Holt v. Summers

942 So. 2d 284, 2006 WL 3290805
CourtCourt of Appeals of Mississippi
DecidedNovember 14, 2006
Docket2005-CA-01181-COA
StatusPublished
Cited by1 cases

This text of 942 So. 2d 284 (Holt v. Summers) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holt v. Summers, 942 So. 2d 284, 2006 WL 3290805 (Mich. Ct. App. 2006).

Opinion

942 So.2d 284 (2006)

Clyde Douglas HOLT and Mable Holt, Appellants
v.
Jeffery T. SUMMERS, M.D., Appellee.

No. 2005-CA-01181-COA.

Court of Appeals of Mississippi.

November 14, 2006.

*285 Richard Manning Lingle, Jackson, Ronald Henry Pierce, attorneys for appellants.

John Lewis Hinkle, Al Nuzzo, Ridgeland, attorneys for appellee.

Before MYERS, P.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. Clyde and Mable Holt appeal the judgment of the Circuit Court of the First Judicial District of Hinds County granting partial summary judgment to Jeffery T. Summers, M.D. and from the circuit court's order dismissing the remaining cause of action for failure to prosecute.

¶ 2. The Holts assert on appeal that the circuit court erred by granting Dr. Summers's motion for partial summary judgment because: (1) expert testimony was not required in this case pursuant to the "layman's" exception; and, (2) the circuit court should have allowed the Holts' negligence claim to proceed to trial based on the doctrine of res ipsa loquitur. The Holts make no argument on appeal nor do they cite any authority challenging the circuit court's characterization of the Holts' case as "stale" and dismissing the remaining claim for failure to prosecute; therefore, we will not address this issue nor will we disturb the circuit court's "Order of Dismissal with Prejudice."[1] Finding no *286 error in the circuit court's grant of partial summary judgment to Dr. Summers, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On or about May 18, 1994, Dr. Jefferey T. Summers admitted Clyde Douglas Holt to Surgicare of Jackson at which time Dr. Summers performed an intercostal nerve block upon Mr. Holt. During the course of this procedure, one of Mr. Holt's lungs was punctured. As a result, Mr. Holt required emergency treatment and was subsequently admitted to St. Dominic-Jackson Memorial Hospital.

¶ 4. The Holts[2] filed a complaint on March 8, 1996, claiming that Dr. Summers failed to adequately inform Mr. Holt of the potential risks involved in the intercostal nerve block. Specifically, the complaint alleged, inter alia, that Dr. Summers negligently failed to "advise Mr. Holt of the reasonable risks of the procedure such as lung puncture" and that Mr. Holt would not have consented to the procedure had he been adequately informed. Consequently, the Holts claimed that Dr. Summers committed battery by performing the procedure without informed consent. Additionally, the Holts' complaint alleged that Dr. Summers was liable for Mr. Holt's injuries on the basis of negligence per se.

¶ 5. While the Holts' complaint did not explicitly allege that Dr. Summers negligently performed the intercostal nerve block procedure, language contained in the complaint coupled with references to negligence made in the Holts' responses to Dr. Summers's interrogatories made it clear that the Holts intended to pursue claims based on negligence. In particular, the Holts' interrogatory responses alleged that Dr. Summers negligently performed the intercostal nerve block in as much as Mr. Holt's preexisting medical condition "dictated that the procedure should not have been performed." The Holts cited Dr. Summers's alleged failure to consider Mr. Holt's preexisting medical condition as well as Dr. Summers's alleged failure to "x-ray, examine or otherwise determine if [Mr Holt] was physically capable of having the procedure in question." These assertions made by the Holts were in response to interrogatories designed to elicit (1) whether the Holts intended to pursue a negligence claim against Dr. Summers, and, if so, (2) the basis for same.[3]

¶ 6. The circuit court entered an "Agreed Order Modifying Scheduling Order" *287 on July 30, 1998, which required the Holts to designate their expert witnesses by August 15, 1998. The Holts failed to designate any experts by the scheduling order deadline, and the record does not reflect any effort on the part of the Holts to do so. Citing the Holts' failure to designate expert witnesses, Dr. Summers moved for partial summary judgment on December 9, 1998, asserting that without expert testimony, there was no genuine issue of material fact as to all allegations of medical negligence. The Holts timely responded to Dr. Summers's partial summary judgment motion, arguing that expert testimony was not required under the facts of this case. More precisely, the Holts insisted that the injuries suffered by Mr. Holt were "such that a reasonable lay person [could] find that the Defendant's actions were negligent based upon common lay knowledge."

¶ 7. The circuit court acknowledged that there was a "layman's" exception to the general requirement that expert testimony is required to prove medical negligence; however, the court found the exception inapplicable to the circumstances at bar. Accordingly, the court held that, absent expert testimony in this case, there was no proof of the requisite standard of care applicable to Dr. Summers's conduct during the intercostal nerve block procedure, no proof that Dr. Summers failed to conform to the requisite standard of care, and no proof that Mr. Holt's injuries were caused by Dr. Summers's failure to conform to the requisite standard of care. The court granted Dr. Summers's partial summary judgment motion on April 14, 1999, leaving only the Holts' claim based on lack of informed consent. The remainder of the Holts' claim was dismissed with prejudice on April 21, 2005, for failure to prosecute. Aggrieved, the Holts appeal the circuit court's grant of partial summary judgment asserting that the trial court improperly refused to allow the issue of Dr. Summers's negligence to go to a jury. Finding no merit in the Holts' assignment of error, we affirm.

STANDARD OF REVIEW

¶ 8. This Court employs a de novo standard when reviewing summary judgments. Stallworth v. Sanford, 921 So.2d 340, 341 (¶ 5) (Miss.2006) (citing Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004)). Summary judgment will be granted only where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c).

¶ 9. In a medical negligence action, "the plaintiff bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury." Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995) (citing Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990)). To rebut the defendant's claim in the context of a motion for summary judgment, the plaintiff must produce significant and probative evidence demonstrating that the defendant breached the applicable standard of care and that the breach was the proximate cause of his injuries. Id. Unless the alleged negligent conduct is so obvious that a layman could easily determine fault, "expert testimony is generally required to survive summary judgment and establish the negligence of a physician." Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999) (citing Coleman v. Rice, 706 So.2d 696, 698-99 (Miss.1997); Travis v. Stewart, *288 680 So.2d 214, 218 (Miss.1996); Palmer, 656 So.2d at 795).

DISCUSSION

¶ 10.

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