since our discovery statute is in many respects identical to the comparable federal rule on sanctions for discovery violations, we would like to call attention to the analysis of this issue in the Wright & Miller text. It states:
      There is some theoretical difficulty in divining the source of the power to impose these sanctions. Rule 37, the general rule on sanctions, has no application. Failure to supplement a response — or making an incorrect response in the first instance — is not one of the kinds of flagrant misconduct listed in Rule 37(d) for which the sanctions of that section are available. The sanctions of Rule 37(b) may be imposed only for violation of a court order under Rule 35 or Rule 37(a) requiring a party to provide or permit discovery. In the situation presently being considered there will have been no opportunity for such an order....
      In the absence of a rule speaking to the question, reliance must be on the inherent power of the court. There has been a reluctance to use inherent power as the basis for sanctions, and it would have been desirable to tie Rule 37 directly to the situation here being discussed, but since this was not done the courts must be held to have inherent power to protect the integrity of their processes by imposing sanctions for giving an incorrect response and for failing to supplement a response.

        The court necessarily has wide discretion in these matters. Because it has power to impose a sanction does not mean that it is required to do so. In the most common situation, in which a party has not given the name of a person with knowledge of discoverable facts, the court should consider the explanation, if any, for the failure to name the witness, the importance of the testimony of the witness, the need for time to prepare to meet the testimony, and the possibility of a continuance. In the light of all these factors it may then determine to permit the witness to testify, or it may exclude the testimony, or it may grant a continuance so that the other side may take the deposition of the witness or otherwise prepare to meet the testimony. [Id.]

      . The Mississippi Supreme Court recently considered the use of interrogatories to discover the identity of experts and the subject matter of their testimony in Square D Co. v. Edwards, 419 So.2d 1327 (Miss.1982).

      . The effective date of the amended statute was April 15, 1982. It has also been brought to our attention that a new amendment to the statute, to take effect on July 1,1983, will extend application of the privileged communications statute to other health care providers, such as pharmacists. Act of March 9, 1983, 1983 Miss.Laws ch. 327.

      . The use of drugs may constitute a ground for divorce under some circumstances in other states. See, e.g. Ala.Code § 30-2-l(a)(6) (1975) (addiction to habitual use of opium, morphine, cocaine or other like drug); Me.Rev. Stat.Ann. tit. 19, § 691(1)(E) (1964) (gross and confirmed habits of intoxication from use of liquor or drugs); Mass.Ann.Laws ch. 208, § 1 (Michie/Law Co-Op 1981) (gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs); R.I.Gen.Laws § 15-5-2 (re-enactment of 1969) (habitual, excessive, and intemperate use of opium, morphine, or chloral); W.Va.Code § 48-2^(a)(6) (Supp. 1982) (addiction to habitual use of any narcotic or dangerous drug).

      . See also Burt v. Burt, 168 Mass. 204, 46 N.E. 622 (1897) (statute authorizes divorce for abuse of drugs; the use must be excessive and produce a certain result).

      . The evil effects resulting from the continued and excessive use of opium or morphine are well known. They interfere as much, to. say the least, with the happiness of married life, and produce other effects upon the marriage relation as deplorable, as those resulting from the excessive use of intoxicating liquors. Gowey v. Gowey, 191 Mass. 72, 77 N.E. 526 (1906) (defendant’s appearance and conduct was attributed to addiction from excessive and continued use of opium).

      . Well now, this statement may not be precisely accurate. How so? Ask the busy trial judge to hold a pre-trial conference. He responds: “Why do you need a pre-trial conference in this case?” To which there is the reply: “So you can order the other side to tell us the names of the witnesses they plan to call at trial, which they have failed and refused upon request to do.”
      Isn’t this a marvelous conservation of judicial time and attention, as well as a saving of litigation expenses? Trial judges and lawyers will certainly be grateful for this. By this route, a party might get the names of witnesses ten days prior to trial. Miss.Code Ann. § 11-1-6 (Supp.1982).

      . For example, the banner case cited by the majority, Fidelis Fisheries, Ltd. v. Thorden, 12 F.R.D. 179 (S.D.N.Y.1952), held that a party could not, far in advance of trial, compel his adversary to name the witnesses he proposed to call at trial. In that case, however, the court had a rule requiring a party to serve upon the other the names of witnesses he planned to call at trial. Further, in overruling the motion to compel, the court order provided that in the event the name of a trial witness was not on the list served, the name of any such witness to be called would be promptly furnished to the opposing party promptly after ascertainment. These two important safeguards are missing in Mississippi procedure.

        Griffin v. Memphis Sales & Mfg. Co., 38 F.R.D. 54 (N.D.Miss.1965), cited by the majority, likewise held that a party could not be compelled to state far in advance of trial the names of witnesses he expected to call at trial. That is all this case held.
      Even here, however, federal courts are by no means in agreement. In U.S. Equal Employment Opportunity Commission v. Metropolitan Museum of Art, 80 F.R.D. 317 (S.D.N.Y.1978), the district judge required disclosure of the names of trial witnesses. And, in Lewis v. J.P. Stevens & Co., Inc., 20 F.R.Serv.2d 1091 (D.S. C.1975), the district judge stated:
      The plaintiffs contend that they have not made a definite decision as to which witnesses will be called. This case was filed in 1972 and discovery has been in process since that time. The plaintiffs should know by now who will be called as a witness, and if they do not know, the answer to this interrogatory will assist them in the preparation of their case. (Id. at 1092) (emphasis added).

        Finally, the following is stated in Moore’s Federal Practice:
      Since a party clearly can ascertain the names of all persons who might be witnesses, under the specific provision for discovery as to “the identity and location of persons having knowledge of any discoverable matter,” no good reason is seen why he should not have the right to learn, at some reasonable time before trial, which of these persons will be witnesses. The adverse party need not be ineluctably bound to use all of the witnesses at the trial, nor precluded from using other witnesses if their existence or the relevance of their testimony is discovered at a later time, if notice is given or circumstances otherwise justify it. (4 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 26.57[4] at 26-213 —26-214 (2d ed. 1983) (emphasis in original).

      . In part I-A. of its opinion (dealing with the failure to provide a list of medication used by Mr. Ladner), the majority does pay lip service to the requirements of the discovery statutes. It should be noted, however, that in Square D even a' good faith failure to respond to discovery matter was held by this Court to be ground for reversal.

      . This Court has done the same thing in criminal cases. The criminal rules require parties upon request to disclose the names of witnesses they propose to offer at trial. Miss.R. Crim.P. Rule 4.06. See Spots v. State, 427 So.2d 127 (Miss.1983), for an instance of this Court running down the hill on this proposition, and Box v. State, 437 So.2d 19 (Miss.1983) where a few weeks later we ran right back up the hill.


author: ROY NOBLE LEE, Justice,

text:
    The LEWIS GROCER CO. v. Tracy L. WILLIAMSON.
    No. 53878.
    Supreme Court of Mississippi.
    Aug. 31, 1983.

      Roberts & Easterling, M.M. Roberts, Aultman, Tyner, Weathers & Gunn, Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Milton A. Schlesinger, William F. Porter, Hattiesburg, for appellee.
    Before BROOM, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Tracy L. Williamson filed suit against The Lewis Grocer Company and Mrs. B.R. Noel in the Circuit Court of Lamar County, Honorable R.I. Prichard, III, presiding, for personal injuries sustained from a fall. At the conclusion of all the evidence, a nonsuit was taken as to Mrs. Noel, the case was submitted to the jury, and a verdict of $75,000 was returned in favor of Williamson. The Lewis Grocer Company has appealed here and assigns eight errors in the trial below.

I.

Five of the assigned errors may be consolidated into one question, viz, that the court erred in declining to grant a directed verdict in favor of the appellant, The Lewis Grocer Company, at the conclusion of all the evidence.

The evidence favorable to appellee indicates that, on October 16, 1978, he and a companion, Roy Bounds, drove from Purvis, Mississippi, to Hattiesburg, Mississippi, for the purpose of attending a movie. They arrived in Hattiesburg about 8:30 p.m., and drove to a Mr. Quik store at the corner of Hardy Street and 40th Avenue to purchase a six-pack of beer. The Mr. Quik store was glassed at the front with a four-foot walk running the length of the front, with a glass door opening to the inside. Several feet in front of the walk were a number of concrete parking bumpers, approximately six feet long, and about the width of an automobile, which stopped a vehicle from running upon the walk and possibly through the glass of the building. A four-foot square mat customarily was on the walk and against the glass door for use as customers went into the building.

When appellee drove through the parking lot up to the store, he stopped at one of the parking bumpers. The area was dimly lighted, there being only one light at the end of the building and one at the gas pumps in the parking area.

The mat was not at the front door, but had been moved. It was draped partly over the parking bumper on appellee’s side and part of it was in the area between the bumper and the walk and over the end of the parking bumper into the parking lot. The mat was similar in color to the asphalt covering of the parking area, and, as appel-lee got out of his car and started toward the door, which was across the area where the mat lay, he was unable to see the mat and fell and injured his left knee. Appellee got up and went into the store, but was unable to make his purchase because of the pain in his knee. He returned to the automobile and Bounds went into the store, concluded the purchase, and talked with the lady on duty about the accident. The two of them went to the mat, moved it from the bumper and parking area, and placed it back at the front door of the building. Subsequently, appellee was seen and treated by a physician who eventually operated on his knee. He sustained serious injuries which were permanent.

In Georgia-Pacific Corp. v. Blakeney, 353 So.2d 769 (Miss.1978), the Court again stated the principle relating to motions for directed verdicts:

The rule, in determining whether a motion for directed verdict should be granted, requires the trial judge to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied. (Here the motion for directed verdict actually was a request for peremptory instruction). Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); White v. Thomason, 310 So.2d 914 (Miss.1975); Williams v. Weeks, 268 So.2d 340 (Miss.1972); Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858 (1961); Sumrall Motor Co. v. Creel, 158 Miss. 262, 130 So. 151 (1930). [353 So.2d at 772],

When the plaintiff rested his case, the appellant called only one witness to the stand. He did not work for the appellant at the Mr. Quik location until sometime after the accident. Thus, the only proof in the record as to the condition of the premises and as to what happened was made by the appellee. The evidence and inferences show that the store operator’s station was only a few feet from the front door where the mat was usually located. In the exercise of reasonable care, that individual knew, or should have known, that the mat had been removed and placed in another location. Therefore, the jury could have believed from the evidence that appellant had actual or constructive notice as to the condition of the premises, including poor lighting and the location of the mat draped over the bumper stop, and that such premises constituted a hazard and danger to the invited public.

While the cases of Mississippi Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 156 So.2d 734 (1963), and Millers of Jackson, Meadowbrook Road, Inc. v. Newell, 341 So.2d 101 (Miss.1976), are not exactly similar to the case sub judice, since a condition was created within the store building by persons, who were probably customers, we think that actual notice or constructive notice was shown by the proof and inferences here.

We conclude that the lower court acted correctly in refusing to grant appellant a directed verdict.

II.

Appellant claims that Instructions P-5 and P-9 for the appellee constituted error. Instruction P-5 is the only instruction obtained by the appellee on the issue of liability. The instruction referred to the lighting conditions and the bumper guard, over which the mat was draped. In addition to the appellee’s testimony about the conditions at the place of injury and in the parking area, Mrs. Noel’s attorney developed on cross-examination of appellee that the area was dark where the mat was located over the bumper guard, and that he could not see it. Instruction P-9 was the only instruction on damages and followed the proof. There is no reversible error in granting those instructions.

Instruction D-l was a peremptory instruction and was properly refused. Instructions D-9, D-ll and D-13 were covered by other instructions granted to the appellant and would have been repetitious. Instruction D-12 was not supported by the evidence and was properly refused.

The lower court granted Instruction D-16 at the request of appellant, which told the jury that all of the instructions in the case should be considered together by the jury. We think that the jury was properly instructed and that there is no merit in this assignment.

III.

The appellant last contends that the verdict of $75,000 is grossly excessive and evinces bias, passion and, prejudice on the part of the jury, and that the jury ignored the testimony of appellee’s physician, Dr. Thomas J. Dewey, III.

Dr. Dewey first saw appellee on October 17, 1978, and diagnosed his condition as a badly-sprained left knee. He did not have X-rays made, but placed the knee in a splint and prescribed crutches for him. Appellee was admitted to Forrest General Hospital on November 8, 1978, and surgery was performed the next day. He was discharged November 15, 1978. His leg had been placed in a long cast and crutches were used for walking. Dr. Dewey saw appellee at intervals until April 20, 1979, when he was discharged. A brace was prescribed for ap-pellee when any strenuous physical activity was being performed. Dr. Dewey estimated that appellee had a 3% to 5% permanent disability of the left knee. However, he previously had written a letter wherein he indicated that the disability was 40%. The doctor explained that finding by saying when appellee was nine to ten years old his knee was injured in a bicycle fall, and on March 15, 1977, he had an operation for a football injury. Both cartilages and a major ligament were taken from his knee.

Appellee incurred medical expenses of $3,457.95 and sustained lost income in the amount of $7,271.60, aggregating special damages in the sum of $10,729.55. Appellee was working on an off-shore drilling rig at the time of the accident and was unable to pursue that occupation, at a substantial loss of future income. It was necessary for him to undergo special training to qualify for other employment. Appellee sustained com siderable pain as a result of the injury.

When a previous injury or condition is aggravated, liability for damages will follow because of the aggravation, if fault is established. We have carefully considered the record relating to injuries and damages of the appellee and cannot say that the verdict of the jury evinces bias, passion or prejudice; or that the damages awarded are against the overwhelming weight of the credible evidence. See Woods v. Nichols, 416 So.2d 659 (Miss.1982) and Walton v. Scott, 365 So.2d 630 (Miss.1978).

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Dr. Dewey was a reluctant witness and refused to answer the subpoena issued for him. He came to court when the trial judge required that, unless he appeared at a certain time, the court would send a bailiff to attach and bring him into court. He appeared to be a hostile witness as a result thereof.