ON FEBRUARY 6, 2000, FELICIA WELLS BEGAN HAVING CONTRACTIONS AND WENT TO WOMAN'S HOSPITAL. Dr. Charles Bush performed a Cesarean section delivery of Felicia's daughter, Amari. On February 12, Felicia experienced pain and bloating in her abdomen. She maintained that her doctors told her that she

was experiencing normal post-Cesarean pains. Sometime during the following week, Felicia bad an unusual bowel movement after which she lost complete control of her bowels. The following morning, Felicia was put on a clear liquid diet. After she tried to drink some broth and some Sprite, she felt a sharp, severe burning sensation in the "upper part" of her abdomen. Felicia underwent a CT Scan at River Oaks Hospital. Felicia related that her mother told her "that they found a little hole." Felicia would later maintain that no physician ever approached her and explained her condition to her. Soon after the discovery of the "little hole," Dr. Walter Jones performed surgery on Felicia. When Felicia woke up, she realized that she had a colostomy bag. Alter a nine to ten days' stay at the hospital, Felicia was transferred to St. Dominic's Hospital so that she could be treated by Dr. Hal Flowers, an infection control doctor. Felicia was discharged from St. Dominic's on February 23, 2000. During her time at the hospital, she did not see Amari. On May 16, 2000, Felicia went back to St. Dominic's and had her colostomy reversed. In early June of 2000, Felicia returned to her home with her husband and Amari. On January 29, 2002, the Wells filed a complaint against Dr. Tucker and various other entities. Dr. Tucker denied liability. The parties conducted discovery and designated their experts. On September 26, 2003. Dr. Tucker designated three potential expert witnesses: Dr. Paul Rice, Dr. John Morrison, and Dr. Edward Rigdon. Additionally, Dr. Tucker reserved the right to call Dr. Kim Nichols and Dr. Charles Bush. Dr. Nichols and Dr. Bush both practiced with Dr. Tucker. Finally, Dr. Tucker reserved the right to testily as to his own expert opinion. The facts revealed that all of the physicians designated by Dr. Tucker were insured by the same professional liability insurance company-Medical Assurance Company of Mississippi, (MACM), a non-profit corporation, which included a limited pool of physicians practicing in the state, who were self-insured for medical negligence suits. The Wells filed a motion to strike the patient's experts as cumulative and biased. The trial court rejected the Wells' motion. After a jury trial, the jury returned a verdict for "the defendants. The Wells appealed.

THE COURT OF APPEALS OF MISSISSIPPI REVERSED THE JUDGMENT OF THE TRIAL COURT FOR THE DEFENDANTS AND REMANDED THE CASE FOR A NEW TRIAL. The court held, inter alia, that the lower court abused its discretion. While the court noted that it did not take judicial notice that jurors are all aware in every case that physicians have professional liability insurance, the lower court certainly thought they did, and Dr. Tucker did not challenge that line of thought. The court was crystal clear that it was not adopting a per se rule. Instead, it emphasized that based on the record before it in this case, the lower court abused its discretion when it applied a "balancing test." Accordingly, the court reversed the judgment of the lower court and remanded the case for a new trial consistent with its opinion.

THE COURT NOTED THAT ON REMAND, ASSUMING THE CASE WOULD BE TRIED ON THE SAME ISSUES, DR. TUCKER WOULD BE ENTITLED TO A CAUTIONARY INSTRUCTION TO THE JURY. The court observed that, on remand, the jurors should be instructed that they should not consider any evidence of the presence of liability insurance in determining whether Dr. Tucker acted negligently or, otherwise, acted wrongfully. Instead, the jury should be instructed to consider only such evidence of liability insurance as it may effect the "bias or prejudice of a witness." The court made it absolutely clear that it was not plowing new ground. The court further observed that it had often required upon request that a lower court grant such an instruction when evidence was admissible for one legitimate purpose but not another. A strong dissenting opinion was filed. In addition to the judge writing the dissenting opinion, two other judges concurred with the dissenting judge's opinion. One of the most salient points in the dissenting judge's opinion was his observation that the plaintiff's attorney tailed to seek on the cross-examination of Dr. Yucker's expert medical witnesses any information about, inter alia, their experiences as expert witnesses, i.e., the number of times they testified, whether they solicited opportunities to testify as expert witnesses, and whether their testimony was always on behalf of physicians who were defendants in medical malpractice cases. The dissenting judge concluded that the sole purpose of the plaintiffs' attorneys' cross examination was to show the existence liability insurance. Wells v. Tucker, 2007 MSCA2006-CA-CA00385-090407 So.2d -MS

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.