Holt v. Summers
| Docket Number: | 2005-CA-01181-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-14-2006 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Expert testimony - Layman’s exception - Res ispa loquitur Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): GRIFFIS, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 04-21-2005 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: PLAINTIFFS’ CLAIMS DISMISSED WITH PREJUDICE. Case Number: 96-225 |
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| Party Name: | Attorney Name: | |||
| Appellant: | CLYDE DOUGLAS HOLT AND MABLE HOLT |
RICHARD MANNING LINGLE, RONALD HENRY PIERCE |
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| Appellee: | JEFFERY T. SUMMERS, M.D. | JOHN LEWIS HINKLE, AL NUZZO |
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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 - Layman’s exception - Res ispa loquitur |
| Summary of the Facts: | Clyde and Mable Holt filed a complaint claiming that Dr. Jefferey Summers failed to adequately inform Mr. Holt of the potential risks involved in the intercostal nerve block. During the course of this procedure, one of Mr. Holt’s lungs was punctured. 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. 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. 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. Dr. Summers moved for partial summary judgment on that basis. The court granted Dr. Summers’s partial summary judgment motion, leaving only the Holts’ claim based on lack of informed consent. The remainder of the Holts’ claim was dismissed with prejudice for failure to prosecute. The Holts appeal. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony The Holts argue that an expert is not required in this case to allow the issue of medical negligence to be presented to a jury, because the facts of this case are such that the layman’s exception to the general rule requiring expert testimony to establish medical negligence is applicable. Only in instances where the issues are purely factual in nature or thought to be in the common knowledge of laymen will the layman’s exception apply. There is no indication in the record of how a lay person is to make the causal connection between Mr. Holt’s preexisting medical condition and his injuries; whether a reasonable physician in Dr. Summers’s position would have performed the procedure in light of Mr. Holt’s preexisting medical condition; whether a reasonable physician would have taken x-rays or taken other steps to determine Mr. Holt’s physical suitability for the procedure; and what role any of the preceding played in contributing to Mr. Holt’s injuries. Without an expert to explain how Dr. Summers breached the applicable standard of care in treating Mr. Holt and the causal connection between that breach and Mr. Holt’s injuries, these issues cannot be decided by a jury of laymen. Therefore, the layman’s exception is not applicable to this case. Issue 2: Res ipsa loquitur The Holts argue that sufficient evidence exists to demonstrate Dr. Summers’s negligence through the doctrine of res ipsa loquitur. The elements of res ipsa loquitur require that the instrumentality causing the damage must be under the exclusive control of the defendant, the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care, and the occurrence must not be due to any voluntary act on the part of the plaintiff. The real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such operations, which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. Here, there is no evidence in the record suggesting that Mr. Holt’s injuries were not within the surgical field or which otherwise demonstrates the extraordinary or unusual nature of Mr. Holt’s injuries. Furthermore, even the Holts’ claim based on informed consent, which characterizes the risk of lung puncture as “known” and “reasonable,” precludes the application of res ipsa loquitur. |
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