Dotson v. Jackson
| Docket Number: | 2006-CA-01275-COA Linked Case(s): 2006-CA-01275-SCT ; 2006-CA-01275-COA ; 2006-CT-01275-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-28-2008 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Expert testimony - Seasonable supplementation - M.R.C.P. 26(f) - Timeliness of affidavit - M.R.C.P. 56(c) - Continuance - M.R.C.P. 56(f) - Layman’s exception Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): KING, C.J., AND IRVING, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 06-22-2006 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Richard Smith Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF DEFENDANT Case Number: CI2001-227 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | BARBARA DOTSON |
SUZANNE GRIGGINS KEYS,
ISAAC K. BYRD,
GARY SILBERMAN |
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| Appellee: | PAUL JACKSON, M.D. | CLINTON M. GUENTHER |
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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 - Seasonable supplementation - M.R.C.P. 26(f) - Timeliness of affidavit - M.R.C.P. 56(c) - Continuance - M.R.C.P. 56(f) - Layman’s exception |
| Summary of the Facts: | Barbara Dotson filed a medical negligence action against Paul Jackson, M.D. Dr. Jackson filed a motion for summary judgment arguing that Dotson’s designation of an expert witness was untimely and the statement provided by the expert witness did not set forth a prima facie case of medical negligence. The court granted Dr. Jackson’s motion for summary judgment, and Dotson appeals. |
| Summary of Opinion Analysis: | Dotson argues that summary judgment was improper because she produced evidence of the identity of an expert and evidence of the expert’s opinion and that she has met her burden of establishing a prima facie case of medical negligence via the entire pleadings. Discovery responses are to be supplemented seasonably pursuant to M.R.C.P. 26(f). Seasonableness must be determined on a case-by-case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit. In this case, an agreed scheduling order was entered on November 1, 2001, requiring Dotson to designate her expert witnesses no later than February 1, 2002. In Dotson’s response to Dr. Jackson’s interrogatories, which were filed on November 20, 2001, Dotson stated that the discovery request regarding the identity of her expert witness would be seasonably supplemented when her expert witness had been determined. Her designation of experts was not filed until March 26, 2002. Dr. Jackson, claiming to have never seen that designation, filed a motion for summary judgment on September 4, 2002. Dotson’s response to the motion for summary judgment contained her designation of experts, but it still did not provide any medical testimony from those experts. The case was then delayed because of Dr. Jackson’s bankruptcy. Dr. Jackson’s motion for summary judgment was re-noticed before the new circuit judge to be heard on June 5, 2006. At the time of the hearing, Dotson had yet to file an expert witness affidavit to support her claim. She failed to file such affidavit until nine days following the hearing. Clearly, the affidavit was untimely under M.R.C.P. 56(c). Dotson did not request a continuance under M.R.C.P. 56(f) until the day of the hearing – nearly five years after the complaint was filed. The circuit court never ruled on Dotson’s request for a continuance. However, because the circuit court did not strike the untimely filed affidavit, the circuit court, in effect, allowed the additional time requested by Dotson. In a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care. Dotson’s expert opined that Dr. Jackson breached the standard of care by cutting Dotson’s bladder during the hysterectomy, i.e., the mere existence of cut itself amounted to negligence. However, this opinion is contrary to the expert’s opinion that a surgeon should anticipate possible bladder injury. He explicitly acknowledges that cutting the bladder is a possible and expected complication of this type of surgery. The expert also states that a proper exam of the abdominal and pelvic areas was not performed and that such exam would have shown the structures within the pelvis to be non moveable. However, he fails to explain how the exam done by Dr. Jackson was improper; nor does he state the requirements of a proper exam. More importantly, the expert does not make the causal connection of Dr. Jackson’s failure to perform a proper abdominal exam with Dotson’s injury. Thus, the expert affidavit was both untimely filed and insufficient. Dotson also argues that even if she did not establish a prima facie case of medical negligence through her medical expert, summary judgment was nonetheless improper because the layman’s exception applies. This argument was raised by Dotson for the first time on appeal and is therefore barred from review. Even so, it is difficult to see how the layman’s exception could apply when Dotson’s own medical expert testified via affidavit that cutting the bladder is a complication to be anticipated during a hysterectomy. |
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