IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-IA-00826-SCT MISSISSIPPI BAPTIST MEDICAL CENTER, INC., PREMIER MEDICAL GROUP OF MISSISSIPPI, LLC, MISSISSIPPI SPORTS MEDICINE AND ORTHOPEDIC CENTER, PLLC, JEFFERY K. LEDUFF, M.D. AND JEFF ALMAND, M.D.

v. JANICE PHELPS

DATE OF JUDGMENT: 05/25/2017 TRIAL JUDGE: HON. W INSTON L. KIDD TRIAL COURT ATTORNEYS: ALTON LAMAR W ATTS D. COLLIER GRAHAM, JR. MILDRED M. MORRIS TIMOTHY LEE SENSING STEPHEN P. KRUGER THURMAN LAVELLE BOYKIN, III COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: GAYE NELL LOTT CURRIE D. COLLIER GRAHAM, JR. MILDRED M. MORRIS TIMOTHY LEE SENSING STEPHEN P. KRUGER ATTORNEY FOR APPELLEE: ALTON LAMAR W ATTS NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: REVERSED AND RENDERED - 10/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND BEAM, JJ. BEAM, JUSTICE, FOR THE COURT: ¶1. This m e dical-m alpractice s uit com es bef o re the Court on Def

endants’ interlocutory appeal f rom the Hinds County Circuit Cour t ’ s o r d er deny ing Def endants’ m otions f

orsum m ary judgm ent. Finding that the plaintif f , Janice Phelps, f

ailed to support her m edicalm alpractice claim s w i t h s w orn expert testim ony on whether Def endants breached any applicable standard of care owed to Phelps, we reverse t he trial court’s denial of sum m ary judgm ent and render judgm ent in f avor of Def endants.
FACTS AND PROCEDURAL HISTORY ¶2. On May 2 , 2 0 1 3 , Dr. Jef f Alm a nd perf

orm ed a lef

t-knee arthroscopy on Phelps at Mississippi Baptist Medical Center ( “MBMC”). Shortly a f t er s urgery , Phelps experienced shortness of breath, and Dr. Jef f rey LeDuf

f ordered a c hest x-ray and placed her on oxy gen. Dr. LeDuf

f subsequently discharged her on May 4, 2013. Two day s later, P h e l ps’s shortenin g o f b r e a t

h worsened, and she went to the em ergency room at Southwest Mississippi Regional Medical Center ( “SMRMC”). There, she w as diagnose d with pneum onia. Af ter being p laced on a ventilator, s he exhibited signs of a stroke. On May 24, 2013 , SMRMC discharged Phelps with a diagnosis of Cebrovascular Accident and Ventilator Dependence and transf erred her to Baton Rouge Rehabilitation Hospital. ¶3. On April 30, 2 015, Phelps f iled suit again s t M B M C , D r s . Alm and and LeDuf f and others (collectively , “Def endants”) alleging m edical m alpractice arising out of her care and

treatm ent at MBMC. A f ter Def enda n t s answered Phelps’s com plaint by deny ing the allegations, they served her with written discovery requests. F ourteen m onths l ate r , when Def endants f iled m otions f

or sum m ary judgm ent, Phelps answered the discovery , p roviding the nam e of her expert witness and a brief description of h i s expected testim ony . The day bef ore the hearing on the m o tions, Phelps responded t o Def endants’ m o tions f

or sum m ary

2judgm ent, again providing only t he nam e of her expert witness and a brief description of his

expected testim ony . ¶4. O n M a y 2 5 , 2 0 1 7 , J u d g e K i d d e n t e r e d a n order, without o pinion, de n y i n g Def endants’ m otions f

or sum m ary judgm ent. Def endants thereaf

t er petitioned this Court f

or interlocutory a

ppeal, c laim ing that the trial court erred i n deny ing t heir m otion f o r sum m ary judgm ent and in providing Phelp s additional tim e t o provide her m edical-expert af f idavit without a specif

i c request. Although Def endants raised these two issues on appeal, we f ind the second i ssu e moot because, even with the extension of tim e, Phelps never subm itted a

m edical-expert a f

f idavit. Theref

ore, t h e s o le issue on a

ppeal is whether the court erred in
f ailing to grant sum m a ry judgm ent in f avor of Def

endants despite P helps’s f ailure to provide
any sworn expert testim ony

to support her m edical-m alpractice claim

. LAW AND ANALYSIS
I. Standard of Review ¶5. A trial court’s grant or denial of sum m ary judgm ent is reviewed de novo. Leffler v. Sharp , 891 So. 2d 152, 156 (Miss. 2004). Sum ma r y j u d g m ent is appropriate when “the pleadings, depositions, answers to interrogatories and adm i ssions o n f ile, together with the af f idavits, if any , show that t here i s no g enuine issue as t o any m a terial f act[ .]” M iss. R. Civ.
P. 5 6(c). “W hen a m otion f or sum m ary judgm ent is m ade and supported as provided in Rule 56, ‘an adverse party

m ay not rest upon the m ere allegations or d enials of [ the] pleadings[ ; rather, the] response m

us t s e t f o rth specif

ic f acts showing that there is a genuine issue f or trial.’” Allen v. Jackson Square Apartm ent H o m e s , L L C , 231 So. 3 d 2 51, 256 (Miss. Ct.

3App. 2017) (q u o t ing Karpinsky v . Am . N at’l Ins. , 109 So. 3d 84, 8 8 (Miss. 2013)). All evidence wi l l b e v i e w e d in the light m o st f avorable to the nonm oving party

. Estate of Northrop v. Hutto , 9 So. 3d 381, 384 (Miss. 2009) (citations om itted). If no g enuine issue of m aterial f

act exists to b e resolved, “then the m oving party is e nt itled to judgm ent as a

m atter of law.” Neely v. N. Miss. Med. Ctr., Inc. , 9 96 So. 2d 72 6 , 7 2 8

- 2 9 ( M i s s. 2008) (quoting Heigle v. Heigle , 771 So. 2d 341, 345 (Miss. 2000)).
II. Whether t h e Circuit Court erred in failing to grant sum m ary judgm ent in favor o f Defendants w h en Phelps failed to provide any sw orn ex pert testim ony . ¶6. W e consistently have held in cases involving claim s of m e dical m alpractice that the plaintif f m ust prove the f

ollowing elem ents in order to establish a prim a f acie c ase: (1) a duty

e x i s t e d requiring the def endant to conf

orm to a specif

ic standard of conduct f or t h e protection of others against an unreasonable risk of injury ; (2) a f a i lure to conf

orm to the required s tandard occurred; and ( 3) such breach o f duty by the def endant proxim a t ely caused

an injury to the plaintif

f

. Crosthwait v

. S. Health Corp. o

f H ouston, I nc. , 94 So. 3d 1070, 1073 (Miss. 2012) (citations om itted). ¶7. E x p e r t t e s t i mo n y i s e s sential in m edical m alpractice cases “because th e e x p e r t testim o ny dem onstrates how t h e r e q u ired s tandard of care was disregarded, and t he testim ony certif i es that the def

e ndant’s ‘f

ailure was t he proxim ate cause, o r proxim ate contributing
cause’ of the injury .” V

icksburg Healthcare LLC v. Dees , 152 So. 3 d 1171, 1 174 (quoting
Crosthwait , 94 So. 3 d at 1 0 7 3 )

. W h e n a plaintif f f ails t o provide expert testim ony establishing a prim a f

acie case of m edical m alpra c tice, generally , a grant o f sum m ary

4judgm ent is required. Kuiper v. Tarnabine , 20 So. 3d 6 58, 6 61 ( Miss. 2 009) (citing Hutto ,

9 So. 3d at 384). ¶8. In Kuiper , 20 So. 3d at 658, we held that because the plaintif f s f ailed to provide any expert evidence by af

f idavit or otherwise, sum m ary judgm ent p roperly had been granted in
f avor of the def endants. ¶9. Likewise, i n Adrabbo v. Johnson , 220 So. 3 d 952 (Miss. 2 017), w e reversed the trial
court’s d enial of t he d e f

endants’ m otion f

or sum m ary judgm e n t b e c a use the plaintif f had
f ailed to p rovide expert t estim o n y to rebut the m otion, despite having am ple tim e to engage in discovery

. ¶10. In Scales v. Lackey Mem o rial Hospital , the plaintif f alleged that s um m a ry judgm ent

was prem ature due to the lack of discovery and that additional d iscovery would have revealed

a genuine issue of m aterial f act. Scales v. Lackey Mem ’l Hosp. , 988 So. 2d 4 26, 4 29 (Miss.
Ct. App. 2008). The plaintif f supplem ented her a nswer to the expert i nterrogatory acknowledging the identity o f her experts and describing their proposed testim o ny , but she did not s tate t h a t e i t h e r e x p ert would opine that there had been a breach in t he standard of

care. Id. At t he hearing on the m otion f or sum m ary judgm ent, the def endant successf

ully argued that sum m ary judgm e nt w as proper due t o the plaintif f ’s f ailure to produce any sworn testim o ny f

rom an expert witness. Id. at 430. T he Court of Appeals af f irm ed. Id. at 431. ¶11. In reviewing the t rial court’s denial of Def endants’ m otions f

or s um m a r

y judgm ent,

we f ind t hat the t rial court erred b e cause Phelps did not p roduce any sworn expert testim ony establishing the e ssential elem ents of her m edical-m a l practice claim

. P helps had the burden

5to com e f

orth w i t h s w o r n expert testim o ny stating t hat her p hy s i cians had breached the applicable standard of care; s h e f ailed to m eet this burden. See Karpinsky at 88-89. W hile Phelps argues s he retained a me d i c a l expert prior to f iling suit a nd she responded to discovery requests ident i f y i n g h e r expert a nd providing a sum m ary of opinions, she f ailed to produce any

sworn expert testim ony

by af f idavit or otherwise. ¶12. In W

alker v. Skiwski , 5 29 So. 2d 184, 187 ( Miss. 1988), we f o und t hat listing expert witnesses in interrogat o r i es without providing any sworn testim ony of such witnesses was the “f atal def iciency in [ the plaintif

f s’] o pposition t o su mma r y j u d g m ent.” The record is clear that the trial court erred in deny i n g D e f e n d ants’ m o tions f

or sum m ary j udgm ent. W i thout expert testim ony establishing a prima f a c i e case of m edical m alpractice, Phelps

cannot m eet her burden of proof

. Neely , 9 96 So. 2d at 729.
CONCLUSION ¶13. W e f

ind that t h e t r i a l c o u r t e r r e d a n d that Def endants a re entitled to sum m ary judgm ent. The judgm ent of the Hinds County Circuit Court is reversed and rendered. ¶14. REVERSED AND RENDERED.
W A L LER, C .J., RANDOLPH, P.J., KING, COLEMAN, MAX WELL, CH A MBERLIN A ND ISHEE, JJ., CONCUR. K ITCHENS, P.J., NOT PARTICIPATING.

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