On January 31, 2019, Walter “Bubba” Morrison and Claire Berg successfully obtained a reversal of a Mississippi trial court’s ruling to exclude expert testimony and grant summary judgment against the plaintiffs in Hyde v. Martin, et al., 2017-CA-00822-SCT (Miss. Jan. 31, 2019).
In Hyde, the plaintiffs brought a medical malpractice case based on loss of a chance of a better stroke outcome. Plaintiffs asserted that the treating physician’s and hospital’s failure to properly test for and timely diagnose the plaintiff-patient’s stroke resulted in his not receiving an injection of Tissue Plasminogen Activator, or “tPA,” which the plaintiffs claim would have led to a better stroke outcome. tPA is a clot-buster drug administered to patients suffering from ischemic strokes to break up the clot that is causing a disruption in the flow of blood to the brain. tPA is most effective when administered within the first three hours after the onset of stroke symptoms.
In Mississippi, to recover under a loss of a chance theory, “the plaintiff must prove that, but for the physician’s negligence, he or she had a reasonable probability of substantial improvement.” Memorial Hosp. at Gulfport v. White, 170 So. 3d 506, 508 (Miss. 2015) (citing Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985)). In other words, the plaintiff must offer proof of a greater than 50% chance of a better result than was in fact obtained. Ladner v. Campbell, 515 So. 2d 882, 889 (Miss. 1987).
The parties’ medical experts presented conflicting testimony on whether the medical literature concerning tPA therapy revealed that patients who receive tPA therapy have a greater than 50% chance of a better stroke outcome. The trial court erroneously interpreted the medical literature submitted by the parties and incorrectly concluded the literature failed to demonstrate that tPA therapy results in a greater than 50% chance of a better result than was in fact obtained. On appeal, the Mississippi Supreme Court held that, consistent with Mississippi’s loss of a chance standard, the plaintiffs presented expert medical testimony supported by medical literature that the majority of stroke patients who timely receive tPA therapy experience substantial improvement. Mississippi law does not require a plaintiff to prove a greater than 50% chance of a complete recovery. Rather, Mississippi law permits recovery based on a reasonable probability of a substantial improvement.
The trial court’s ruling effectively released physicians from tPA therapy related liability regardless of how blatant the medical negligence. Indeed, in Norman v. Anderson, 2017-CA-00153-SCT (Miss. Jan. 24, 2019), a companion case that was dismissed on summary judgment by the Mississippi trial court on almost identical issues, the hospital admitted it breached the standard of care by failing to administer tPA to the plaintiff. As such, the Mississippi Supreme Court’s decision to address whether a plaintiff can overcome the 50% loss of a chance threshold in the case of tPA and its subsequent conclusion to allow plaintiffs’ claim to proceed at trial is a victory for all stroke patients in Mississippi.
 The Mississippi Supreme Court did not reverse the trial court’s ruling to exclude expert testimony and grant summary judgment in Norman because the plaintiff’s expert conceded that the plaintiff was a risky candidate for tPA therapy and that no studies showed that the benefit of tPA therapy exceeded 50%.
 Defendants have moved for rehearing on which the Court has yet to rule.