Perez v. Univ. of Miss. Med. Ctr., et al.
| Docket Number: | 2009-CA-01892-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-06-2011 Opinion Author: Carlton, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Medical malpractice - Causation - Expert affidavit Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 08-21-2009 Appealed from: Hinds County Circuit Court Judge: William F. Coleman Disposition: SUMMARY JUDGMENT GRANTED Case Number: 251-04-468CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Rafael Perez a/k/a Ray Perez and Kathy Perez |
WAYNE E. FERRELL JR. |
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| Appellee: | The University of Mississippi Medical Center and Cardinal Health 109, Inc. | WALTER T. JOHNSON ROBERT H. PEDERSEN JOSEPH GEORGE BALADI LUKE DOVE | ||
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 - Causation - Expert affidavit |
| Summary of the Facts: | Rafael Perez sustained an eye injury after hot molten steel came in contact with his left eye. The steel extensively damaged the cornea and other parts of his eye. Over the years, Perez underwent several corneal transplants, which ultimately failed due to the extensive damage to his eye. In April 2003, Perez’s physicians attempted another corneal transplant at the University of Mississippi Medical Center. After the surgery, Perez’s physician, Dr. Robert Mallette, prescribed the antibiotic ophthalmic solution Ocuflox, with directions for Perez to administer one drop, four times a day, into his injured eye. Perez took his prescription to the UMC pharmacy to have it filled. However, instead of giving Perez his prescribed medication, Ocuflox, the pharmacy gave him Floxin Otic, with directions for him to administer one drop, four times a day, into the injured eye. Floxin Otic’s active ingredients and solutions are identical to Ocuflox. Soon after the surgery, ulcers developed on Perez’s injured eye. His eye became infected, and doctors eventually had to remove it. Perez filed suit against UMC and Pharmacy Management Business of Cardinal Health in the circuit court, asserting UMC and Cardinal Health were negligent and had breached their duty by not giving him the exact medication prescribed by his physician. Hartford Accident and Indemnity Company intervened to recover the workers’ compensation benefits it had paid to Perez as a result of Perez’s initial eye injury, which occurred during his employment with Mississippi Steel. UMC and Cardinal Health filed a motion for summary judgment which the court granted. Perez appeals. |
| Summary of Opinion Analysis: | Perez argues that a genuine issue of material fact exists as to whether the alleged erroneous dispensing of Floxin Otic caused injury to his eye. Perez argues that since Dr. Berry concluded Floxin Otic harmed Perez’s eye, and since UMC’s and Cardinal Health’s experts opined an opposing theory that Floxin Otic did not proximately cause Perez’s injury, then the circuit court in this case was confronted with a “battle of the experts,” which Perez claims a jury must decide. To survive summary judgment, the plaintiff must rebut the defendant's claim that no genuine issue of material fact exists by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of the injury. The party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial. To have power to generate a genuine issue of material fact, the affidavit must be sworn; be made upon personal knowledge; and show that the party providing the factual evidence is competent to testify. Dr. Berry’s affidavit failed to sufficiently show or state causation. In his affidavit, Dr. Berry provided no evidentiary support for his conclusions. The record shows that the ingredients and formulations listed in the package inserts for Ocuflux and Floxin Otic are practically identical; however, Dr. Berry failed to provide any evidentiary support for his conclusion that the difference in the preparation of the two solutions would cause harm if Floxin Otic is used in the eye instead of the ear. Dr. Berry also never identified how the two solutions differed. Thus, Perez failed to present evidence sufficient to create a genuine issue of material fact as to causation. |
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