Hans v. Mem'l Hosp. at Gulfport
| Docket Number: | 2008-CA-01617-COA Linked Case(s): 2008-CA-01617-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-16-2010 Opinion Author: Barnes, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Medical malpractice - Pre-suit notice - Section 15-1-36(15) - Amended complaint - M.R.C.P. 3(a) - M.R.C.P. 15 - Negligence - Expert opinion Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Roberts and Maxwell, JJ. Non Participating Judge(s): Ishee, J.; Carlton, J. Concurs in Result Only: Irving, J. Procedural History: Dismissal; Summary Judgment Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 08-27-2008 Appealed from: Harrison County Circuit Court Judge: JERRY O. TERRY, SR. Disposition: MOTIONS TO DISMISS GRANTED FOR DRS. SPROLES AND LOVETTE; MOTION FOR SUMMARY JUDGMENT GRANTED FOR MEMORIAL HOSPITAL AT GULFPORT Case Number: A2401-07-100 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DIANN HANS AND DAVID HANS |
ROBERT O. HOMES, JR. |
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| Appellee: | MEMORIAL HOSPITAL AT GULFPORT, DR. JAMES LOVETTE, AND DR. ARTHUR SPROLES | PATRICIA K. SIMPSON, FREDRICK B. FEENEY II, GEORGE F. BLOSS III, MARY MARGARET KUHLMANN, WILLIAM E. WHITFIELD III, KAREN KORFF SAWYER | ||
| Appellee #2: | ||||
| Appellee #3: | ||||
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| Topic: | Medical malpractice - Pre-suit notice - Section 15-1-36(15) - Amended complaint - M.R.C.P. 3(a) - M.R.C.P. 15 - Negligence - Expert opinion |
| Summary of the Facts: | Diann and David Hans filed a complaint, alleging that the care and treatment provided by Memorial Hospital at Gulfport, Dr. Arthur Sproles and Dr. James Lovette, were both untimely and substandard. With respect to Drs. Sproles and Lovette, the circuit court granted judgments of dismissal without prejudice, based upon the Hanses’ failure to provide pre-suit notice as required under section 15-1-36(15). The Hanses filed an amended complaint joining the two doctors back into the suit. In response, Drs. Lovette and Sproles again filed motions to dismiss. The Hanses filed a second cause of action, alleging the same allegation of medical negligence and asserting the same injuries and damages as the amended complaint. The circuit court once again dismissed Drs. Lovette and Sproles from the original suit. Memorial filed a motion for summary judgment which the court granted. The Hanses appeal. |
| Summary of Opinion Analysis: | Issue 1: Pre-suit notice A plaintiff’s failure to send notice of intent to sue to defendants is an inexcusable deviation from the Legislature’s requirements for process and notice under section 15-1-36(15). The Hanses argue that Drs. Sproles and Lovette were properly dismissed from the original action but were provided with the necessary notices prior to the filing of the first amended complaint, thus remedying any error. The Hanses failed to provide Drs. Sproles and Lovette with the necessary pre-suit notice before filing their March 2007 complaint. Then, on May 2, 2007, shortly before Drs. Sproles and Lovette were dismissed from the original action, the Hanses provided the requisite notice. The Hanses subsequently filed a motion to amend their complaint, which was granted by the circuit court on March 26, 2008. Drs. Sproles and Lovette argue that the interplay between the statutory language “may be begun” in section 15-1-36(15) and the language of M.R.C.P. 3(a) suggests that an “action” is commenced upon the filing of an original complaint. Thus, they submit that the Hanses’ failure to provide notice may be cured only by filing a separate, second action. However, the doctors fail to note that section 15-1-36(15) states that “[n]o action based upon the health care provider’s professional negligence may be begun . . .” without the requisite notice. There is nothing in the plain wording of the statute which indicates that the action may not be “begun” by an amended complaint under M.R.C.P. 15, rather than an initial complaint under Rule 3. Accordingly, the circuit court’s second dismissal of the action against Drs. Sproles and Lovette was in error. Issue 2: Negligence In order to establish a prima facie case of medical negligence, a plaintiff must prove that the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; the defendant failed to conform to that required standard; the defendant’s breach of duty was a proximate cause of the plaintiff's injury, and the plaintiff was injured as a result. Generally, expert testimony is required to “identify and articulate the requisite standard that was not complied with . . . [and] establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries. In this case, the court held that the Hanses failed to sustain their burden of demonstrating that Memorial breached a recognized standard of care and that such breach was the proximate cause of Diann’s injuries. Memorial argues that the plaintiffs’ expert, a gastroenterologist, was not qualified to testify in the area of ER medicine. The circuit court judge never addressed this issue. Whether any given doctor may testify as to a particular matter depends upon his training and knowledge, and while an expert’s testimony will be limited to his area of expertise, there is nothing in our law that would prohibit one from being qualified as an expert in more than one field. As long as an expert witness possesses, in several areas of practice, that peculiar knowledge unlikely to be expressed by a layperson, the expert may be qualified to speak to those areas of practice. Here, the threshold question of competency is whether the gastroenterologist possesses the requisite knowledge and experience to offer testimony concerning ER medicine. The circuit court did not find that the expert was unqualified to render his opinion but held that the opinion failed to establish a prima facie case of medical negligence. A review of the expert’s letters supports the circuit court’s holding. His affidavit incorporated, by reference, two letters which stated his medical opinion regarding Diann’s medical care. There is nothing in the expert’s opinion which articulates what would be considered “an adequate transfer of care,” what the “minimum standards” for the patient’s care would be, or how the ER physicians were to “ensure” that care. Further, there is nothing in the letter that states with any specificity what the ER should have done differently. |
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