                   IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-IA-00181-SCT

VICKSBURG HEALTHCARE, LLC d/b/a RIVER
REGION HEALTH SYSTEM

v.

CLARA DEES


DATE OF JUDGMENT:                         01/22/2013
TRIAL JUDGE:                              HON. ISADORE W. PATRICK, JR.
TRIAL COURT ATTORNEYS:                    MICHAEL E. WINFIELD
                                          CLIFFORD C. WHITNEY, III
COURT FROM WHICH APPEALED:                WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  CLIFFORD C. WHITNEY, III
                                          R. E. PARKER, JR.
ATTORNEY FOR APPELLEE:                    MICHAEL ELIAS WINFIELD
NATURE OF THE CASE:                       CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                              REVERSED AND RENDERED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   In October 2010, Clara Dees filed a complaint in the Circuit Court of Warren County,

Mississippi, alleging medical negligence, inter alia, against Heritage House Nursing Home

and its employees and against River Region Medical Center and its employees.1 River

Region is owned by Vicksburg Healthcare, LLC. Dees also filed, with her complaint, a



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        It is unclear from Dees’s complaint whether the alleged medical negligence occurred
sometime after October 20, 2008, or sometime after October 20, 2009, as both dates are
stated in the complaint.
certificate of consultation. See Miss. Code Ann. § 11-1-58 (Rev. 2014).2 Dees filed an

amended complaint in January 2011, also accompanied by a certificate. No summonses were

issued until after February 16, 2011, the same date Dees moved the court for an enlargement

of time, which was granted. Dees issued a number of summonses from February 22 to March

3, 2011.

¶2.    In May 2011, an agreed order staying the proceedings and compelling binding

arbitration was entered concerning defendants Heritage House Nursing Home and its

employees. Vicksburg Healthcare 3 moved to set aside the order allowing additional time to

serve process. Vicksburg Healthcare also moved to dismiss and, alternatively, moved for

summary judgment, while also asserting its affirmative defenses and answering the amended

complaint.


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         (1) In any action against a licensed physician, health care provider or health care
practitioner for injuries or wrongful death arising out of the course of medical, surgical or
other professional services where expert testimony is otherwise required by law, the
complaint shall be accompanied by a certificate executed by the attorney for the plaintiff
declaring that:

       (a) The attorney has reviewed the facts of the case and has consulted with at
       least one (1) expert qualified pursuant to the Mississippi Rules of Civil
       Procedure and the Mississippi Rules of Evidence who is qualified to give
       expert testimony as to standard of care or negligence and who the attorney
       reasonably believes is knowledgeable in the relevant issues involved in the
       particular action, and that the attorney has concluded on the basis of such
       review and consultation that there is a reasonable basis for the commencement
       of such action. . . .
Miss. Code Ann. § 11-1-58(1)(a) (Rev. 2014).
       3
       “Vicksburg Healthcare” encompasses all claims against Vicksburg Healthcare, LLC,
which includes River Region Health System and its employees.

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¶3.    In February 2012, Heritage House Nursing Home filed its motion to confirm the

arbitrator’s ruling. The arbitrator’s findings provided that Dees’s counsel, Michael Elias

Winfield, was successfully served a copy of Defendants’ motions. Dees failed to submit a

response, which was to be submitted by February 17, 2011. Dees also failed to request

additional time in which to respond, and did not request a continuance of the scheduled

hearing. The arbitrator found, in part, the following:

       Claimant has designated no expert to identify and articulate the requisite
       standard that was not complied with and no expert to establish that said failure
       was the proximate cause, or a proximate contributing cause, of claimants
       alleged injuries. In this liability case, expert testimony is required for the
       plaintiff to prevail . . . . In Summary, absent expert testimony, claimant cannot
       make out a prima facie case of negligence. . . . Claimant has wholly failed to
       respond to any discovery, propounded no discovery and failed to comply with
       the prior orders.4 Claimant had requested no extension of time and has
       abandoned her claim.

¶4.    By order dated April 2012, the circuit court confirmed the decision of the arbitrator,

dismissing with prejudice all claims against Heritage House Nursing Home and its

employees. Subsequently, a notice of service of discovery requests was filed by Vicksburg

Healthcare in September of 2012. On December 13, 2012, Vicksburg Healthcare filed a

motion to compel discovery and for sanctions.

¶5.    On December 18, 2012, Vicksburg Healthcare filed anew a motion for summary

judgment on the basis that Dees had failed to designate any expert witness and had failed to




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        The arbitrator’s findings state that Dees failed to designate an expert within the time
provided by the August 2011 Administrative Case Management Order and the January 2012 Interim
Management Order. The record does not contain the stated orders.

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provide expert-witness testimony to establish a prima facie case in support of her claim. Dees

responded, designating Dr. Inna Sheyner as her expert witness and requesting that the motion

for summary judgment be denied. No affidavit signed by Sheyner, or any other expert, was

attached.

¶6.    The motion for summary judgment was heard by the circuit court in January 2013.

The circuit court denied the motion based on Dees’s designation. The circuit court granted

Dees an additional sixty days in which to provide a sworn affidavit of the expert’s testimony.

The circuit court provided that Vicksburg Healthcare could renew its motion for summary

judgment once the expert opinion had been submitted.

¶7.    Thereafter, Vicksburg Healthcare petitioned this Court for interlocutory appeal,

raising the following issues:

       I.     Whether the trial court erred in denying summary judgment in a
              medical malpractice case, where the plaintiff failed to provide any
              expert opinions under oath to establish the elements of her claim; and

       II.    Whether the trial court erred in ruling at the hearing that plaintiff could
              have sixty days to produce an expert affidavit, despite Plaintiff’s
              complete failure to comply with the requirements of Rule 56(f) for
              obtaining a continuance.

                                STANDARD OF REVIEW

¶8.    This Court will review the circuit court’s denial of Defendants’ motion for summary

judgment under a de novo standard. Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (Miss.

2009) (citing Wilner v. White, 929 So. 2d 315, 318 (Miss. 2006)). All evidence will be

viewed in the light most favorable to the nonmoving party. Estate of Northrop, 9 So. 3d at


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384 (citing Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993)). If no genuine issue of

material fact exists to be resolved, then summary judgment shall be granted, as a matter of

law, in favor of the movant. Neely v. North Miss. Med. Ctr., Inc., 996 So. 2d 726, 728-29

(Miss. 2008) (citing Heigle v. Heigle, 771 So. 2d 341, 345 (Miss. 2000)).

                                        ANALYSIS

¶9.    Vicksburg Healthcare argues that Mississippi law has established that expert

testimony is required to survive summary judgment in a medical negligence case. This Court

has consistently held that in cases involving claims of medical malpractice, the plaintiff must

prove the following elements in order to establish a prima facie case:

       (1) the existence of a duty by the defendant to conform to a specific standard
       of conduct for the protection of others against an unreasonable risk of injury;
       (2) a failure to conform to the required standard; and (3) an injury to the
       plaintiff proximately caused by the breach of such duty by the defendant.

Crosthwait v. Southern Health Corp. of Houston, Inc., 94 So. 3d 1070, 1073 (Miss. 2012)

(citations omitted). Additionally, the plaintiff must prove that damages have resulted from

the plaintiff’s injury. Kuiper v. Tarnabine, 20 So. 3d 658, 661 (Miss. 2009) (citing Estate

of Northrop, 9 So. 3d at 384) (citations omitted).

¶10.   In medical malpractice cases, expert testimony is essential to proving that a prima

facie case exists, because the expert’s testimony demonstrates how the required standard of

care was disregarded, and the testimony certifies that the defendant’s “failure was the

proximate cause, or proximate contributing cause” of the injury. Crosthwait, 94 So. 3d at

1073 (quoting Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007)).


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¶11.   Further, this Court has been consistent in finding that a plaintiff’s failure to provide

expert testimony establishing a prima facie case of medical negligence generally requires a

grant of summary judgment. Kuiper, 20 So. 3d at 661. See also Crosthwait, 94 So. 3d at

1074; Smith ex rel. Smith v. Gilmore Mem’l Hosp., 952 So. 2d 177, 180 (Miss. 2007);

Neely, 996 So. 2d at 729; Sheffield v. Goodwin, 740 So. 2d 854, 856 (Miss. 1999); Travis

v. Stewart, 680 So. 2d 214, 218 (Miss. 1996); Palmer v. Anderson Infirmary Benevolent

Ass’n, 656 So. 2d 790, 797 (Miss. 1995).

¶12.   Mississippi Rule of Civil Procedure 56(c) provides that the “adverse party” has until

the day before a summary judgment hearing to serve opposing affidavits. Dees did not file

any opposing affidavits or otherwise defend against the summary judgment motion. This

Court has stated, “[s]ummary judgment is mandated where the respondent has failed ‘to make

a showing sufficient to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.’” Kuiper v. Tarnabine, 20 So. 3d

at 661 (citing Smith, 952 So. 2d at 180 (quoting Wilbourn v. Stennett, Wilkinson & Ward,

687 So. 2d 1205, 1214 (Miss. 1996)).

¶13.   Here, the trial court sua sponte granted Dees additional time, although no affidavit

was filed. Rule 56(f) provides:

       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.

Miss. R. Civ. P. 56(f). This Court has established that, for the opposing party to be granted

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additional time, he or she must “present specific facts” explaining why the motion cannot be

opposed at that time. Jones v. Mullen, 100 So. 3d 490, 496 (Miss. Ct. App. 2012) (citing

Owens v. Thomae, 759 So. 2d 1117, 1120 (¶ 12) (Miss. 1999)). It also must be shown what

actions have been taken to discover the information that is needed to defend the motion. Id.

at 497. If additional time is granted, it should be premised on the court’s conclusion that “.

. . the party opposing summary judgment [has] been diligent and [has] acted in good faith.”

Owens, 759 So. 2d at 1121 (citations omitted). The record reveals no compliance with these

requirements.

¶14.   The trial-court judgment will be reversed on a decision to grant additional time if

abuse of discretion is found. Owens, 759 So. 2d at 1120. In this case, the trial court abused

its discretion by giving Dees additional time to obtain an affidavit. A review of the record

exhibits that Dees was not diligent in her efforts to oppose the summary judgment motion.

The trial court previously had dismissed all claims with prejudice against all other defendants

for Dees’s failure to comply with discovery demands, her failure to designate an expert, and

her failure to establish a prima facie case of medical negligence.

¶15.   Thereafter, the record shows that Dees also failed to comply with discovery demands

concerning the litigation between Dees and Vicksburg Healthcare, thus resulting in a motion

to compel discovery and for sanctions, followed by a motion for summary judgment. Dees

did not obtain any affidavits, or otherwise, to oppose the motion for summary judgment and

failed to give any reasons to support her argument that additional time should be granted.

Although Dees had submitted a certificate of consultation with both the original complaint

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and the amended complaint years before the hearing and argued at the hearing that she had

obtained the opinion prior to filing suit, she nonetheless failed to bring forth any opinion by

affidavit or otherwise, at any time before the hearing.

¶16.   The record is clear that the trial court erred in not granting Vicksburg Healthcare’s

motion for summary judgment. Without expert testimony establishing a prima facie case of

medical negligence, no genuine issue of material fact exists. Neely, 996 So. 2d at 729.

                                      CONCLUSION

¶17.   The law of this state mandates a grant of summary judgment in favor of Vicksburg

Healthcare, and the circuit court’s failure to grant such motion was error. Further, the circuit

court abused its discretion by granting Dees additional time to obtain an affidavit.

Accordingly, the judgment of the Circuit Court of Warren County is reversed, and we render

the judgment for the defendants.

¶18.   REVERSED AND RENDERED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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