                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-IA-00571-SCT

FAWAZ ABDRABBO, M.D. AND HINDS
BEHAVIORAL HEALTH SERVICES

v.

AUDRAY (ANDRES) JOHNSON


DATE OF JUDGMENT:                       03/30/2016
TRIAL JUDGE:                            HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS:                  WHITMAN B. JOHNSON, III
                                        WADE G. MANOR
                                        FELECIA PERKINS
                                        KATRINA SANDIFER BROWN
                                        MICHAEL F. MYERS
COURT FROM WHICH APPEALED:              HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:               MICHAEL F. MYERS
                                        WHITMAN B. JOHNSON, III
                                        WADE G. MANOR
ATTORNEY FOR APPELLEE:                  AUDRAY JOHNSON (PRO SE)
NATURE OF THE CASE:                     CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                            REVERSED AND RENDERED - 05/04/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.

      BEAM, JUSTICE, FOR THE COURT:

¶1.   This medical-malpractice suit comes before the Court on Dr. Fawaz Abdraddo’s and

Hinds Behavioral Health Services’ interlocutory appeal from the Hinds County Circuit

Court’s order denying defendants’ motion for summary judgment. Finding that Plaintiff

Audray Johnson failed to support his medical-malpractice claims with expert testimony on

whether the defendants breached any applicable standard of care owed to Johnson, we
reverse the trial court’s denial of summary judgment and render judgment here in favor of

the defendants.

                       FACTS AND PROCEDURAL HISTORY

       A. COURSE OF PROCEEDINGS

¶2.    Johnson, pro se, filed suit against the defendants on May 13, 2014, claiming he

suffered permanent damage to his kidneys due to lithium treatment he received while under

the psychiatric care of Dr. Abdraddo, who was working under contract for Hinds Behavioral

Health Services. Johnson thereafter filed a motion “to disregard requirement of having a

medical expert” based on Johnson’s desire to invoke the doctrine of res ipsa loquitur1.

Defendants responded to this motion, setting forth that Mississippi law requires expert

testimony in this type of case and the doctrine of res ipsa loquitur does not apply.

¶3.    On October 9, 2014, attorney Felecia Perkins entered an appearance on behalf of

Johnson. A month later, she filed a motion to withdraw as counsel, which the trial court

granted. Johnson has since proceeded pro se.

¶4.    On October 15, 2014, the defendants filed a motion for summary judgment, which was

scheduled to be heard before Hinds County Circuit Court Judge William Gowan on

December 4, 2014.

¶5.    Before the hearing, Johnson filed a motion to recuse Judge Gowan, accusing him of

abusive and rude behavior, and for moving the case along too quickly. Johnson also filed a



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        “The thing speaks for itself.” “Res ipsa loquitur is [a] rule of evidence whereby
negligence of alleged wrongdoer may be inferred from mere fact that accident happened. .
. .” Black’s Law Dictionary 1305 (6th ed. 1990.)

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motion for more time to appoint a medical expert, claiming he had an expert “on standby,”

and listing the name and telephone number of a national expert-witness referral service.

¶6.    Judge Gowan ruled on Johnson’s motion for recusal, stating:

       The undersigned having bent over backwards to explain to the plaintiff in great
       detail the requirements of a medical malpractice case, i.e., the specific
       requirement of a medical expert, and plaintiff having perceived this as being
       “abusive and rude,” the undersigned, so as to avoid any misconceived ideas
       regarding unfairness of the undersigned or the judicial process hereby recuses
       himself from [this] cause of action.

The case thereafter was assigned to Judge Winston Kidd. The defendants reset their motion

for summary judgment for hearing before Judge Kidd on February 19, 2015.

¶7.    Johnson filed no supporting memorandum in response to the summary-judgment

motion, but he filed the affidavit of Dr. Shobhit Negi on February 9, 2015.

¶8.    Defendants filed a rebuttal in support of the summary-judgment motion, contending

that the medical-expert affidavit filed by Johnson did not state that any standard of care had

been breached and it failed to show any causal connection between any actions of the

defendants and the alleged injury.

¶9.    On February 19, Judge Kidd heard arguments from all the parties and stated he would

review the motions and issue a ruling. On April 21, 2015, Judge Kidd entered an order

giving Johnson sixty days to designate a medical expert or his case would be dismissed.

¶10.   On April 27, 2015, Johnson filed a “Designation of Experts,” attaching the same

affidavit from Dr. Negi, filed by Johnson on February 9. Dr. Abdrabbo filed a motion to

strike this designation on May 6, 2015, along with a renewed motion for summary judgment.




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¶11.   Johnson subsequently filed four requests for status hearings on May 8, 2015; August

26, 2015; November 18, 2015; and February 18, 2016.

¶12.   On March 30, 2016, Judge Kidd entered an order, without opinion, denying the

defendants’ motion for summary judgment. The order summarily concluded that genuine

issues of material fact precluded summary judgment.

¶13.   The defendants thereafter petitioned this Court for interlocutory appeal, claiming the

trial court erred in denying their motion for summary judgment when Johnson failed to

support his medical-malpractice claim with expert testimony on breach of standard of care

or causation of Johnson’s alleged injury.

       B. UNDERLYING FACTS

¶14.   Dr. Abdrabbo is a psychiatrist, working under contract with Hinds Behavioral Health

Services. Dr. Abdrabbo began treating Johnson in August 2004 for “schizoaffective

disorder.” Johnson previously had been prescribed and maintained on lithium for the

disorder by a prior treating psychiatrist for approximately ten years. Johnson had a separate

primary-care doctor who monitored and treated Johnson’s other medical conditions.

¶15.   According to Dr. Abdrabbo, for patients initially receiving lithium treatment,

monitoring of kidney function is recommended approximately every six months. But yearly

monitoring is considered reasonable and acceptable for patients who have been successfully

maintained on lithium treatment for some time, as Johnson had been when Dr. Abdrabbo

began treating Johnson. For that reason, Dr. Abdrabbo was monitoring Johnson’s kidney




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function on a yearly basis, along with more frequent monitoring of Johnson’s lithium levels

to make sure they were staying at a therapeutic level.

¶16.   Hinds Behavioral Health System does not have in-house capabilities to conduct the

blood tests necessary to monitor Johnson’s kidney function; thus, the blood tests were

performed by Johnson’s primary-care doctor, Dr. Timothy Quinn, who reported the lab

results back to Dr. Abdrabbo. Johnson’s medical records for the relevant period showed he

had blood drawn in April 2012 and January 2013 to check his kidney function.

¶17.   According to Dr. Abdrabbo, Johnson’s records gave no indiction that Johnson had any

abnormal kidney function in April 2012. At that time, Dr. Quinn noted that Johnson’s lab

results reflected “normal kidney function.” In January 2013, however, Johnson’s lab results

indicated a slight elevation in his creatinine level as well as his lithium level. So Dr.

Abdrabbo instructed the staff at Hinds Behavioral Health Services to contact Johnson and

have him come in to discuss the results.

¶18.   Afterward, Dr. Abdrabbo told Johnson that his creatinine level was 1.7, which was

slightly above the normal range of 0.7 to 1.5. Johnson’s lithium level was 1.5, which also

was slightly above the normal range of 0.6 to 1.2. Dr. Abdrabbo explained to Johnson that

the deviations were so slight they could be due to diet, dehydration or other factors, and were

not necessarily indicative of any problems with his kidneys.

¶19.   Dr. Abdrabbo also told Johnson that he had a glomerular filtration rate (GFR) of 47,

which is not an actual lab value but is a calculation based on other lab values. That

calculation, however, must be adjusted for factors such as race and gender, thus putting



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Johnson’s GFR at 56, just below the normal range, which is 60 and above. According to Dr.

Abdrabbo, a one-time indication of a decreased GFR is not indicative of chronic kidney

disease.

¶20.   Dr. Abdrabbo told Johnson to lower his lithium dosage and have his labs drawn again,

which Johnson did later that month. The subsequent lithium level showed that his lithium

had returned back within the expected therapeutic range of 0.8. Johnson’s creatinine level,

however, had not changed by the time the blood work was done later that same month. But

the level had reduced by the time Johnson’s blood work next was drawn in June 2013, at

which point Johnson’s GFR had tested at a normal level after adjustment for Johnson’s race

and gender.

¶21.   Dr. Abdrabbo next saw Johnson in March 2013 and again in April 2013, at which time

he noted that Johnson’s lithium level was back to its normal baseline. Johnson was

scheduled to see Dr. Abdrabbo two months later, but Johnson never came back to see him.

¶22.   Dr. Abdrabbo supported his motion for summary judgment with Johnson’s medical

records (filed under seal with the Court), as well as Dr. Abdrabbo’s own affidavit regarding

his care and treatment of Johnson. Dr. Abdrabbo also included the affidavits of Dr. Andrew

Bishop and Dr. Wilson Parry. Dr. Bishop is a psychiatrist whose affidavit testimony showed

that Dr. Abdrabbo’s monitoring regime met the appropriate standard of care and that Dr.

Abdrabbo had responded appropriately when the January 2013 lab results indicated slight

elevations of the lithium and creatinine levels.




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¶23.   Dr. Abdrabbo testified, as did Dr. Parry, a specialist in nephrology (the function of the

kidney and diseases of the kidney), that Johnson did not have any irreversible damage to his

kidneys, and never had, as Johnson claims, “kidney failure.” Dr. Parry also explained that

the temporary change in Johnson’s lab values was not attributable to the lithium, but likely

to Johnson’s high blood pressure.

¶24.   Dr. Parry further opined that Johnson’s blood-pressure medicine contains a diuretic

which can add to dehydration, which effectively would raise Johnson’s creatinine level,

resulting in an acute but temporary reduction in GFR. Dr. Parry noted that Johnson’s January

2013 creatinine level of 1.7 and an adjusted GFR of just below 60 was not indicative of past,

present, or future kidney failure.

¶25.   In response to the summary-judgment motion and supporting affidavits, Johnson filed

the affidavit of Dr. Negi, a psychiatrist. From the records provided to Dr. Negi, Dr. Negi

noted that Johnson began receiving psychiatric services at Hinds Behavioral Services in June

1996, and “has been diagnosed with Schizoaffective Disorder, Bipolar type, Hyperlipidemia,

Hypertension and Gout.” Johnson had received lithium treatment for close to twenty years.

Dr. Negi stated that when a patient is on lithium, “the kidney functions should be monitored

at least once every six months to a year.” He added that, “kidney functions may need to be

monitored more closely if a person having high blood pressure is of African American

descent and has Gout.” Dr. Negi concluded his report with the following:

       Forming an opinion regarding Dr. Abdrabbo deviating from the standard of
       care in monitoring Mr. Johnson’s kidney functions while prescribing him
       Lithium can be made after I have reviewed Dr. Abdrabbo’s records on Mr.
       Johnson. . . .

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         ...

         It should be understood that this report consists of opinion based only upon the
         records available to me that have been listed at the beginning of this report.
         This report may be modified as additional information becomes available from
         deposition or other records.

¶26.     Dr. Negi’s affidavit report was never supplemented with any new information or

opinion from Dr. Negi.

                                         DISCUSSION

¶27.     A trial court’s grant or denial of summary judgment is reviewed de novo. Leffler v.

Sharp, 891 So. 2d 152, 156 (Miss. 2004). The moving party is entitled to judgment as a

matter of law, when “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 . . . .” M.R.C.P. 56(c). All the evidence presented must be considered in the light

most favorable to the nonmoving party. Hubbard v. Wansley, 954 So. 2d 951, 956 (Miss.

2007).

¶28.     Unless the matter in issue is within the common knowledge of laymen, Mississippi

law holds that, in order to prevail in a medical-malpractice action, the plaintiff must establish

through expert testimony the standard of acceptable professional practice; that the physician

deviated from that standard of care; and that such deviation was the proximate cause of the

injury alleged. Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346, 1355 (Miss. 1990).

¶29.     As the appellants contend, Johnson’s claims require medical-expert opinion beyond

the scope of common knowledge. Dr. Negi was the only expert Johnson designated to

provide evidence in support of his claims. Dr. Negi’s affidavit report offers no opinion on


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whether or not Dr. Abdrabbo exercised reasonable care in monitoring Johnson’s kidney

function while prescribing him lithium. Thus, insufficient evidence has been produced to

establish a prima facie case of negligence against the defendants.

¶30.   The record further demonstrates that Johnson had more than enough time and

opportunity to engage in any discovery necessary to prosecute his claims. Pro se parties are

held to the same rules of procedure and substantive law as parties represented by counsel.

Dethlefs v. Beaumaison Dev. Corp., 511 So. 2d 112, 118 (Miss. 1987).

¶31.   Accordingly, we find that the defendants are entitled to summary judgment on all

claims against them.

                                     CONCLUSION

¶32.   For these reasons, this Court reverses the trial court’s decision to deny the defendants’

motion for summary judgment and renders judgment here in favor of the defendants.

¶33.   REVERSED AND RENDERED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR.




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