Alma Hill v. Clark G. Warden, M.D.
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01229-COA
ALMA HILL, WIFE OF DECEDENT, THOMAS HILL, INDIVIDUALLY AND
ON BEHALF OF THOMAS HILL
APPELLANT
v.
CLARK G. WARDEN, M.D.
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
07/06/2000
HON. DALE HARKEY
JACKSON COUNTY CIRCUIT COURT
WILLIAM CHAD STELLY
STEPHEN WALKER BURROW
CIVIL - MEDICAL MALPRACTICE
SUMMARY JUDGMENT IN FAVOR OF CLARK G.
WARDEN, M.D. ACTION DISMISSED WITH
PREJUDICE.
AFFIRMED - 10/02/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
10/23/2001
BEFORE SOUTHWICK, P.J., LEE, AND MYERS, JJ.
LEE, J., FOR THE COURT:
¶1. Alma Hill, the wife of Thomas Hill, filed a complaint against Clark G. Warden, M.D., Singing River
Hospital, and Singing River Hospital Systems Foundation as an individual and on behalf of Thomas Hill, the
decedent, for medical malpractice. The actions against Singing River Hospital and Singing River Hospital
Systems Foundation were dismissed, and the action proceeded against Dr. Warden. Dr. Warden filed a
motion for summary judgment which the trial court granted. Feeling aggrieved by the granting of this motion,
Ms. Hill filed a timely appeal. Ms. Hill presents several issues: (1) whether the trial judge abused his
discretion when he denied Ms. Hill further time to conduct discovery before granting the motion for
summary judgment, (2) whether the trial court erred in granting Dr. Warden's motion for summary judgment
as it pertains to Ms. Hill's claim for medical malpractice, and (3) whether the trial court erred in granting Dr.
Warden's motion for summary judgment regarding Ms. Hill's claim for lack of informed consent. We find
that all of these issues are without merit and affirm the trial court.
FACTS
¶2. On February 23, 1998, Alma Hill, wife of the decedent Thomas Hill, filed a complaint in her individual
and representative capacity against Clark G. Warden, M.D., Singing River Hospital, and Singing River
Hospital Systems Foundation. Subsequently, Singing River Hospital and Singing River Hospital Systems
Foundation were dismissed from the case. However, the case proceeded against Dr. Warden. Therefore,
we focus on Ms. Hill's complaint as it pertained to Dr. Warden.
¶3. The complaint against Dr. Warden alleged that on March 1, 1996, he committed medical malpractice
when he severed Mr. Hill's hypoglossal nerve while performing a right carotid endarterectomy to cease the
blockage of blood going to his brain. Primarily, Ms. Hill contended that as a result of the severing of the
hypoglossal nerve, Mr. Hill experienced a loss of control of bodily function -- he could not eat solid food
and could not engage in regular family activities. The complaint further alleged that the deterioration he
suffered eventually resulted in his death. Additionally, Ms. Hill asserted that Dr. Warden did not inform Mr.
Hill of the risks involved with the surgical procedure. Dr. Warden answered the complaint and thereafter,
the case proceeded into the discovery phase.
¶4. On May 21, 1998, counsel for Dr. Warden filed a notice of service of discovery. On May 29, 1998,
counsel for Ms. Hill requested additional time to respond to the interrogatories and request for production
of documents. The record reflects that this motion was granted and an order was entered extending the time
until July 10, 1998. On November 30, 1998, Dr. Warden filed a motion to compel supplemental discovery
responses from Ms. Hill. Ms. Hill still had not responded completely to the interrogatories and request for
production of documents. On January 8, 1999, the trial court entered an order compelling Ms. Hill to
supplement her discovery answers. Interrogatory number six which addressed expert testimony was among
those to which she was ordered to respond. On September 16, 1999, Dr. Warden filed a motion for
summary judgment.
¶5. The motion for summary judgment contended that on May 21, 1998, discovery was propounded to
Ms. Hill. Dr. Warden alleged that within his interrogatories he had sought the designation of experts. In a
supplemental response to the request which was dated January 12, 1999, Ms. Hill stated that no expert had
been retained; however, once retained the answer would be amended. Nevertheless, as of September 16,
1999, the date the motion for summary judgment was filed, there had been no further supplementation
regarding expert testimony.
¶6. An initial hearing on the motion for summary judgment was held on November 5, 1999. At this hearing
Ms. Hill requested a continuance. The continuance was granted and scheduled for November 12, 1999. At
these hearings Ms. Hill's affidavits were submitted and made a part of the record. Nevertheless, these
affidavits went primarily to the lack of informed consent, and while the record states that one affidavit
purported that Dr. Warden had stated that he had "made a mistake," the record was never supplemented
with a name of an expert witness to support this contention. On June 22, 2000, the trial court granted the
motion for summary judgment.
DISCUSSION
I. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE DENIED
MS. HILL FURTHER TIME TO CONDUCT DISCOVERY BEFORE GRANTING THE
MOTION FOR SUMMARY JUDGMENT.
¶7. Ms. Hill claims that the trial court's granting of the summary judgment motion was premature because no
discovery deadline or trial date had been set and additional time for trial preparation on the issues was
needed. Primarily, Ms. Hill argues that the trial court erred because she had not received a certified, true
and complete copy of Dr. Warden's chart associated with the treatment of Mr. Hill, nor had she taken the
deposition of Dr. Warden regarding this procedure. Ms. Hill contends that the denial of an opportunity to
continue discovery and take the deposition of Dr. Warden was an improper sanction. However, in
response to this we look to the case of Prescott v. Leaf River Forest Products, 740 So. 2d 301, 307
(¶13) (Miss. 1999), which examined the issue of granting a summary judgment when the non-moving party
claims he or she is prejudiced in answering a motion for summary judgment because discovery has not been
completed.
¶8. The Mississippi Supreme Court made the following comments regarding the application of Mississippi
Rules of Civil Procedure Rule 56 (f) to this situation and in part, stated:
The party opposing the motion for summary judgment may not rely on vague assertions that discovery
will produce needed, but unspecified, facts particularly where there was ample time and opportunity
for discovery. This is because rule 56 (f) is not designed to protect the litigants who are lazy . . . .
Id. at 308 (¶13). (citations omitted).
¶9. Counsel for Ms. Hill stated to the trial court that he wished to take Dr. Warden's deposition to obtain
"[m]ore details as to the procedure itself, as well as an explanation of the absence of a signed patient
consent form which would explain the possible complications of the surgery." In Prescott, the court stated
that an abuse of discretion standard is applied to a trial judge's decision to grant a summary judgment
before discovery is completed. Id. at 307 (¶13). In light of the above statement and Ms. Hill's nineteen
month delay in attempting to take Dr. Warden's deposition, we do not find that the trial judge abused his
discretion. The statement regarding the hope of obtaining more details of the procedure is very broad,
especially in light of the fact that Ms. Hill had received a copy of the operative report. Additionally, a copy
of the medical authorization was subsequently produced and Ms. Hill was allowed to respond to its
production in a supplemental affidavit prior to the granting of the motion. Accordingly, this issue is without
merit.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING DR. WARDEN'S
MOTION FOR SUMMARY JUDGMENT AS IT PERTAINS TO MS. HILL'S CLAIM
OF MEDICAL MALPRACTICE.
¶10. The lower court is vested with the discretion to grant a summary judgment "if the pleadings,
depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Collier v. Trustmark Nat'l Bank, 678 So. 2d 693, 695 (Miss. 1996); M. R. C. P. 56. The
standard of review on appeal when a trial judge grants a motion for summary judgment allows this Court to
review the record de novo to determine if there was error on the part of the trial judge in granting the
motion. Id. In a motion for summary judgment, the movant and non-movant maintain burdens of production
paralleling their burdens of proof they would sustain at trial. Id. at 696. The party which seeks to recover
for negligent treatment and/or performance must show by a preponderance of the evidence that the
defendant had a legal duty, that he breached that duty when he failed to conform to the required standard of
care, that this breach was the proximate cause of the injury, and that damages were suffered. Phillips v.
Hull, 516 So. 2d 488, 491 (Miss. 1987). The party that is seeking summary judgment has the burden of
persuading the trial judge that there are no genuine issues of material fact, and that based upon the facts, he
is entitled to a summary judgment. Id.
¶11. Mississippi Rules of Civil Procedure Rule 56 (b) states the following regarding when a summary
judgment may be requested by a defendant:
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or
a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a
summary judgment in his favor as to all or any part thereof.
¶12. Ms. Hill argues that the granting of the motion for summary judgment in favor of Dr. Warden was in
error because there are genuine issues of material fact that remain in dispute. Namely, she argues that the
hospital operative chart note regarding the carotid endarterectomy performed on Mr. Hill states that the
hypoglossal nerve was severed. Additionally, Ms. Hill contends that Dr. Warden stated to her that he had
"made a mistake." Therefore, a genuine issue of material fact existed regarding whether Dr. Warden was
negligent in severing the hypoglossal nerve.
¶13. A review of the record discloses that Ms. Hill was given a copy of Mr. Hill's medical chart regarding
the surgery. As stated by Ms. Hill, the severing of the hypoglossal nerve is documented in Dr. Warden's
operative report of the surgery performed on March 1, 1996. This report documents a description of the
procedure and is signed by Dr. Warden. In fact, Dr. Warden does not deny that he severed the
hypoglossal nerve; however, in an affidavit submitted by Dr. Warden he asserts that this was not a breach
of the standard of care. Dr. Warden cited the case of Phillips v. Hull, 516 So. 2d 488, 491 (Miss. 1987),
which states that in order to overcome a motion for summary judgment when the issue is not within the
common knowledge of laymen, in the case of medical negligence, the plaintiff is required to offer by
affidavit, or otherwise, expert testimony which reveals that there has been a breach of the standard of care
by the doctor in question. Therefore, with or without a certified copy of the report, it was incumbent upon
Ms. Hill to provide expert testimony which stated that the severing of the hypoglossal nerve during the
surgery was a breach of the standard of care.
¶14. Dr. Warden filed his motion for summary judgment on September 16, 1999. Dr. Warden argued in his
motion for summary judgment and again in his brief that there was no evidence that would indicate that he
had breached the standard of care or that the severing of the hypoglossal nerve was the proximate cause of
Mr. Hill's deteriorating health after the surgery.
¶15. Ms. Hill argues that expert testimony is not necessary at this point in the case because Dr. Warden
stated to her that he had "made a mistake." Even if we assume that this statement was in fact made by Dr.
Warden, it does not alleviate the need for expert testimony. The fact that he might have stated that he had
made a mistake does not establish a breach of the standard of care or establish the proximate cause
between the surgery and Mr. Hill's death.
¶16. The record discloses that Dr. Warden moved for a summary judgment after there was no response to
his interrogatory regarding the designation of experts. The filing of the motion occurred approximately
nineteen months after Ms. Hill had filed her complaint. During this time no expert was designated to support
the allegations in her complaint. Additionally, the facts above show that prior to Dr. Warden filing his
motion, Ms. Hill had been ordered to respond to his discovery requests. Even after the motion for summary
judgment was filed, Ms. Hill was granted two continuances regarding the motion. It also appears that while
Ms. Hill finally made an attempt to obtain an expert witness, she did not do so until after she received Dr.
Warden's motion for summary judgment. She never provided a sufficient reason as to why she had delayed
in an her attempt to obtain an expert.
¶17. Since this Court assumes that the surgical procedure preformed on Mr. Hill is not within the common
knowledge of laymen, expert testimony was required to meet the burden of proof by a preponderance of
the evidence and establish the element of the breach of the standard of care, as well as proximate cause. In
fact, the trial judge inquired about the function of the hypoglossal nerve. A review of the record discloses
that Ms. Hill was given ample time to designate an expert to meet her burden and establish both proximate
cause and damages, and she failed to do so. Therefore, we find that the trial judge did not err in granting
Dr. Warden's motion for summary judgment, and accordingly, we affirm the decision of the trial court.
III. WHETHER THE TRIAL COURT ERRED IN GRANTING DR. WARDEN'S
MOTION FOR SUMMARY JUDGMENT REGARDING MS. HILL'S CLAIM FOR
LACK OF INFORMED CONSENT.
¶18. Ms. Hill argues that genuine issues of material fact exist because the patient consent form, associated
with the procedure, failed to identify any potential complications with the procedure. Dr. Warden rebuts this
argument by asserting that Ms. Hill's claim must fail because she failed to offer any expert testimony that
stated the lack of informed consent proximately caused the wrongful death of, or injury to, Mr. Hill.
¶19. We note that the medical authorization for Mr. Hill's surgery is not contained in the record. For some
unexplained reason it is missing. Nevertheless, Ms. Hill acknowledges in one of her affidavits that in light of
her husband's medical condition and Dr. Warden establishing that there was an imminent need for the
surgery, she signed his name on the "authorization for and administration of anesthesia and for performance
of operations and other procedures including photographs/videos for medical or legal purposes." Ms. Hill
states that the statements within the authorization did not inform them of any possible complications
associated with the surgery. On the other hand, an affidavit submitted by Dr. Warden alleges that the Hills
were apprized of the complications and risks of the surgery, including possible nerve damage.
¶20. When an individual claims that a physician has breached the duty to obtain the patient's informed
consent the familiar tort elements apply: duty, breach, causation, and damage. Phillips v. Hull, 516 So. 2d
488, 492 (Miss. 1987). If there is a physician-patient relationship, the doctor automatically has the duty to
inform and procure the consent of the patient as it relates to the proposed treatment. Palmer v. Biloxi
Reg'l Med. Ctr., Inc., 564 So. 2d 1346, 1363 (Miss. 1990). However, the individual claiming a breach of
this duty must make more than mere allegations to substantiate that a breach has occurred. Id. In Palmer,
the Mississippi Supreme Court held:
Once proof of duty and breach of that duty is provided, the plaintiff [i.e., Ms. Hill] is required to
produce evidence of two sub-elements of causation. First, the plaintiff must show that a reasonable
patient would have withheld consent had she been properly informed of the risks, alternatives, and so
forth. And second, the plaintiff must show that the treatment was the proximate cause of the worsened
condition. That is, plaintiff must show that she would not have been injured had the appropriate
standard of care been exercised. Generally, proof of the later subelement requires expert testimony
that the defendant's conduct -- not the patient's original illness or injury -- led to the worsened
condition.
Palmer, 564 So. 2d at 1364 (emphasis theirs) (citations omitted).
¶21. Under this case law, not only do we question whether Ms. Hill established the element of a breach of
the duty to obtain informed consent, but it is abundantly clear that she failed to create a factual issue
regarding the last two elements of the tort claim. By languishing in her production of an expert witness, she
did not have the evidence to establish the elements of proximate cause and damages. Therefore, this issue is
without merit.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY GRANTING
SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO
THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS AND
CHANDLER, JJ., CONCUR. IRVING, J., DISSENTS WITH A SEPARATE WRITTEN
OPINION JOINED BY KING, P.J. BRANTLEY, J., NOT PARTICIPATING.
IRVING, J., DISSENTING:
¶23. My colleague, writing for the majority, has written well. However, because I believe it was an abuse of
the trial court's discretion not to allow further discovery in this case, I respectfully dissent.
¶24. I agree with the majority that Hill had an obligation to produce an expert witness to testify as to the
breach of the standard of care regarding the severing of the hypoglossal nerve. However, since it was not
disputed that Dr. Warden severed the nerve, I believe justice dictates that Hill be given the further
opportunity to produce, if indeed she can, a liability expert. Having said that, I am mindful that Dr. Warden
filed his discovery, seeking the identity of Hill's expert, on May 21, 1998, and Hill had not produced such
expert by November 12, 1999, the date of the hearing on Dr. Warden's motion for summary judgment.
This fact, however, has to be considered in light of the fact that no trial date had been set in this case, and
as best as I can tell, there had not been a general discovery order entered setting forth deadlines for
depositions, requests for admission, interrogatories, etc.
¶25. Further, Hill was in somewhat of a struggle to obtain what she considered adequate discovery from
Dr. Warden. On or about August 21, 1998, Hill requested certain discovery from Dr. Warden. Apparently,
that discovery was answered timely but did not include a certified copy of Dr. Warden's chart associated
with his treatment of Hill's decedent. On November 2, 1999, just ten days prior to the hearing on the
motion for summary judgment, Hill received the complete medical chart. Apparently, prior to then, she had
been in possession of only portions of the chart.
¶26. This case, in my judgment, bears a striking similarity to Burkes v. Fred's Stores of Tennessee, Inc.,
768 So. 2d 325 (Miss. Ct. App. 2000). The defendant in Burkes made the same argument, as does Dr.
Warden here, concerning the need for expert testimony to establish liability. Id. at (¶6). We agreed with the
Burkes defendants that expert testimony was required for certain aspects of the plaintiff's case. Id. at (¶21).
However, we determined, on the facts of that case, that material issues of fact existed notwithstanding the
plaintiff's failure to supplement her answers to the defendants' interrogatories.
¶27. Though I do not find Burkes determinative of our case here, I do find the discussion there helpful, for
we made it clear that the grant of summary judgment and dismissal of a case should be utilized rarely as a
means of punishing a party for discovery violations. Id. at (¶12).
¶28. In Thompson v. Patino, 784 So. 2d 220 (Miss. 2001), Thompson filed a complaint against Dr.
Patino and others on February 16, 1994. Id. at 221. On March 11, 1994, the defendants served discovery
requests on Thompson, and Thompson did not answer it within the time allowed by Mississippi Rules of
Civil Procedure. Id. The defendants filed a motion to compel in May and June 1994. "On June 17, 1994,
the circuit court ordered Thompson to respond to the discovery within seven days." Thompson responded
on June 24, 1994, and identified her experts but did not state what the experts' opinions would be. Id. On
July 14, 1994, Thompson filed a motion for extension of time to conduct discovery, and on February 10,
1995, she filed an amended complaint to add an additional defendant. Id. at 222. Thereafter, an agreed
order was entered on September 25, 1995, extending discovery for ninety days. Id. Over a year later, in
October 1996, Thompson requested a sixty-day extension of discovery. Id. This request was denied by the
circuit judge. "On February 5, 1997, approximately three years after Thompson filed her lawsuit against
Patino, Patino filed a motion to dismiss, or, alternatively for summary judgment. Id. At the time the motion
was filed, Thompson had not supplemented her responses to interrogatories to state what her experts would
testify to. She did so five days later, and four days thereafter, Dr. Patino filed a motion to strike her
supplemental responses. Id. The trial court granted Dr. Patino's motion and ultimately granted summary
judgment in favor of Dr. Patino. Id.
¶29. On appeal, this Court affirmed the trial court. The Mississippi Supreme Court granted certiorari and
reversed, finding that the trial court abused its discretion in striking Thompson's supplemental responses and
affidavit of her expert witness. Thompson, 784 So. 2d at 221. In doing so, the supreme court noted that no
trial date had been set at the time of the trial court's action. Id. at 223.
¶30. In our case, Warden requested the identity of Hills's experts on May 21, 1998. Hill responded that no
expert has been retained but that her answer would be supplemented when an expert was retained. When
the motion for summary judgment was filed on September 16, 1999, Hill had not designated an expert. I
am keenly aware that our case differs from Thompson in that in Thompson, the expert had been designated
and Thompson eventually supplemented her answers to the interrogatories propounded to her and
submitted an affidavit from the expert in opposition to the motion for summary judgment. However, that
supplementation was not made until approximately three years after the defendant requested the information
on her experts. In our case, the motion for summary judgment was filed approximately one year and four
months after the request was made for the information on Hill's experts. Therefore, in the case before us,
Hill has not been as dilatory, from the standpoint of the passage of time, as Thompson was in Thompson.
The net effect of what the trial judge did here was to penalize Hill for not designating an expert after being
requested to do so by the Defendant Warden. That might have eventually become the proper remedy, but I
do not believe that time had arrived when the motion was granted. Accordingly, I dissent.
KING, P.J., JOINS THIS SEPARATE OPINION.
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