McMichael v. Howell

919 So. 2d 18, 2005 WL 1384917
CourtMississippi Supreme Court
DecidedJune 2, 2005
Docket2004-CA-01525-SCT
StatusPublished
Cited by15 cases

This text of 919 So. 2d 18 (McMichael v. Howell) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMichael v. Howell, 919 So. 2d 18, 2005 WL 1384917 (Mich. 2005).

Opinion

919 So.2d 18 (2005)

Beth McMICHAEL
v.
Eli HOWELL, M.D.

No. 2004-CA-01525-SCT.

Supreme Court of Mississippi.

June 2, 2005.

*20 Orvis A. Shiyou, attorney for appellant.

Matthew D. Miller, Gulfport, Stephen Paul Wilson, Jackson, attorneys for appellee.

Before SMITH, C.J., EASLEY and GRAVES, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. Beth McMichael brought an action alleging that Dr. Eli Howell failed to inform her of the risks involved with facial skin laser surgery, failed to perform the services agreed upon and as a result departed from the standard of care. The Circuit Court of Lamar County granted summary judgment in favor of Dr. Howell because McMichael failed to present expert medical testimony in support of her claim. McMichael now appeals to this Court. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 28, 1997, Dr. Howell performed a laser resurfacing procedure on McMichael's forehead, peri-oral area, crows feet and lower eyelids. Around August 4, 1999, Dr. Howell discussed with McMichael the need to do a full facial laser and TCA peel of the neck to achieve the same color as the face. On September 23, 1999, Dr. Howell began the laser resurfacing of McMichael's face and the TCA peel of her neck. During the procedure, Dr. Howell noted that McMichael's skin was very thin in the previously treated areas and feared the skin would burn, resulting in scars. These previously treated areas were not re-treated during this procedure, and McMichael was discharged following this procedure. On September 29, 1999, McMichael returned to Dr. Howell for a follow-up visit, at which time he explained that the full face resurfacing was not performed during the procedure because her skin appeared too thin to withstand a second laser procedure and may have been burned.

¶ 3. McMichael filed a complaint in the Circuit Court of Lamar County alleging that Dr. Howell "failed to inform the Plaintiff of the care rendered to her by him, failed to perform the services which he agreed to perform, was negligent in the services and care rendered to the Plaintiff and as a result thereof departed from the standard of care." McMichael, in her answers to interrogatories identified Dr. William Gullung, III, and Dr. Benson as witnesses who would provide expert testimony to support her claim. However, she provided no reports of their opinions, no treatises, no curriculum vitae on the experts or other documents supporting their opinions. Dr. Howell filed a motion for summary judgment on the basis that McMichael had failed to designate any expert witnesses to testify as to the alleged breach of the standard of care as required by Mississippi law. The circuit court entered an order dismissing the motion for summary judgment without prejudice. The trial court granted McMichael thirty days to take the deposition of Dr. Howell and an additional forty-five days to provide expert witness disclosures.

¶ 4. McMichael did not depose Dr. Howell, nor did she provide any expert witness disclosures within the time period set forth in the trial court's order. Dr. Howell filed a motion to dismiss or for summary judgment on the basis that McMichael has failed to provide any expert witness to testify as to the alleged breach and the standard of care. In McMichael's response, she contended that expert testimony was not necessary to carry her burden of proof at trial. After oral arguments, the trial court entered its opinion granting *21 Dr. Howell's motion for summary judgment on all claims and dismissing the complaint with prejudice. McMichael filed a motion to reconsider asserting that expert witness testimony was not required for her claims and that the trial court failed to address all claims in its opinion. The trial court denied the motion to reconsider, and McMichael now appeals to this Court raising the same issues as was raised in her motion to reconsider:

1. Whether defendant's motion for summary judgment was properly granted as to plaintiff's claim that defendant failed to provide plaintiff with informed consent.
2. Whether defendant's motion for summary judgment was properly granted as to the entirety of plaintiff's complaint.

DISCUSSION

¶ 5. This Court employs a de novo standard of review of a trial court's grant or denial of summary judgment and examines all the evidentiary matters before it, admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Davis v. Hoss, 869 So.2d 397, 401 (Miss. 2004) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003)). The evidence is viewed in the light most favorable to the party opposing the motion. Davis, 869 So.2d at 401. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Id. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. (citing Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002)). The party opposing the motion must be diligent and may not rest upon mere allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing there are genuine issues for trial. Id. (citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997)).

¶ 6. Here, Dr. Howell's motion was a motion to dismiss or, in the alternative, for summary judgment. A motion to dismiss is converted into a motion for summary judgment if the trial court considers matters outside the pleadings when ruling on the motion. Richardson v. Sara Lee Corp., 847 So.2d 821, 823 (Miss.2003). Here, the circuit judge examined interrogatories outside of the pleadings, thereby converting the motion to dismiss into a motion for summary judgment.

1. Whether the Trial Court Erred in Granting Summary Judgment on Plaintiff's Claim That Defendant Failed to Provide Plaintiff with Informed Consent.

¶ 7. The trial court granted Dr. Howell's motion for summary judgment because McMichael did not provide expert medical testimony to support her claim. The trial court concluded that "while expert testimony is not necessary to establish what the physician advised the patient about the treatment or procedure, it is necessary in order to establish what the physician should have advised the patient regarding the procedure or treatment, and that the treatment proximately caused some worsened condition." McMichael admits that she does not have expert medical testimony. McMichael argues that her claim does not require expert medical testimony because she has not claimed mere inadequacy of being informed of the risks associated with the procedure, but has claimed that no such warning of the risks were given at all. McMichael alleges that Dr. Howell did not inform her of any risks associated with the full facial laser. However, Dr. Howell, in response, asserts that *22 he did advise her of all risks associated with the procedure.

¶ 8. When a plaintiff claims that a physician has breached the duty to obtain the patient's informed consent the familiar tort elements apply: duty, breach, causation, and damage. Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 492 (Miss. 1987). If there is a physician-patient relationship, the doctor automatically has the duty to inform and procure the consent of the patient as it relates to the proposed treatment. Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1363 (Miss.1990).

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Cite This Page — Counsel Stack

Bluebook (online)
919 So. 2d 18, 2005 WL 1384917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmichael-v-howell-miss-2005.