Thomas v. Greenwood Leflore Hospital, et al,.
| Docket Number: | 2006-CA-00377-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Standard of care - Expert medical testimony - Affidavit Judge(s) Concurring: Lee and Myers, P.JJ., Chandler, Griffis, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): BARNES, J. Dissenting Author : IRVING, J., with separate written opinion. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 01-31-2006 Appealed from: LEFLORE COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: SUMMARY JUDGMENT FOR THE DEFENDANTS Case Number: 2002-0120-CICI |
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| Party Name: | Attorney Name: | |||
| Appellant: | ROOSEVELT THOMAS, AS NEXT FRIEND AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF ADA MAE THOMAS,
DECEASED |
DENNIS C. SWEET, III
WARREN LOUIS MARTIN, JR. |
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| Appellee: | GREENWOOD LEFLORE HOSPITAL AND WILLIAM B. HARPER, D.O. | GAYE NELL CURRIE L. CARL HAGWOOD JASON E. DARE |
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| Topic: | Wrongful death - Standard of care - Expert medical testimony - Affidavit |
| Summary of the Facts: | Roosevelt Thomas, as next friend and on behalf of the wrongful death beneficiaries of Ada Mae Thomas, filed a complaint alleging a wrongful death action against Dr. Harper, Nurse Nevels, Greenwood Leflore Hospital, and a number of John Does. In the midst of discovery, a stay was entered for six months due to the insolvency of Greenwood Leflore Hospital’s insurance provider. After the stay had been lifted, the defendants each filed separate motions for summary judgment. The court denied them as premature and ordered that the depositions of Dr. Harper and Nurse Nevels should be taken. Dr. Harper gave his deposition while Nurse Nevels’s deposition was rescheduled numerous times without being completed. The defendants again filed separate motions for summary judgment which the court granted. Thomas appeals. |
| Summary of Opinion Analysis: | Thomas argues that Dr. Harper breached his standard of care by failing to communicate Mrs. Thomas’s condition to the oncoming emergency room physician. Generally in a medical malpractice case, the plaintiff must present expert medical testimony as to the standard of care, whether that standard was breached, whether the breach caused the plaintiff’s injury, and the extent of the damages. There is an exception when the elements would be within the knowledge of a layperson. Thomas alleges in his brief that his expert was prepared to testify to the standard of care that should have been followed and that Dr. Harper breached the standard of care. However, this information was not presented to the trial court in the form of an affidavit or even in the expert designation. Thomas can not create a material issue of fact through arguments and assertions in briefs. The only evidence in the record as to this issue is that Dr. Harper met the standard of care when he turned Mrs. Thomas’s care over to Dr. Stokes. Therefore, this allegation of material fact is without merit. Thomas argues that Dr. Harper should have hospitalized Mrs. Thomas prior to going off-duty. He points to an unsworn affidavit that was attached to his response to the motion for summary judgment for support. To have the power to create a genuine issue of material fact, an affidavit must, first, be sworn; second, be made upon personal knowledge; and third, show that the party giving them is competent to testify. The affidavit that Thomas relies upon was never even signed by his expert, much less sworn to by him. An affidavit is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths. The affidavit appears to be a standard form affidavit, but without being sworn it cannot create an issue of material fact. According to Thomas’s expert designation, no duty to hospitalize Mrs. Thomas had arisen before all the test results had been returned. Hence, Dr. Harper had no duty to hospitalize Mrs. Thomas since he was off-duty at that time. Thomas argues that Nurse Nevels should have admonished Mrs. Thomas to return to the emergency room. There is no affidavit or pleading in the record that stated Nurse Nevels breached a standard of care. Neither is there anything in the record as to the standard of care that Nurse Nevels should have followed. Since the standard of care of what a nurse should do in that situation is beyond the knowledge of a layman, expert testimony would be needed. Therefore, this allegation of material fact is without merit. |
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