Deiorio v. Pensacola Health Trust, Inc.


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Docket Number: 2007-CA-00537-COA
Linked Case(s): 2007-CA-00537-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-16-2008
Opinion Author: Lee, P.J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Designation of experts - URCCC 4.04(A)
Judge(s) Concurring: Myers, P.J., Irving, Chandler, Griffis, Ishee, Roberts, and Carlton, JJ.
Non Participating Judge(s): Barnes, J.
Concurs in Result Only: King, C.J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 02-28-2007
Appealed from: Harrison County Circuit Court
Judge: Lisa P. Dodson
Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF PENSACOLA HEALTH TRUST
Case Number: A2401-01-00323

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: ESTATE OF CHERRY M. DEIORIO, BY AND THROUGH CHAD DEIORIO, ADMINISTRATOR OF THE ESTATE OF CHERRY M. DEIORIO, FOR THE USE AND BENEFIT OF THE ESTATE OF CHERRY M. DEIORIO, DECEASED, AND FOR THE USE AND BENEFIT OF THE WRONGFUL DEATH BENEFICIARIES OF CHERRY M. DEIORIO




DOUGLAS BRYANT CHAFFIN, ANNETTE ELISE BULGER MATHIS, SUSAN NICHOLS ESTES, KENNETH L. COOPER



 

Appellee: PENSACOLA HEALTH TRUST, INC., AND DELTA HEALTH GROUP, INC. LYNDA CLOWER CARTER, NICOLE COLLINS HUFFMAN, DANIEL E. DIAS  

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Topic: Medical malpractice - Designation of experts - URCCC 4.04(A)

Summary of the Facts: Chad Deiorio, as next friend of his mother, Cherry Deiorio, filed a complaint against the owners, operators, and managers of the Boyington Nursing Center, including Pensacola Health Trust and Delta Health Group, alleging negligence, medical malpractice, malice, gross negligence, and fraud in the treatment of his mother. Boyington filed a motion for summary judgment, asserting that Deiorio had failed to timely designate his experts sixty days before trial pursuant to URCCC 4.04(A). The trial court gave the parties additional time to provide authority relating to the applicability of Rule 4.04(A). Deiorio failed to do so. The court granted Boyington’s motion for summary judgment, and Deiorio appeals.

Summary of Opinion Analysis: The trial court noted that Deiorio had several reasons for the late designation of his experts, including that it was Christmas and counsel had other concerns at the time, but none rose to the level of “special circumstances” as required by URCCC 4.04(A). Because Deiorio has failed to show any special circumstances that would allow for the tardy designation of the experts, the court did not abuse its discretion in granting summary judgment. Even if the trial court should have allowed Deiorio to designate his experts, the expert affidavit was insufficient as a matter of law to defeat summary judgment. The expert fails to state any of his opinions to a reasonable medical probability or certainty. The affidavit does not articulate the applicable standards of care and how these standards of care were breached. The affidavit simply consists of several conclusory statements.


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