Mary Carnathan v. William Bryan Rogers

218 So. 3d 274, 2017 WL 784587, 2017 Miss. App. LEXIS 106
CourtCourt of Appeals of Mississippi
DecidedFebruary 28, 2017
DocketNO. 2015-CA-01644-COA
StatusPublished

This text of 218 So. 3d 274 (Mary Carnathan v. William Bryan Rogers) 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
Mary Carnathan v. William Bryan Rogers, 218 So. 3d 274, 2017 WL 784587, 2017 Miss. App. LEXIS 106 (Mich. Ct. App. 2017).

Opinion

GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. This appeal arises from a medical-malpractice suit filed on behalf of the deceased, Joe Carnathan. The circuit court granted summary judgment in favor of the defendants due to Mary Carnathan’s failure to properly designate an expert witness and supply an expert affidavit. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On December 26, 2013, Carnathan filed a wrongful-death medical-malpractice claim against Dr. William Bryan Rogers, Dr. Joseph Bailey III, Dr. Woodrow Wilson Brand III, Surgery Clinic of Amory, Gilmore Memorial Hospital d/b/a Gilmore Memorial Regional Medical Center, John Does 1-5, and ABC Corporations 6-10. 1 On April 2, 2014, Carnathan attempted to serve Gilmore Memorial Hospital with process, but was informed that the proper legal entity was Amory HMA LLC.

¶ 3. Carnathan did not serve Amory HMA with process, but instead filed a motion to amend her complaint to add Amory HMA as a proper party on May 27, 2014. In this motion, Carnathan also requested to extend the discovery deadline. None of the joined defendants objected to Carnathan’s motion. Carnathan, however, failed to notice the motion for a hearing and did not pursue the motion further.

¶4. On November 19, 2014, Dr. Bailey filed a motion for summary judgment. He asserted that Carnathan had failed to designate an expert witness to establish her prima facie case of medical negligence. Carnathan responded to the motion on December 22, 2014, but did not designate an expert witness. On February 18, 2015, Dr. Rogers filed a motion for summary judgment and made the same argument as Dr. Bailey.

¶ 5. On March 23, 2015, Dr. Brand filed a motion for summary judgment that mirrored the motions of Drs. Bailey and Rogers. On April 17, 2015, the circuit court ordered Carnathan to respond to Dr. Rogers’s and Dr. Brand’s motions for summary judgment. Carnathan complied with the circuit court’s order, but again failed to designate an expert witness.

¶ 6. The circuit court held a hearing on the motions for summary judgment on June 19, 2015. An order that granted the motions for summary judgment was entered on October 2, 2015. Carnathan now appeals.

*276 STANDARD OF REVIEW

' ¶ 7. The grant of a motion for summary-judgment is reviewed de novo. Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). Under this standard, we view the evidence “in the light most favorable to the party, against whom the motion has been made.” Id. The Karpinsky court further held:

Summary judgment is appropriate and shall be rendered if 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. Importantly,' the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will bé'entered against him.
This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks and citations omitted).

ANALYSIS

¶ 8. Carnathan argues that the circuit court erred when it granted summary judgment to the defendants in contradiction of Mississippi Rules of Civil Procedure 15(a) and 19 and Rule 4.04 of the Uniform Rules of Circuit and County Court. Carnathan asserts that the circuit court should have allowed her to amend her complaint and join Amory HMA as a proper party before ruling on the defendants’ motions for summary judgment. Further, Carnathan contends that according to Uniform Rule of Circuit and County Court 4.04, she had until'sixty days prior to trial to designate an expert witness, and the grant of summary judgment was premature.

¶ 9. This Court has held that in a medical-malpractice claim, “expert testimony must be used.” Posey v. Burrow, 93 So.3d 905, 907 (¶ 8) (Miss. Ct. App. 2012) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss. 1992)). Further, “[n]ot only must this expert identify and articulate the requisite standard that was- not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted).

¶ 10. This Court has further held that “[u]nless the matter is within the common knowledge of laypersons, to establish a prima facie case of medical negligence agáinst a physician, a plaintiff must present competent expert testimony as to the' applicable standard of care, breach, and proximate causation.” Langley ex rel. *277 Langley v. Miles, 956 So.2d 970, 976 (¶ 17) (Miss. Ct. App. 2006) (citing Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss. 1987) (overruled on other grounds)).

¶ 11. At all stages of pretrial, Car-nathan failed to present any witness designation or affidavit in support of her prima facie case. Without an expert witness, Car-nathan could not present evidence of the standard of care for any of the three physicians and therefore cannot “survive summary judgment.” Johnson v. Pace, 122 So.3d 66, 68 (¶ 8) (Miss. 2013) (citing Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss. 2007)).

¶ 12. Further, Carnathan’s failure to designate an expert witness, prior to the hearing for summary judgment, overshadows her contention that the trial court’s mere consideration of summary judgment was premature. 2 The supreme court has held that “[a] party against whom a claim is asserted may, at any time, move ... for a summary judgment in his favor .Id. (citing M.R.C.P. 56(b)). Carnathan’s reliance on Uniform Rule of Circuit and County Court 4.04(A) to support the argument that she was not yet required to designate an expert witness because she had until sixty days prior to the trial is a miseharac-terization of the rule.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Phillips by and Through Phillips v. Hull
516 So. 2d 488 (Mississippi Supreme Court, 1987)
Barner v. Gorman
605 So. 2d 805 (Mississippi Supreme Court, 1992)
Smith Ex Rel. Smith v. GILMORE MEM. HOSP.
952 So. 2d 177 (Mississippi Supreme Court, 2007)
Cates v. Woods
169 So. 3d 902 (Court of Appeals of Mississippi, 2014)
Posey v. Burrow
93 So. 3d 905 (Court of Appeals of Mississippi, 2012)
Karpinsky v. American National Insurance Co.
109 So. 3d 84 (Mississippi Supreme Court, 2013)
Johnson v. Pace
122 So. 3d 66 (Mississippi Supreme Court, 2013)
Langley ex rel. Langley v. Miles
956 So. 2d 970 (Court of Appeals of Mississippi, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
218 So. 3d 274, 2017 WL 784587, 2017 Miss. App. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mary-carnathan-v-william-bryan-rogers-missctapp-2017.