Neely v. North Miss. Med. Ctr., Inc.
| Docket Number: | 2007-CA-00852-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-20-2008 Opinion Author: Diaz, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - M.R.C.P. 56(e) - Expert affidavit Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Graves, Dickinson, Randolph and Lamar, JJ. Dissenting Author : Easley, J., without separate written opinion. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 04-23-2007 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Thomas J. Gardner Disposition: The trial court granted summary judgment in favor of North Miss. Med. Ctr. Case Number: CV02-112(G)L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | James A. Neely and Geneva Neely, Individually and as Heirs-at-Law and the Wrongful Death Beneficiaries of James E. Neely, Deceased |
Dale Danks, Jr.; Pieter Teeuwissen; Michael B. Gratz, Jr. |
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| Appellee: | North Mississippi Medical Center, Inc. | John G. Wheeler | ||
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: | Wrongful death - M.R.C.P. 56(e) - Expert affidavit |
| Summary of the Facts: | After James Neely was found with a fatal head injury at the North Mississippi Medical Center, The plaintiffs filed a complaint for negligence, gross negligence, breach of contract, breach of warranties and recovery of monetary damages for the wrongful death of Neely. The defendant filed a timely response denying liability and propounded interrogatories to the plaintiffs, including an expert interrogatory. After receiving no response to the expert interrogatory, the defendant filed a motion for summary judgment. The plaintiffs had yet to produce an affidavit from a health care professional by the time of the summary judgment hearing. The court granted the motion, and the plaintiffs appeal. |
| Summary of Opinion Analysis: | The plaintiffs argue that because the defendant did not present any evidence demonstrating the absence of genuine issues of material fact, they were not required to submit an affidavit from a qualified expert. Pursuant to M.R.C.P. 56(e), an adverse party may not rest upon the mere allegations or denials of his pleadings. In medical malpractice cases, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care. Failure to produce this evidence dictates that there is no genuine issue of material fact, and therefore, summary judgment was appropriate. |
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