Shawn Lee Duncan v. Satish Verma
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01834-COA
SHAWN LEE DUNCAN AND APRIL
MARIE DUNCAN, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVES AND
WRONGFUL DEATH BENEFICIARIES OF
ARTHUR EUGENE DUNCAN, DECEASED
APPELLANTS
v.
SATISH VERMA, M.D.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/02/2008
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
DANA J. SWAN
TOMMIE G. WILLIAMS
CIVIL – MEDICAL MALPRACTICE
GRANTED SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT
AFFIRMED – 11/24/2009
BEFORE LEE, P.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Arthur Eugene Duncan (Arthur) was born on July 16, 1999, at Baptist Memorial
Hospital-DeSoto (BMH-DeSoto) in DeSoto County, Mississippi. Arthur experienced trouble
breathing shortly after his birth and it was discovered that he had a bilateral spontaneous
pneumothorax. On July 18, 1999, Arthur started having decreased oxygen saturation and
was transferred to Baptist Memorial Hospital-East (BMH- East)1 in Memphis, Tennessee,
where he died that same day.
¶2.
On July 12, 2001, Arthur’s parents, Shawn Lee and April Marie Duncan (the
Duncans), individually and as personal representatives and wrongful death beneficiaries of
Arthur, filed a complaint in the Circuit Court of DeSoto County, Mississippi. The Duncans
asserted in their complaint, claims for medical negligence against Satish Verma, M.D., for
care provided to Arthur between July 16, 1999, and July 18, 1999. Other defendants were
originally named in the case, but they all were dismissed.
¶3.
Dr. Verma, a licensed pediatrician, filed a motion for summary judgment on January
24, 2003, and in July 2008, he filed a supplemental motion for summary judgment. In
support of his motion, Dr. Verma argued that: he did not owe a duty to the Duncans; the
Duncans failed to present any evidence to establish such a duty; and no evidence existed to
establish such a duty. The Duncans did not file a response to Dr. Verma’s original motion,
but they filed a motion arguing that a factual question was present, thus precluding summary
judgment.
¶4.
On October 2, 2008, the trial court entered an order granting summary judgment in
favor of Dr. Verma and dismissed any and all allegations of negligence. In granting the
summary judgment motion, the trial court held that no material issue of fact existed because
the Duncans failed to offer any expert testimony regarding the duty owed by Dr. Verma to
1
Baptist Memorial Hospital-East is now known as Baptist Memorial HospitalMemphis and is affiliated with Baptist Memorial Hospital-DeSoto.
2
Arthur after a neonatologist2 had been consulted, had begun actively treating Arthur, and had
assumed the responsibility for the care of Arthur. Feeling aggrieved, the Duncans appeal the
trial court’s ruling. Finding no error, we affirm.
STANDARD OF REVIEW
¶5.
This Court reviews a trial court’s ruling on a motion for summary judgment under a
de novo standard. Albert v. Scott’s Truck Plaza, Inc., 978 So. 2d 1264, 1266 (¶5) (Miss.
2008) (citation omitted). The party seeking summary judgment bears the burden of showing
that no genuine issue of material fact exists. Id. “The non-moving party may not rest upon
mere allegations or denials in the pleadings but must set forth specific facts showing that
there are genuine issues for trial.” Id. This Court will examine “all the evidentiary matters
before us, including admissions in pleadings, answers to interrogatories, depositions, and
affidavits,” and we will do so in a light most favorable to the non-moving party. Id. If there
exists a genuine issue of material fact, then summary judgment is not appropriate. Id.
DISCUSSION
¶6.
The Duncans assert only one issue on appeal – that the trial court erred in holding as
a matter of law that Dr. Verma, as treating physician, owed no duty to Arthur after consulting
with another specialist on the care of his patient. Accordingly, the Duncans argue that it was
error to grant Dr. Verma’s motion for summary judgment.
2
A neonatologist is a physician who provides neonatal care to newborns. Dr. Verma
was not a neonatologist at the time that Arthur was a patient at the hospital. BMH-DeSoto
did not have a neonatologist on staff and could not obtain one; therefore, they could not
provide neonatal care to newborns in their hospital.
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¶7.
In support of their argument that summary judgment was inappropriate, the Duncans
asserted that their expert, Dr. Shane L. Bennoch – a pediatrician and neonatologist, had
rendered an opinion to a reasonable degree of medical probability that Dr. Verma and BMHDeSoto failed to meet the minimum standard of care in the treatment of the child and that
said failure to meet the standard of care had resulted in Arthur’s death. The Duncans argued
that Dr. Verma, as treating physician and pediatrician, remained responsible for Arthur’s care
even after he consulted with a neonatologist.
¶8.
In Cheeks v. Bio-Medical Applications, Inc., 908 So. 2d 117, 120 (¶8) (Miss. 2005)
(internal citations omitted), the Mississippi Supreme Court discussed the proof required in
medical malpractice cases, stating:
To present a prima facie case of medical malpractice, a plaintiff, (1) after
establishing the doctor-patient relationship and its attendant duty, is generally
required to present expert testimony[;] (2) identifying and articulating the
requisite standard of care; and (3) establishing that the defendant physician
failed to conform to the standard of care. In addition, (4) the plaintiff must
prove the physician’s noncompliance with the standard of care caused the
plaintiff’s injury, as well as proving (5) the extent of the plaintiff’s damages.
A physician who is sufficiently “familiar with the standards of a medical
specialty, may testify as an expert, even though he does not practice the
specialty himself.” “It is our general rule that in a medical malpractice action
negligence cannot be established without medical testimony that the defendant
failed to use ordinary skill and care.”
More specifically, an expert is needed to show how a breach of the physician's duty
proximately caused the plaintiff's injury. Palmer v. Anderson Infirmary Benevolent Ass’n,
656 So. 2d 790, 795 (Miss. 1995).
¶9.
Mississippi Rule of Civil Procedure 56(b) states that “[a] party against whom a claim,
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counter-claim, 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.” Rule 56(c) states, in pertinent part, that:
The judgment sought shall be rendered forthwith 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.
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. Scales v. Lackey Mem’l Hosp., 988 So. 2d 426, 432 (¶13)
(Miss. Ct. App. 2008) (quoting Paepke v. N. Miss. Med. Ctr., 744 So. 2d 809, 812 (¶14)
(Miss. Ct. App. 1999)).
¶10.
To support his motion for summary judgment, Dr. Verma produced affidavits from
Dr. Manoj Narayanan, Dr. Joe Philips, and Dr. Desh Sidhu. Dr. Sidhu and Dr. Narayanan
testified that they were both personally familiar with the manner in which the neonatologists
practice with regard to patients admitted to the nursery at BMH-DeSoto in July 1999.
¶11.
In July 1999, BMH-DeSoto could not obtain the services of a neonatologist at their
DeSoto County facility. Since there was a need for neonatal services at the facility, BMHDeSoto entered into the Neonatology Services Agreement (Agreement) with East Memphis
Neonatology Associates (the Group) 3 on October 1, 1996. The Group would treat sick
3
East Memphis Neonatology Associates is a Tennessee professional corporation
which engages in the practice of medicine, specializing in neonatology. It appears from the
record that this corporation has no affiliation with Baptist Memorial Hospital.
5
newborns at BMH-DeSoto by utilizing the services of the Group’s licensed, competent,
qualified, and credentialed neonatal nurse practitioners. Under this agreement, the Group
provided all control, direction, and supervision to the certified neonatal nurse practitioners.
¶12.
Dr. Narayanan stated in his affidavit that “once the neonatologist was consulted
regarding Arthur Eugene Duncan and began to treat the baby with the assistance of his nurse
practitioners, this child was under the primary care of the neonatologist . . . once the
neonatologist accepted the consult and began treatment, he must be considered the primary
physician for this infant.” Dr. Narayanan also gave his opinion based on his education,
training, experience, and practice at BMH-DeSoto that Dr. Verma did not violate the
standard of care. Dr. Philips and Dr. Sidhu both stated in their affidavits that they were of
the opinion that Dr. Verma complied with the standards of care expected of a general
practitioner in this case.
¶13.
Once Arthur began experiencing respiratory distress, Dr. Verma asked the nurses in
the nursery to obtain a neonatology consult, which was a higher level of care for the infant.
A short time later, a certified neonatal nurse practitioner was at Arthur’s bedside. The
neonatology team assumed care of the infant at that point and executed all orders for his care.
No evidence has been provided to show that Dr. Verma gave any further orders regarding the
treatment of Arthur. Once the neonatology team accepted the consult, began actively treating
Arthur, and assumed responsibility for his care, Dr. Verma no longer owed any duty to
Arthur.
¶14.
The Duncans have failed to provide any evidence to support their argument that Dr.
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Verma owed a duty to Arthur after the neonatology team was consulted and began treatment
of Arthur. Therefore, they failed to show that a genuine issue of material fact existed, and
the trial court correctly granted summary judgment in favor of Dr. Verma.
¶15. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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