Maxwell v. Baptist Mem'l Hosp.-Desoto, Inc.
| Docket Number: | 2005-CA-01518-COA Linked Case(s): 2005-CA-01518-COA ; 2005-CA-01518-COA ; 2005-CT-01518-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-27-2008 Opinion Author: CHANDLER, J. Holding: REVERSED AND REMANDED; The motion for rehearing is granted and the original opinion is modified. |
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| Additional Case Information: |
Topic: Medical malpractice - Expert testimony - Timeliness of affidavits - M.R.C.P. 56(c) & (f) - M.R.C.P. 6(b) Judge(s) Concurring: MYERS, P.J., GRIFFIS, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): CARLTON, J. Dissenting Author : IRVING, J., with separate written opinion. Dissent Joined By : KING, C.J., LEE, P.J., AND BARNES, J. Procedural History: Summary Judgment; Motion for Rehearing Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 06-30-2005 Appealed from: DeSoto County Circuit Court Judge: Robert P. Chamberlin Disposition: SUMMARY JUDGMENT GRANTED TO HOSPITAL Case Number: CV2002-351RD |
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| Note: | MOTION FOR REHEARING FILED: 04/24/2007 - GRANTED; AFFIRMED - 05/27/2008. The motion for rehearing filed by Baptist Memorial Hospital-DeSoto, Inc. (Baptist), is granted. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor. | |
| Party Name: | Attorney Name: | |||
| Appellant: | DARON MAXWELL AND PEGGY MAXWELL, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF WALTER MAXWELL, DECEASED |
DALE DANKS,
PIETER JOHN TEEUWISSEN |
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| Appellee: | BAPTIST MEMORIAL HOSPITAL-DESOTO, INC. | JOHN H. DUNBAR, JOSIAH DENNIS COLEMAN |
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| Topic: | Medical malpractice - Expert testimony - Timeliness of affidavits - M.R.C.P. 56(c) & (f) - M.R.C.P. 6(b) |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. Daron Maxwell and Peggy Maxwell filed a medical negligence action against Baptist Memorial Hospital-DeSoto, Inc., alleging that Baptist’s negligence caused the death of their father, Walter Maxwell. Baptist moved for summary judgment. The Maxwells waited until the day of the summary judgment hearing to file a response with affidavits from expert witnesses. The circuit court struck the Maxwells’ response as untimely and granted Baptist’s motion for summary judgment. The Maxwells appeal. |
| Summary of Opinion Analysis: | The Maxwells had the burden to prove medical malpractice at trial; thus, they had the burden to produce evidence demonstrating the existence of a genuine issue of material fact. To accomplish this, the Maxwells were required to produce proof of each element of their medical malpractice claim. Moreover, expert testimony is required to establish these elements. 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. In the absence of expert testimony supporting each element, Baptist was entitled to summary judgment. The only evidence the Maxwells produced showing their anticipated expert testimony was contained in their interrogatory answers and in the affidavits submitted the day of the summary judgment hearing. M.R.C.P. 56(c) requires that affidavits be served by the opposing party prior to the day of the hearing. Under M.R.C.P. 6(d), affidavits in opposition to a motion must be served no later than one day before the hearing, unless the court allows them to be served at a later time. Rule 6(b) applies to a case where the non-movant for summary judgment untimely serves affidavits on the opposing party. The decision to allow the late filing rests within the court's discretion and must be for cause shown and is only permissible where the failure to meet the deadline was the result of excusable neglect. In this case, the attorney’s excuses amount to a “busy calendar.” The supreme court has held that counsel’s busy trial schedule does not show excusable neglect. Given the facts before the trial court, there was no abuse of discretion in the trial court’s striking of the untimely affidavits. In addition, the Maxwells’ violation of the trial court’s scheduling order provided an additional basis for the striking of the affidavits. The Maxwells argue that the trial court should have granted their request for a thirty-day continuance to supplement their affidavits. M.R.C.P. 56(f) provides that the trial court may order a continuance to permit a party to obtain affidavits. The Maxwells had almost two years from the time their complaint was filed to obtain expert medical testimony in some acceptable form. Their failure to do so was the result of inexcusable neglect. They ignored four separate discovery requests from Baptist and the trial court’s scheduling order and deadline to designate experts. And, they never requested additional time before the day of the hearing, which is an easily drafted and routinely granted request. Summary judgment was appropriate. |
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