Sherry Scales v. Lackey Memorial Hospital
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-00707-COA
SHERRY SCALES
APPELLANT
v.
LACKEY MEMORIAL HOSPITAL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/6/2006
HON. V.R. COTTEN
SCOTT COUNTY CIRCUIT COURT
MICHAEL P. YOUNGER
LOUIS G. BAINE
JAN F. GADOW
CIVIL - MEDICAL MALPRACTICE
SUMMARY JUDGMENT GRANTED TO
LACKEY MEMORIAL HOSPITAL
AFFIRMED - 8/5/2008
BEFORE MYERS, P.J., CHANDLER AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Sherry Scales appeals the decision of the Scott County Circuit Court, which granted
summary judgment in favor of Lackey Memorial Hospital (Lackey Memorial). Scales sued Lackey
Memorial based on the hospital’s alleged negligence in failing to diagnose a heart attack in process
and failure to utilize the applicable standard of care in her treatment. On appeal, Scales argues that
summary judgment was premature due to the lack of discovery and that additional discovery would
have revealed a genuine issue of material fact. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On April 22, 2003, Scales filed a complaint in the Scott County Circuit Court alleging
medical malpractice. The complaint alleged that Scales was admitted to the emergency room at
Lackey Memorial suffering from extreme chest pains and that the emergency room staff at the
hospital was negligent in failing to diagnose Scales with the onset of a heart attack and failing to
utilize proper procedures and treatments for a person suffering from a heart attack.
¶3.
Lackey Memorial answered on October 23, 2003, and on the same day, it served Scales with
a set of interrogatories and requests for production of documents. One of the interrogatories
requested that Scales identify any expert she intended to call at trial and the subject matter of the
expert’s testimony. In response, on November 24, 2003, Scales provided the names of two doctors
as potential expert witnesses: Dr. George Reynolds and Dr. Steve Hindman, both of whom were
cardiologists who had been involved in Scales’s treatment. Scales did not, however, provide the
substance of the facts and opinions to which these doctors were expected to testify. According to
Lackey Memorial’s counsel, there were some later informal requests for additional expert
information which went unanswered, following which Lackey Memorial filed a motion for summary
judgment on October 18, 2005, on the ground that Scales had failed to come forward with any expert
testimony which would establish the requisite elements of her medical malpractice claim.
¶4.
On February 8, 2006, along with her response to the motion for summary judgment, Scales
filed a supplement to her answer to the expert interrogatory, which again listed Dr. Reynolds and
Dr. Hindman as treating physicians. The supplement also stated that Dr. Reynolds would testify that
Scales suffered a massive heart attack requiring surgery and resulting in total disability. The
supplement did not, however, state that either Dr. Reynolds or Dr. Hindman would opine that there
had been a breach in the standard of care. The supplemental response also identified, for the first
time, Dr. Donald H. Marks and stated that he would testify that Lackey Memorial failed to exercise
ordinary skill and care, thereby breaching the standard of care required in treating Scales.1 The
1
The supplement stated that Dr. Marks, based on his examination of Scales’s medical
records and the affidavits of her mother and brother, had formulated the following opinion:
2
supplemental response was signed only by Scales’s attorney, not by Scales herself.
¶5.
At the hearing on the motion for summary judgment, Scales’s attorney stated that, at the
beginning of the case, there was a long period of time during which he was not aware who the
attorney for the hospital was going to be or whether there was going to be insurance coverage. He
argued that summary judgment was premature because Lackey Memorial had not deposed any of
the expert witnesses listed in the answers to the interrogatories. In addition, he argued that he had
experienced medical problems during the time this case was pending and additional family members
had stayed with him because of Hurricane Katrina. He stated that it was still uncertain as to whether
Dr. Reynolds would testify that the standard of care was breached, but Dr. Marks would opine that
the standard of care was breached. Lackey Memorial argued that it had no obligation to depose
those witnesses and that summary judgment was proper due to Scales’s failure to produce any sworn
testimony from an expert witness.
¶6.
On April 6, 2006, the trial court granted summary judgment on the ground that Scales had
failed to produce expert testimony supporting her claim of medical malpractice. The trial court
further found that Scales’s unsworn supplemental interrogatory responses were insufficient to create
Specifically, when Ms. Scales came to the Defendant facility and was given
nitroglycerin which eased her pain, the hospital deviated from the standard of care
at that time in not administering clot busting medications and further deviated from
the standard of care in not transporting Ms. Scales immediately to the nearest cardiac
unit. The affidavits submitted above referenced to Dr. Marks indicated that the
Plaintiff was given nitroglycerin by the Defendant’s staff and her heart pain ceased
for a period of time and then came back only to be alleviated again by taking the
medication. Dr. Marks would testify that the standard of care was breached after the
second dose of nitroglycerin was given and the standard of care would have
mandated that the Plaintiff be given immediate clot busting medication as well as a
morphine drip and further that the hospital deviated from the standard of care in not
transporting Ms. Scales immediately to a cardiac unit.
Dr. Marks will testify that the Defendant breached the standard of care by not
recognizing the symptoms of the Plaintiff’s condition and that the Defendant failed
to take obvious symptoms of the onset of a heart attack.
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a genuine issue of material fact. The trial court stated that while it was sympathetic to the health and
family problems of Scales’s counsel, the action had been filed for three years, and Hurricane Katrina
had struck in August 2005.
¶7.
On appeal, Scales argues that the trial court erred in granting summary judgment to Lackey
Memorial due the lack of discovery that had been conducted in this case. She contends that Lackey
Memorial had only issued one set of interrogatories and had not deposed the witnesses listed in the
answers to the interrogatories; therefore, the trial court should have granted a continuance so that
additional discovery could be conducted. Scales also argues that a continuance should have been
granted on account of the health and personal issues of her counsel.
STANDARD OF REVIEW
¶8.
When reviewing a trial court’s grant of summary judgment, this Court applies a de novo
standard of review. Busby v. Mazzeo, 929 So. 2d 369, 372 (¶8) (Miss. Ct. App. 2006). Rule 56(c)
of the Mississippi Rules of Civil Procedure provides that summary judgment is proper where “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.” M.R.C.P. 56(c). When considering a motion for
summary judgment, the deciding court must view all evidence in a light most favorable to the
nonmoving party. Busby, 929 So. 2d at 372 (¶8). Only when the moving party has met its burden
by demonstrating that there are no genuine issues of material fact in existence should summary
judgment be granted. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990).
ANALYSIS
¶9.
Scales contends that the trial court erred in granting summary judgment to Lackey Memorial
when so little discovery had been conducted. According to Scales, the trial court should have
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granted a continuance so that Lackey Memorial could depose the expert witnesses identified in the
interrogatory answers. She relies on the fact that for a period of time after the commencement of
her case, it was not known who the attorney for the hospital would be or whether there would be
insurance coverage. Scales also relies on her counsel’s health and personal problems to support her
position.
¶10.
The law of summary judgment is well settled. Summary judgment will only be granted when
there is no genuine issue of material fact to be decided at trial; thus, judgment is granted as a matter
of law. Mink v. Andrew Jackson Cas. Ins. Co., 537 So. 2d 431, 432-33 (Miss. 1988). To withstand
summary judgment, the party opposing the motion must present sufficient proof to establish each
element of each claim. Galloway v. Travelers Ins. Co., 515 So. 2d 678, 684 (Miss. 1987).
Specifically, “the plaintiff may not rely solely upon the unsworn allegations in the pleadings or
‘arguments and assertions in briefs or legal memoranda.’” Palmer v. Biloxi Reg’l Med. Ctr., 564
So. 2d 1346, 1356 (Miss. 1990) (quoting Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182,
186 (Miss. 1989)). “[W]hen a party, opposing summary judgment on a claim or defense as to which
that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an
essential element of the claim or defense, then all other facts are immaterial, and the moving party
is entitled to judgment as a matter of law.” Galloway, 515 So. 2d at 684.
¶11.
“In a medical malpractice action, negligence cannot be established without medical
testimony that the defendants failed to use ordinary skill and care.” Smith v. Gilmore Mem’l. Hosp.,
Inc., 952 So. 2d 177, 180 (¶10) (Miss. 2007) (quoting Travis v. Stewart, 680 So. 2d 214, 218 (Miss.
1996)). “Indeed, in the absence of a recognized exception, ‘expert testimony is generally required
to survive summary judgment.’” Id. (quoting Sheffield v. Goodwin, 740 So. 2d 854, 856 (¶6) (Miss.
1999)). “[I]n order to prevail in a medical malpractice action, a plaintiff must establish, by expert
5
testimony, the standard of acceptable professional practice; that the defendant physician deviated
from that standard; and that the deviation from the standard of acceptable professional practice was
the proximate cause of the injury of which plaintiff complains.” Brown v. Baptist Mem'l
Hosp.-DeSoto, Inc., 806 So. 2d 1131, 1134 (¶12) (Miss. 2002) (citations omitted).
¶12.
This Court has addressed this requirement on numerous occasions in the context of summary
judgment and has concluded that where the nonmoving party will bear the burden of proof at trial,
the moving party may meet its summary judgment burden by exhibiting to the trial court that the
nonmoving party has failed to produce the sworn affidavit of a medical expert supporting his or her
negligence claim.
¶13.
In Paepke v. North Mississippi Medical Center, 744 So. 2d 809 (Miss. Ct. App. 1999), this
Court found that the trial court did not err in requiring the plaintiff in a medical malpractice action
to present expert medical testimony establishing the standard of care when the defendants had
presented no medical testimony to support their motion for summary judgment. Id. at 812-13 (¶14).
We stated:
The party moving for summary judgment bears the burden of persuading the trial
court that no genuine issue of material fact exists, and that they are, based on the
existing facts, entitled to judgment as a matter of law. The movant and non-movant
bear the burdens of production corresponding to the burdens of proof they would
bear at trial. Thus, the movant only bears the burden of production where they would
bear the burden of proof at trial. Correspondingly, the non-movant, provided he
would bear the burden of proof at trial on the issue in question, is responsible for
‘producing supportive evidence of significant and probative value’ in opposition to
the motion for summary judgment.” Because Mr. Paepke bore the burden of
producing supportive evidence in opposition to the summary judgment motion, he
properly presented a medical affidavit which described the requisite standard of care
for an emergency room physician, radiologist, and hospital.
Id. (internal citation omitted); see also Palmer, 564 So. 2d at 1355 (“The movant bears the burden
of production if, at trial, he ‘would [bear] the burden of proof on th[e] issue’ raised.”) (citation
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omitted); Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988) (“Rule 56 does not cast upon
the movant any burden of proof beyond that which he would shoulder at trial. . . . The movant has
the burden of production only where at trial the movant would have the burden of proof.”).
¶14.
In Langley v. Miles, 956 So. 2d 970 (Miss. Ct. App. 2006), the trial court granted summary
judgment to the defendants based on the plaintiff’s failure to produce sworn expert medical evidence
in response to the motion for summary judgment. Id. at 975 (¶16). On appeal, the plaintiff argued
that because no supporting affidavits were attached to the defendants’ motion for summary
judgment, the defendants failed to meet their burden of persuasion; therefore, she was not obligated
to come forth with any sworn medical evidence. Id. at 976 (¶18). In rejecting this argument, we
stated:
The party moving for summary judgment bears the burden of persuading the trial
court that no genuine issue of material fact exists, and that they are, based on the
existing facts, entitled to judgment as a matter of law. In this case, the defendants
met this burden by pointing out from the existing facts that, because Langley lacked
expert medical evidence, there was no genuine issue of material fact and the
defendants were entitled to a judgment as a matter of law. Langley had the burden
of proof of medical negligence at trial and, to withstand summary judgment, Langley
needed to produce evidence of “significant and probative value” tending to show that
a genuine issue of material fact existed. This would have required a sworn affidavit
of an expert witness attesting to the standard of care and that the defendants’
treatment of Langley breached the standard of care. Langley failed to produce any
sworn expert medical evidence in response to the defendants’ motion. Therefore, the
trial court appropriately granted summary judgment on this ground.
Id. at (¶19) (internal citations and quotations omitted).
¶15.
In Griffin v. Pinson, 952 So. 2d 963 (Miss. Ct. App. 2006), the plaintiff, in response to the
defendant’s interrogatory requesting the name and qualifications of each expert witness to testify
as well as the subject matter of their testimony, responded only that she would “supplement with
expert opinions.” Id. at 964 (¶3). The defendant then filed a motion for summary judgment on the
ground that the plaintiff “lacked the opinion of a qualified medical expert to support her allegations.”
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The plaintiff filed a response to the motion and attached a supplemental response to the expert
testimony interrogatory in which she identified an expert and the matters to which the expert would
testify; however, the supplemental response was not sworn by the expert, only by the plaintiff. Id.
at (¶4). The defendant then filed a motion to strike the response on the ground that it was not
supported by affidavits as required by Rule 56(e); the plaintiff filed a supplemental designation of
experts in which she identified the same expert, but she again failed to attach an affidavit. She also
identified another expert and stated what she expected his testimony to be, but the expert neither
swore to the document nor provided an affidavit. Id. at 964-65 (¶5). In response to the defendant’s
motion to strike, the plaintiff argued that she had designated an expert prior to the deadline set forth
in the scheduling order. Id. at 965 (¶5). The trial court subsequently granted the defendant’s motion
to strike and motion for summary judgment. Id. at 965 (¶6).
¶16.
On appeal, the plaintiff argued that she created a genuine issue of material fact when she
supplemented her response to the defendant’s expert witness interrogatory and designated experts
pursuant to the scheduling order. Id. at 966 (¶8). The defendant argued that summary judgment was
appropriate because the plaintiff failed to present an affidavit from any of her expert witnesses. Id.
at 966-67 (¶9). This Court found that “in neglecting to provide the affidavit of a medical expert to
support her medical malpractice claim, [the plaintiff] failed to comply with Rule 56(e) of the
Mississippi Rules of Civil Procedure.” Id. at 967 (¶11) (emphasis added). We stated that the
anticipated expert opinion noted by the plaintiff “could not have been based on her personal
knowledge,” and that the plaintiff had ample time in which to produce an expert affidavit. Id.
Accordingly, we affirmed the trial court’s grant of summary judgment.
¶17.
Mississippi law requires a plaintiff in a medical malpractice action to produce sworn expert
testimony supporting his or her claim in order to establish a prima facie case of malpractice.
8
Therefore, as we held in Paepke, Langley, and Griffin, a defendant in a medical malpractice action
may meet its summary judgment burden by pointing out to the court that the plaintiff has failed to
produce sworn expert testimony supporting his or her allegations.
¶18.
Based on the foregoing authority, we find that the trial court was correct in granting
summary judgment to Lackey Memorial. Lackey Memorial met its summary judgment burden by
pointing out that Scales had failed to produce any sworn expert testimony establishing the essential
elements of her medical malpractice claim. Once Lackey Memorial did so, the burden then shifted
to Scales to come forth with sworn expert testimony stating that her physicians breached the
applicable standard of care; Scales failed to meet this burden. Her unsworn answers to Lackey
Memorial’s expert interrogatories were not sufficient to create a genuine issue of material fact. In
Walker v. Skiwski, 529 So. 2d 184, 187 (Miss. 1988), the Mississippi Supreme Court found that
listing expert witnesses in interrogatories without providing any sworn testimony of such witnesses
was the “fatal deficiency in [the plaintiffs’] opposition to summary judgment.” Id. The court then
stated:
If the Walkers had supplied the Circuit Court with an affidavit from even one of
these five experts which, after the proper predicate, articulated the content of the
standard of care and offered an opinion that in the performance of the circumcision
on young Walker, Skiwski deviated from that standard of care and that this deviation
caused in whole or in part young Walker's injuries, the Circuit Court would have
been bound to deny the motion for summary judgment. Instead, however, Herman
J. Walker furnishes his own sworn statement that this is what his expert witnesses
would say. But such is pure hearsay and Rule 56(e) declares such to be incompetent
in support of -- or in opposition to -- summary judgment.
Id. Here, in response to Lackey Memorial’s summary judgment motion, Scales merely provided a
supplemental answer to the expert interrogatory that stated Dr. Marks would testify that the standard
of care was breached. She failed to supply any type of sworn testimony from Dr. Marks. Moreover,
the interrogatories were not sworn to by Scales, but only signed by her attorney. Therefore, as in
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Walker, the information provided in the supplemental answer was “pure hearsay and Rule 56(e)
declares such to be incompetent in support of -- or in opposition to -- summary judgment.” Id.; see
also Palmer, 564 So. 2d at 1356 (“‘To have power to generate a genuine issue of material fact,’ the
‘affidavit or otherwise’ (e.g., depositions and answers to interrogatories) must: (1) be sworn; (2) be
made upon personal knowledge; and (3) show that the party providing the factual evidence is
competent to testify.”) (citation omitted). We find that the trial court was correct in concluding that
Scales had failed to meet her burden of creating a genuine issue of material fact and in granting
summary judgment in favor of Lackey Memorial.
¶19.
Scales contends that the trial court should have granted a continuance pursuant to Mississippi
Rule of Civil Procedure 56(f) in order to allow for further discovery.2 Rule 56(f) states as follows:
Should it appear from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or may
make such order as is just.
M.R.C.P. 56(f). “A trial court has sound discretion to grant or deny a continuance under Rule
56(f).” Stallworth v. Sanford, 921 So. 2d 340, 342-43 (¶9) (Miss. 2006) (citing Owens v. Thomae,
759 So. 2d 1117, 1120 (¶10) (Miss. 1999)). “This Court will only reverse a trial court where its
decision can be characterized as an abuse of discretion.” Id. at 343 (¶9) (citation omitted). When
a party makes a Rule 56(f) motion, he or she “must present specific facts why he cannot oppose the
motion and must specifically demonstrate ‘how postponement of a ruling on the motion will enable
him, by discovery or other means, [to] rebut the movant’s showing of the absence of a genuine issue
2
We note that there is no indication from the record that a scheduling order was ever issued
in this case; therefore, presumably, the parties were operating under Rule 4.04(A) of the Uniform
Rules of Circuit and County Court, which states that “[a]ll discovery must be completed within
ninety days from service of an answer by the applicable defendant.”
10
of fact.’” Owens, 759 So. 2d at 1120 (¶12) (citation omitted).
¶20.
We note initially that there is no indication from the record that Scales ever made a motion
pursuant to Rule 56(f); rather, she waited until the day of the hearing to request a continuance from
the trial court.3 In any event, we find no abuse of discretion in the trial court’s refusal to allow
additional time for discovery. Almost three years elapsed between the time Scales filed her
complaint and the time the hearing was held on Lackey Memorial’s motion for summary judgment,
and two years elapsed from the time Lackey Memorial served its interrogatories and requests for
production of documents until the hospital filed its motion for summary judgment. Therefore, Scales
had ample time in which to produce sworn expert testimony supporting her malpractice allegations.
Moreover, four months elapsed between the time the summary judgment motion was filed and the
time the hearing on the motion was held, and pursuant to Mississippi Rule of Civil Procedure 56(c),
Scales could have produced supporting affidavits at any time up until the day before the hearing.
¶21.
Further, in seeking a continuance for further discovery, Scales did not allude to any
additional discovery to be conducted on her part, nor did she indicate that information needed to
oppose the motion for summary judgment was in Lackey Memorial’s possession. See Marx v. Truck
Renting & Leasing Ass’n., 520 So. 2d 1333, 1343-44 (Miss. 1987) (stating that completion of
discovery is preferable “especially . . . where the party seeking to invoke the protections of Rule
56(f) claims the necessary information rests within the possession of the party seeking summary
judgment” and that “Rule 56(f) is not designed to protect the litigants who are lazy or dilatory and
3
We also note that Rule 56(f) requires that a party file an affidavit in support of his or her
motion for a continuance, which Scales did not do in this case. M.R.C.P. 56(f). However, the
Mississippi Supreme Court has held that the failure to file an affidavit is not fatal to the motion if
“the court conclude[s] that the party opposing summary judgment had been diligent and ha[s] acted
in good faith.” Owens, 759 So. 2d at 1121-22.
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normally the party invoking Rule 56(f) must show what steps have been taken to obtain access to
the information allegedly within the exclusive possession of the other party”) (citation omitted).
Rather, Scales relied on the fact that after she listed her treating physicians in the answer to the
expert interrogatory, Lackey Memorial never noticed any depositions for those physicians prior to
filing the motion for summary judgment although offers were extended for the depositions to be
taken. Scales, however, cites no authority supporting the proposition that Lackey Memorial was
under any obligation to depose the physicians, especially given that Lackey Memorial was not
provided with any sworn material attesting to what the physicians would testify.4 Moreover, it is
not the responsibility of a defendant to help the plaintiff establish the elements of his or her prima
facie case or create a genuine issue of material fact. Scales also argues that she furnished her own
sworn affidavit, as well as the affidavits of her mother and brother, recounting the events of the night
of her heart attack; however, as neither Scales nor her mother or brother qualified as medical
experts, their testimony did not serve to create a genuine issue of material fact in response to Lackey
Memorial’s motion for summary judgment.
¶22.
Scales relies on the fact that for several months after the complaint was filed, it was uncertain
who the attorney for Lackey Memorial was and whether there was going to be insurance coverage.
She also relies on the health and family problems her attorney experienced during the time this case
was pending. We, however, can discern no abuse of discretion in the trial court’s failure to grant
Scales a continuance based on these circumstances. Like the trial court, we are sympathetic to the
attorney’s plight. Nevertheless, given that approximately three years elapsed from the time Scales
filed her complaint and the time summary judgment was granted to Lackey Memorial, we cannot
4
The trial court found that there was “nothing on the face of Plaintiff’s pleading to infer
negligence from Doctors Hindman and Reynolds, and in this regard the Court finds Defendant had
no duty to depose either of those physicians.”
12
say that the trial court abused its discretion in finding that the attorney’s personal and health
problems were not sufficient to warrant a continuance for additional discovery.
¶23.
Scales’s attorney stated at oral argument that he underwent five surgeries in thirteen months
during 2004 and 2005. However, this accounts for only approximately one third of the time between
filing of the complaint and the grant of summary judgment. Moreover, as for the attorney’s family
problems associated with Hurricane Katrina, the trial court noted that the hurricane occurred on
August 28, 2005, more than two years after Scales filed her complaint. Finally, the identity of the
attorney for the hospital had no bearing on the requirement that Scales support her claim with expert
testimony. As the Mississippi Supreme Court has stated, a plaintiff in a medical malpractice action
knows “from the very moment the suit [is] filed . . . that an expert witness [will] be needed to
survive summary judgment.” Brooks v. Roberts, 882 So. 2d 229, 232 (¶10) (Miss. 2004). In this
case, Scales knew from the time she filed her complaint that expert testimony would be necessary
to withstand a summary judgment by Lackey Memorial, and we find no abuse of discretion in the
trial court’s refusal to allow additional time for discovery prior to ruling on Lackey Memorial’s
motion for summary judgment. Accordingly, we affirm the trial court’s grant of summary judgment
in favor of Lackey Memorial.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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