Posey v. Burrow
| Docket Number: | 2011-CA-00423-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-24-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Expert testimony - Standard of care - Sworn affidavits Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Barnes, J., Concurs in Part and in the Result Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-14-2011 Appealed from: Rankin County Circuit Court Judge: William E. Chapman, III Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE Case Number: 2007-319-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Lisa Posey |
BRANDON ISAAC DORSEY |
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| Appellee: | Nancy W. Burrow, M.D. | STEPHEN P. KRUGER JAN F. GADOW | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Medical malpractice - Expert testimony - Standard of care - Sworn affidavits |
| Summary of the Facts: | Lisa Posey filed a complaint against Dr. Nancy Burrow and Health Management Associates d/b/a Rankin Medical Center as employer of Dr. Burrow. Posey later filed an amended complaint alleging medical negligence and malpractice on the part of Dr. Burrow for her failure to diagnose a cavernous malformation, resulting in injury to Posey. Dr. Burrow filed a motion for summary judgment which the court granted. Posey appeals. |
| Summary of Opinion Analysis: | Posey argues that she provided proof of each element of her medical negligence and malpractice claim and established a prima facie case of medical negligence and malpractice sufficient to withstand a motion for summary judgment. To support her claim that there was a genuine issue of material fact, Posey relies on two letters from Dr. Lancon stating that Posey’s 2004 MRI showed the cavernous malformations and that the standard of care “would be that a reasonably trained, competent radiologist who interprets MRI brain studies . . . should be capable of identifying a probable cavernous brain malformation.” Dr. Lancon found that the standard of treatment in the medical community would have been to discuss the pros and cons of long-term anticonvulsant medication versus a surgical option. Neither of Dr. Lancon’s letters were sworn to. In a claim for medical malpractice, expert testimony must be used. Not 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. Here, Posey failed to produce an affidavit or any other evidence except Dr. Lancon’s letters, which are not sworn affidavits, and a portion of Dr. Burrow’s deposition. Dr. Burrow provided a sworn-to affidavit stating that she did in fact comply with the standard of care and was not a contributing cause of Posey’s injuries. The evidence Posey submitted alone is insufficient to establish a prima facie case of medical malpractice. |
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