                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CA-01055-SCT


RUBY ANGELA HUBBARD AND PINKIE J.
HUBBARD, INDIVIDUALLY AND ON BEHALF
OF AND IN HER CAPACITY AS GUARDIAN OF
HER DAUGHTER RUBY ANGELA HUBBARD

v.

BILLY M. WANSLEY, M.D.


DATE OF JUDGMENT:                          01/25/2005
TRIAL JUDGE:                               HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  R. ALLEN SMITH, JR.
                                           LANCE PAUL BRADLEY
ATTORNEYS FOR APPELLEE:                    MARY MARGARET KUHLMANN
                                           GEORGE F. BLOSS, III
NATURE OF THE CASE:                        CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                               AFFIRMED - 04/26/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This medical malpractice case against Dr. Billy M. Wansley is before the Court on

appeal from the grant of summary judgment in his favor in the Harrison County Circuit

Court, Second Judicial District. Hubbard 1 argues that: (1) her expert, Dr. Lynn Stringer, is


       1
       When this case was initiated, the plaintiffs were Ruby Angela Hubbard and Pinkie
J. Hubbard individually and in her capacity as guardian of her daughter, Ruby Angela
Hubbard. While awaiting this appeal, Ruby passed away, and throughout this opinion, the
qualified to testify as to the breaches of the standard of care committed by Dr. Wansley; (2)

Dr. Wansley should be held to the standard of a neurologist or neurosurgeon; (3) Dr.

Wansley’s conduct (that Hubbard alleges rises to the level of malpractice) falls under the

“layman exception”; (4) the trial court erred when it entered final judgment of dismissal with

prejudice in this case because Hubbard had timely designated an additional expert to testify

in this matter pursuant to a prior court order; and (5) Hubbard’s experts, Dr. Stringer and Dr.

Alan Levinstone, created a genuine issue of material fact as to causation in this case. Finding

no error, we affirm.

                                           FACTS

¶2.    On May 5, 1997, Ruby Angela Hubbard was admitted to Biloxi Regional Medical

Center (BRMC), where she was treated for a light stroke and systemic lupus. On May 11,

she was discharged by Dr. Billy Wansley. However, before leaving the hospital Hubbard

complained of a severe headache and fell unconscious, striking her head during the fall. Dr.

Wansley, who was not present at the hospital when Hubbard fell, was telephoned by a nurse.

He instructed the nurse to monitor Hubbard’s blood pressure and level of consciousness for

two hours, and if there was no change, to discharge Hubbard and send her home. She was

discharged and sent home at approximately 2:30 p.m. on May 11, 1997.




plaintiff/appellants will be designated collectively as “Hubbard.”

                                              2
¶3.    At 10:15 that same night, Hubbard’s mother took her to the emergency room at

BRMC where she was examined by an emergency room doctor, Dr. James Mitchell.2 After

a CT scan of Hubbard’s head was taken, Dr. Mitchell diagnosed her with a subarachnoid

hemorrhage.3 Dr. Mitchell consulted with Dr. Wansley by telephone to inform him of the

findings and discuss treatment options, and Hubbard was admitted to the intensive care unit

where her condition was monitored and she was treated. For the first time since treating her

lupus, Dr. Wansley saw Hubbard at approximately 2:30 p.m. on May 12, 1997. He treated

Hubbard in part by administering hydrochlorothiazide and a low volume salt water solution.

¶4.    On May 13, 1997, Dr. Richard Gorman, Hubbard’s consulting neurologist, ordered

that she be sent to the University of South Alabama Medical Center in Mobile, Alabama.4

On May 20, 1997, Hubbard underwent surgery to repair the ruptured aneurysm which had

resulted in her hemorrhage.




       2
       Hubbard’s mother claims that before going to the emergency room, she contacted Dr.
Wansley at home telling him that Hubbard was very nauseated. She claims that Dr. Wansley
ordered medication for Hubbard’s nausea, and when it continued, Hubbard’s mother again
phoned Dr. Wansley at home, and Dr. Wansley told Hubbard’s mother to allow the medicine
time to work. After Hubbard’s nausea continued, Hubbard’s mother took her to the
emergency room.
       3
         A subarachnoid hemorrhage is a somewhat diffuse bleed in the head that is normally
not associated with a fall, which would create a bleed in a specific spot where there might
be a fracture of the skull.
       4
         One of the major points of contention in this case is the time at which Dr. Gorman
was actually consulted. Hubbard claims that part of Dr. Wansley’s negligence was his
failure to emergently contact Dr. Gorman after learning of Hubbard’s condition.

                                             3
                                     PROCEDURAL HISTORY

¶5.       On April 27, 1999, Hubbard filed this action in the Harrison County Circuit Court.5

Three years later, the case was removed to the United States District Court for the Southern

District of Mississippi. After the dismissal of BRMC as a defendant, the case was remanded

to the Harrison County Circuit Court on October 29, 2003.

¶6.       Prior to the remand, Dr. Wansley filed three motions for summary judgment. The first

alleged that Dr. Lynn Stringer, Hubbard’s expert, was not qualified to testify as to the

standard of care in this case. The second alleged that Dr. Wansley’s reliance on a medical

chart regarding notification of a specialist was reasonable. The third alleged that Hubbard

had failed to present evidence sufficient to establish a genuine issue of material fact as to

causation in this case. These motions were carried forward from the federal district court to

the circuit court on remand.

¶7.       On July 20, 2004, the trial court orally granted Dr. Wansley’s first and third motions

for summary judgment.6 Subsequently, Hubbard successfully moved for extra time in which

to designate an expert,7 and on September 3, 2004, designated Dr. Alan Levinstone as her

expert.

          5
        The original defendants to this case were Biloxi H.M.A., Inc., d/b/a Biloxi Regional
Medical Center, Coast Neurology Clinics, L.L.C., Dr. Billy M. Wansley, M.D., Dr. Richard
J. Gorman, D.O., 15 unnamed parties, and 15 unnamed corporations or other businesses. At
the time of this appeal, the only remaining defendant is Dr. Billy Wansley.
          6
              This was not on the record, but the fact that this took place is not in dispute.
          7
        The granting of this motion was an inadvertent mistake on the part of the trial court
and is discussed in detail in part IV, infra.

                                                    4
¶8.    The trial court issued a written Memorandum Opinion and Order on the summary

judgment motions which it had granted orally in July, and entered final judgment with

prejudice as to Dr. Wansley’s first and third motions on January 27, 2005. After denial of

Hubbard’s motion to reconsider, she timely filed her notice of appeal.

                               STANDARD OF REVIEW

¶9.    It is well-settled that this Court applies a de novo standard of review to the grant or

denial of summary judgment by a trial court. Leffler v. Sharp, 891 So. 2d 152, 156 (Miss.

2004). Summary judgment is appropriate when the evidence is considered in the light most

favorable to the nonmoving party, there are no genuine issues of material fact, and the

moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c); Russell v.

Orr, 700 So. 2d 619, 622 (Miss. 1997).

                                        ANALYSIS

       I.     WAS DR. LYNN STRINGER QUALIFIED TO TESTIFY AS TO THE
              APPROPRIATE STANDARD OF CARE OWED BY DR. WANSLEY? 8

¶10.   Dr. Wansley’s motion for summary judgment challenged Hubbard’s use of Dr. Lynn

Stringer as an expert witness on the basis that Dr. Stringer, a board certified neurosurgeon,

was not qualified to offer an opinion as to the standard of care of a physician practicing




       8
        Because they were not specifically designated as part of the record for appeal as
required by MRAP 10(b)(3)(ii), this Court is unable to consider the contents of depositions
taken in this case which were not attached as exhibits to motions. Dr. Stringer’s deposition
was attached as an exhibit to a motion, and is therefore included through Dr. Wansley’s
designation of the record.

                                              5
internal medicine. The trial court agreed with Dr. Wansley’s contention and employed it as

one of the grounds for granting summary judgment.

¶11.   Absent an abuse of discretion, a judge’s determination as to the qualifications of an

expert witness will remain undisturbed on appeal. Palmer v. Biloxi Reg’l Med. Ctr., 564 So.

2d 1346, 1357 (Miss. 1990) (citing Ill. Cent. R.R. Co. v. Benoit Gin Co., 248 So. 2d 426

(Miss. 1971)). As in the present case, the disqualification of the expert in Palmer came at

the summary judgment hearing. There, this Court determined this is inconsequential, stating:

       The law empowers a trial judge to determine whether a proffered expert is
       qualified to testify and does not restrict exercise of this power to the trial stage
       only. That is, a judge has as much power to resolve doubts on qualifications
       of proffered experts during the summary judgment stage as he has during the
       trial stage. And of course, the standard which this Court must apply when
       re v ie w in g a tria l ju d g e ’s d e c isio n to d isq u a lify re m a in s
       unchanged–notwithstanding that the decision was made during the summary
       judgment stage. That is, this Court will determine whether the trial judge
       abused his discretion.

Id.

¶12.   A prima facie case for medical malpractice must be made by proving the following

elements: (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. Drummond v. Buckley, 627 So. 2d 264, 268 (Miss.

1993) (citing Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987)). “When proving these

elements in a medical malpractice suit, expert testimony must be used. Not only must this

expert identify and articulate the requisite standard that was not complied with, the expert

                                                6
must also establish that the failure was the proximate cause, or proximate contributing cause,

of the alleged injuries.” Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992) (citing

Latham v. Hayes, 495 So. 2d 453 (Miss. 1986)).

¶13.   Rule 702 of the Mississippi Rules of Evidence governs the admission of expert

testimony. A witness may testify as an expert to “assist the trier of fact to understand the

evidence or to determine a fact issue” if the witness is “qualified as an expert by knowledge,

skill, experience, training, or education” and “if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to the facts of the case.” M.R.E. 702.

It is generally not required that an expert testifying in a medical malpractice case be of the

same specialty as the doctor about whom the expert is testifying. “‘It is the scope of the

witness’ knowledge and not the artificial classification by title that should govern the

threshold question of admissibility.’” West v. Sanders Clinic for Women, P.A., 661 So. 2d

714, 719 (Miss. 1995). Satisfactory familiarity with the specialty of the defendant doctor is,

however, required in order for an expert to testify as to the standard of care owed to the

plaintiff patient. Id. at 718-19.

¶14.   Dr. Stringer stated in an affidavit that Dr. Wansley should have: (1) gone to the

hospital to see Hubbard on the evening of May 11, 1997, when Hubbard went to the

emergency room;      (2) consulted with a neurologist about Hubbard’s condition;            (3)

administered the medications Decadron and Nimodipine to Hubbard;                 and (4) not

administered hydrochlorothiazide and a low fluid volume of saltwater. Dr. Stringer further

                                              7
stated that Dr. Wansley violated the standard of care owed to Hubbard and the failure to

adhere to that standard contributed to Hubbard’s diminished neurological condition.

¶15.    Hubbard counters that Dr. Stringer is well-qualified to testify as an expert in this case

and it was error to grant summary judgment on the basis that Hubbard did not have an expert

qualified to testify as to the standard of care. Specifically, Hubbard contends that Dr.

Stringer’s training and experience, combined with his familiarity with three treatises on the

treatment of subarachnoid hemorrhages and with treatises in the field of internal medicine,

give Dr. Stringer the knowledge necessary to form an opinion as to the standard of care that

Dr. Wansley owed Hubbard.

¶16.   In its Memorandum Opinion and Order, the trial court pointed out that Dr. Stringer did

not consider himself to be an expert in the field of internal medicine and that he was not

conversant in the medical literature relied upon by those in the field of internal medicine. The

court’s order also stated that Dr. Stringer testified that he had never practiced primary care

medicine and that he had never held medical staff privileges that would entitle him to do so.

Dr. Stringer himself testified that he had not recently read the internal medicine treatises with

which Hubbard claimed he was familiar.

¶17.   The dissent cites the same precedent we cite in making its argument that Dr. Stringer

is qualified to testify in this case. Specifically, the dissent asks if it is not perfectly logical

to allow “a person who is an expert in a subject” to “testify to the relatively mundane features

of that same specialty, such as the standard of care?” (¶55) (Emphasis added). However, the

dissent is either confusing or interchangeably using the terms “subject” and “specialty.” We

                                                8
do not dispute that Dr. Stringer has knowledge in treating the subject, subarachnoid

hemorrhages, as a neurosurgeon. However, our precedent requires familiarity not with a

particular subject, but with a specialty. In this case, that specialty would be internal medicine.

It is illogical to allow a proposed expert to testify as to the standard of care of a specialty with

which he has demonstrated no familiarity.

¶18.   The dissent cites West as authority for this proposition. The dispute in West was

whether an oncologist, Dr. Taylor, could testify to the standard of care that a

gastroenterologist should apply in treating colon cancer. In affirming the trial court’s

exclusion of the testimony, this Court stated, “While Dr. Taylor testified in his deposition that

he had treated patients with recognized clinical signs of colon carcinoma, he did not intimate

that he knew how a gastroenterologist would treat such a patient.” West, 661 So. 2d at 719.

In the present case, although Dr. Stringer testified that he had treated patients with

subarachnoid hemorrhages, he did not intimate that he knew how an internal medicine

practitioner would treat such a patient. The specialty of internal medicine is an independent

field of medicine. We are not saying that it was necessary for Hubbard to proffer an internal

medicine practitioner as her expert, but our precedent requires a plaintiff in a medical

malpractice action to procure an expert familiar with the specialty of the defendant doctor.

¶19.   It is the position of Hubbard and the dissent that Dr. Stringer’s knowledge, skill,

training, education, and experience qualify him to testify as an expert in this case. However,

Dr. Stringer’s knowledge, skill, training, education, and experience are in the area of

neurosurgery. While it is obvious that Dr. Stringer is an experienced and knowledgeable

                                                 9
neurosurgeon and that he has experience in treating subarachnoid hemorrhages as a

neurosurgeon, Hubbard has offered no evidence that Dr. Stringer has any familiarity with the

standard of care that would be required of an internal medicine specialist in treating a

subarachnoid hemorrhage. Therefore, it cannot be said that the trial court abused its

discretion in holding that Dr. Stringer was not qualified to testify as to the standard of an

internal medicine practitioner. Summary judgment was appropriate unless it could be found

that Dr. Wansley should have been held to the standard of a neurosurgeon or neurologist as

argued by Hubbard.

       II.    SHOULD THE TRIAL COURT HAVE HELD DR. WANSLEY TO THE
              STANDARD OF A NEUROSURGEON OR NEUROLOGIST?

¶20.   Hubbard argues that Dr. Wansley should have been held to the standard of a

neurosurgeon or neurologist because he assumed the duties of a neurosurgeon or neurologist

when he treated Hubbard’s subarachnoid hemorrhage and failed to notify the consulting

neurologist, Dr. Richard Gorman, of Hubbard’s medical condition.

¶21.   In West, we “reiterate[d] that a physician may be held to the standard of care of

another specialty other than his own, if the physician assumes the duties of the specialty.” 661

So. 2d at 720 (citing Lewis v. Soriano, 374 So. 2d 829, 831 (Miss. 1979)). In Lewis, this

Court found that the defendant doctor, a specialist in family practice, should have been held

to the standard of an orthopedic surgeon. Lewis was involved in a motorcycle accident and

was examined by Dr. Soriano. The examination revealed that Lewis had “sustained multiple

bruises, lacerations and abrasions, a fractured talus, complicated by posterior dislocation of


                                              10
the talus, and was bordering on shock.” Id. at 830. This Court held that because Dr. Soriano,

a family practitioner, assured Lewis that he could treat the fracture and undertook the

responsibility of treating the fracture, he should be held to the standard of an orthopedic

surgeon.9 Id. at 831.

¶22.   The “heightened standard of care” principle from Lewis was further explained in

Adkins v. Sanders, 871 So. 2d 732 (Miss. 2004). In Adkins, this Court held that it was proper

for the trial court to find that the defendant, an obstetrician/gynecologist, should not be held

to the standard of a rheumatologist:

       Unlike the physician in Lewis, Dr. Sanders did not admit that he assumed
       responsibility as a specialist in another medical discipline, i.e., as [the
       plaintiff’s] rheumatologist. He did not admit that the care that was given was
       inferior to the treatment she could have gotten from a specialist. Dr. Sanders
       did not assure that he could achieve a good result nor did he claim to possess
       the skills necessary to treat her condition which resulted from lupus. In fact,
       Dr. Sanders made significant efforts by referrals to other physicians in an effort
       to determine the nature of [the plaintiffs] complications and the appropriate
       treatments.




       9
         In Lewis, Dr. Soriano argued that he should not be held to the standard of an
orthopedic surgeon, in part, because he had referred Lewis to an orthopedic surgeon.
However, because Dr. Soriano told Lewis that he could treat the injuries, he was “claiming
he possessed the skill necessary to perform the procedure involved,” and therefore the
referral to an orthopedic surgeon was “qualified rather than unequivocal.” Lewis, 374 So.
2d at 831. There is no referral issue in the present case.

                                              11
Adkins, 871 So. 2d at 737.10 The Court found that Dr. Sanders’s knowledge of the plaintiff’s

lupus when he began treating her as an obstetrician during her pregnancy did not cause him

to assume the duties of a rheumatologist. Id. at 740.

¶23.    Although our precedents do not provide a specific test for determining whether a

defendant doctor of one specialty should be held to the standard of another specialty, at least

two common factors should be considered in determining whether a doctor has “assumed the

duties” of another specialty: whether assurances were given by the doctor to the patient; and

whether consultations or referrals to a doctor of another specialty were, or should have been,

made.

¶24.    In this case, there is no claim and no evidence that Dr. Wansley gave any specific

assurances to Hubbard about the treatment of her subarachnoid hemorrhage. The dispute in

this case is whether Dr. Wansley consulted Dr. Gorman, Hubbard’s consulting neurologist,

when she was admitted to the intensive care unit.

¶25.    According to Hubbard, Dr. Gorman was not consulted until “6:00 p.m. on May 12,

1997, some thirty-two (32) hours after [her] fall at Biloxi Regional Medical Center and some

twenty (20) hours after Dr. Wansley received confirmation from the emergency room

physician, Dr. James Mitchell, that [she] was diagnosed with subarachnoid hemorrhage.” Dr.




        10
          Adkins dealt specifically with the denial of a proposed jury instruction as to the
standard of care issue. The proposed instruction was the same one that was given to the jury
in Lewis. Adkins, 871 So. 2d at 737.

                                              12
Gorman’s affidavit specifically states that he had no knowledge of Hubbard’s readmission

to the hospital “until late in the afternoon on 5/12/97.” 11

¶26.   Dr. Wansley claims that Dr. Gorman was notified in the early morning hours on May

12, 1997. On the physician order sheet, the orders given by Dr. Wansley to the physician in

the emergency room, Dr. James Mitchell, included this order: “Notify Dr. Gorman--please

page.” The words “please page” had been stricken through, and the words “notified in the

E.R.” had been written to the side.12 Dr. Wansley claims that it was not his responsibility to

personally inform Dr. Gorman of the situation, and that it was not unreasonable for him to

rely on the note written on the chart, which led him to believe that Dr. Gorman had been

consulted. Dr. Wansley maintains that by ordering the consult with Dr. Gorman, he acted as

a proper internal medicine doctor should have and that he should be held to that standard.

¶27.   The crux of Hubbard’s argument is that Dr. Gorman was not contacted soon enough.

However, Dr. Wansley fulfilled his duty to contact Dr. Gorman emergently by ordering the

consultation through the emergency room, where Hubbard was located at the time. Dr.

Wansley gave the order for Dr. Gorman to be consulted immediately after hearing about

Hubbard’s condition. It is unclear as to whether any follow-up was done by Dr. Wansley to


        11
        Dr. Wansley did move to strike Dr. Gorman’s affidavit. Pointing out that Dr.
Gorman himself was once a defendant in this matter, Dr. Wansley questions the veracity of
Dr. Gorman’s statement. The trial court never ruled on this motion.
        12
         The quality of the copy of the physician order sheet in the record is not perfect.
However, it is clear that the order was written on May 12, 1997. The time under the date
appears to be 0115, military time for 1:15 a.m. There was deposition testimony to this effect
as well. There is no indication of when the “notified in the E.R.” notation was made.

                                               13
determine whether Dr. Gorman had been consulted, and if so, when.13 What is clear is that

he did not undertake to treat Hubbard’s condition on his own to the exclusion of a

neurologist. Dr. Wansley should not have been held to the standard of a neurologist or

neurosurgeon.

       III.    DOES DR. WANSLEY’S ALLEGED MALPRACTICE FALL UNDER
               THE “LAYMAN EXCEPTION,” MAKING IT UNNECESSARY TO
               PRESENT EXPERT TESTIMONY?

¶28.   According to Hubbard, even if Dr. Stringer was found to be unqualified to testify in

this case and Dr. Wansley should not be held to the standard of a neurosurgeon or neurologist,

summary judgment was still inappropriate. She argues that she is not required to present

expert testimony because Dr. Wansley’s conduct falls within the “layman exception.”

¶29.   Generally, a physician’s negligence may be established only through the testimony of

an expert witness, but in an instance “where a layman can observe and understand the

negligence as a matter of common sense and practical experience,” expert testimony is not

necessary. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795 (Miss.

1995) (citing Walker v. Skiwski, 529 So. 2d 184, 187 (Miss. 1988)). “Lay testimony is

sufficient to establish only those things that are purely factual in nature or thought to be in the

common knowledge of laymen.” Drummond v. Buckley, 627 So. 2d 264, 268 (Miss. 1993)




        13
         The deposition of Dr. Mitchell cannot be considered by this Court in making its
decision in this case, and the content of that deposition has not been considered in evaluating
this case. See n.8, supra.

                                                14
(citing Kelley v. Frederic, 573 So. 2d 1385, 1388 (Miss. 1990); Palmer, 564 So. 2d at 1355;

and Walker, 529 So. 2d at 187).

¶30.   The layman’s exception applies to situations of obvious negligence. “For instance, a

layman can understand without expert testimony that ‘the unauthorized and unexplained

leaving of an object inside a patient during surgery is negligence.’” Sheffield v. Goodwin,

740 So. 2d 854, 857 (Miss. 1999) (quoting Coleman v. Rice, 706 So. 2d 696, 698 (Miss.

1997)).

¶31.   Hubbard points to Hammond v. Grissom, 470 So. 2d 1049 (Miss. 1985), as a specific

example of how her situation falls under the layman’s exception. In that case the Court found

that an issue regarding an absence of medical care for two hours did not require expert

testimony as it was within the layman’s exception. Hubbard claims that this is similar to Dr.

Wansley’s absence from the hospital until 2:00 p.m. on May 12, 1997.

The patient in Hammond had fallen and injured her head. Id. at 1050-51. She was taken to

the emergency room, and after x-rays were taken, was placed in a treating room at 2:25 p.m.

At this time, Hammond’s two daughters were with her and she was bleeding profusely from

her right ear, her nose, and the back of her head. The daughters testified that they themselves

began to clean their mother’s wounds with any swabbing material they could find as no

medical treatment was being given by hospital personnel. Hammond’s daughters also found

an orderly to remove Hammond’s dentures so she wouldn’t choke. They had to go to other

rooms to get more materials so that they could clean up Hammond’s continued bleeding, and

they even had to find a bedpan for Hammond’s use. Approximately twenty minutes later, the

                                              15
defendant doctor came into the room with the results of Hammond’s x-rays revealing that she

had suffered a skull fracture and would require the services of a neurosurgeon. The doctor

left, and Hammond remained in the treating room until about 4:10 p.m., when two nurses

began an intravenous drip and then left. At 4:30 p.m., two candy stripers took Hammond to

the intensive care unit, where they arrived at 4:45 p.m. The IV drip was the only medical care

administered to Hammond by hospital personnel in the period between being taken to the

treating room at 2:25 p.m. and being put in the ICU at 4:45 p.m. Upon examination in the

ICU, Hammond was found to be in an irreversible state neurologically, and she died that

night. Id.

¶32.   The absence of Dr. Wansley from the hospital until 2:00 p.m. on May 12, 1997, is not

even remotely comparable to the level of neglect that this Court saw in Hammond. Hubbard

does not claim, nor can she, that she was left without medical care. Further, Hubbard’s claim

that Dr. Wansley’s failure to consult Dr. Gorman brings this case within the layman’s

exception is also without merit. Dr. Wansley, while not present, did give orders over the

phone to the emergency room doctors and nurses who were caring for Hubbard, and those

orders included the consultation of the neurologist, Dr. Gorman. The alleged negligence in

this case does not fall under the layman’s exception.

       IV.    DID THE TRIAL COURT ERR BY ENTERING A FINAL JUDGMENT
              OF DISMISSAL WITH PREJUDICE AFTER HUBBARD HAD
              DESIGNATED ANOTHER EXPERT TO TESTIFY?

¶33.   An admitted mistake made by the trial court led to the following unusual chain of

events. On July 20, 2004, the trial court orally granted Dr. Wansley’s motion for summary

                                             16
judgment in part on the grounds that Dr. Stringer was not qualified to testify as an expert.14

On August 4, 2004, before a written order was entered on the grant of summary judgment,

Hubbard filed a motion for extra time in which to designate an expert. Although this motion

was opposed by Dr. Wansley, partly on the basis that summary judgment had already been

granted, the trial judge signed an order on August 6, 2004, granting Hubbard’s motion for

time extension. Then on September 3, 2004, Hubbard filed a designation of Dr. Levinstone

as her new expert witness.

¶34.   The written memorandum and order of the trial court granting Dr. Wansley’s motion

for summary judgment was entered on December 23, 2004. On January 27, 2005, a final

judgment was entered dismissing with prejudice Hubbard’s claims against Dr. Wansley.

Hubbard filed a motion for reconsideration on February 3, 2005. On February 14, 2005, Dr.

Wansley filed a motion to reconsider in response to the trial court’s order granting Hubbard’s

August 2004 motion for more time to designate an expert.15

¶35.   At a very candid hearing on Hubbard’s motion to reconsider on April 4, 2005, the trial

judge revealed that he had granted Hubbard’s motion for extra time to designate an expert


       14
        It is unclear whether this was a telephonic or in-person hearing with the trial judge.
No record was made of the hearing, but the trial court and the attorneys for both parties
admitted on the record that the oral grant of summary judgment took place.
       15
        Dr. Wansley’s motion is dated February 11, 2004. However, this is obviously a
typo and should read 2005. Though the motion does not specify, the only ground for this
motion would be under Miss. R Civ. P. 60(b)(2). This would be a proper motion and could
have been granted by the trial court. However, as Hubbard correctly points out, this motion
was not made within the six months required by Rule 60(b). The motion for more time was
granted on August 6, 2004, making Dr. Wansley’s motion to reconsider five days late.

                                             17
inadvertently. The judge actually apologized for his mistake and said that he would let the

case “go on up to the Supreme Court.” On April 14, 2005, a judgment of dismissal with

prejudice denying Hubbard’s motion to reconsider was entered.

¶36.   Arguing that she justifiably relied on the trial court’s grant of thirty extra days to

designate an expert, Hubbard cites Franklin v. Franklin, 858 So. 2d 110 (Miss. 2003). In

Franklin, this Court dealt with distribution of attorney’s fees in a wrongful death suit.

Franklin, 858 So. 2d at 112. The original trial judge in Franklin consolidated two separate

wrongful death cases arising from the same events, and issued an order stating that, in the

event of recovery by the two plaintiffs, the money would be divided evenly between them.

Since each of the plaintiffs had independent representation, the order also stated that each of

the plaintiffs’ respective lawyers would be compensated according to their contracts as they

existed at the time of consolidation.

¶37.   On the day before trial in Franklin, the case was settled. The attorney for one of the

plaintiffs claimed all of the attorney fees by entitlement because his wrongful death suit had

been filed first. The original trial judge recused himself, and the newly appointed judge

vacated the order dividing the attorney fees and awarded all to the initial claimant. The

attorneys for the other plaintiff appealed.

¶38.   This Court took a number of factors into consideration in deciding to overturn the new

judge’s decision and to reinstate the original order. The Court did find, as Hubbard argues

in this case, justifiable reliance on the original order. Id. at 122. However, there are major

differences between the situation in Franklin and the situation in the present case. In

                                              18
Franklin, the attorney’s who relied on the original order, had worked on their case for more

than a year and a half. Id. at 112. Also, the Court agreed that the original order: (1)

protected the clients by letting them choose their attorneys, (2) was fair to both sides, (3) was

reasonable, (4) followed the wrongful death statute, and (5) contemplated that all attorneys

would work together for the benefit of the plaintiffs. Id. Much more was at play in Franklin

than mere justifiable reliance by the attorneys. The second order not only reaches an

inequitable result; it penalizes heirs who want their own lawyer to represent them and are

willing to pay them from their own recovery.” Id. at 123.

¶39.   Hubbard also cites Thompson v. Patino, 784 So. 2d 220 (Miss. 2001), in support of

her contention that the order granting thirty extra days to designate an expert should stand.16

In Thompson, this Court reversed a trial court’s exclusion of an expert affidavit which

resulted in the dismissal of the plaintiff’s case. However, the facts in Thompson are easily

distinguishable from the facts in this case. In Thompson, the exclusion of the expert

testimony was a sanction in response to a discovery violation. Thompson, 784 So. 2d at 221.

Here, Dr. Stringer was found to be unqualified to testify as to the standard of care. The

disqualification of Dr. Stringer was not a “punishment” for any violation on Hubbard’s part.

The trial judge merely looked at the facts presented to him and ruled that Dr. Stringer was not

qualified under the law to testify in this case.




       16
            This case was also cited in Hubbard’s motion for extra time.

                                               19
¶40.   “Any order signed during the course of the proceeding is not final and can be changed

during the course of the action and prior to a final judgment.” Franklin, 858 So. 2d at 121.

In the present case, final judgment had not been entered when the trial court mistakenly

granted Hubbard’s thirty-day motion, nor had it been granted when the trial court entered the

written Memorandum Opinion and Order granting summary judgment in favor of Dr.

Wansley. In effect, the trial court revoked its order granting Hubbard thirty extra days to

designate an expert when it entered the written Memorandum Opinion and Order granting

summary judgment.

¶41.   Whether it was “justifiable” for Hubbard to rely on the trial court’s order granting the

extra time to designate an expert is the crucial question. Admittedly, Hubbard knew that

summary judgment had already been granted. It would be reasonable to conclude that the

trial court’s granting of the motion for extra time was, at best, questionable. However, even

if Hubbard did honestly believe that the trial court had decided to reverse its grant of

summary judgment to Dr. Wansley, the justifiable reliance, and certainly the prejudice, does

not rise to the level that was seen in Franklin. All Hubbard stood to lose by relying on the

trial court’s order was the expenses of obtaining a new expert, and that does not justify

depriving Dr. Wansley of the summary judgment granted him simply because of an obvious

and admitted mistake of the trial court. This issue has no merit.

       V.     DID THE TRIAL COURT ERR IN FINDING THAT HUBBARD
              FAILED TO ESTABLISH CAUSATION?




                                              20
¶42.   The trial court’s second ground for granting Dr. Wansley’s motion for summary

judgment was that Hubbard had failed to establish a causal link between her injuries and Dr.

Wansley’s alleged negligence. In a medical malpractice case, as in all claims for negligence,

causation must be proven in order to establish a prima facie case. Drummond, 627 So. 2d

at 268. Finding that Hubbard had failed to establish a prima facie case, the trial court granted

Dr. Wansley’s motion for summary judgment. The trial court found, that Hubbard’s proposed

causal link between Dr. Wansley’s actions and Hubbard’s injuries amounted to nothing more

than a claim for diminishment of a chance of recovery. This Court has concluded “that

Mississippi law does not permit recovery of damages because of mere diminishment of the

‘chance of recovery.’ Recovery is allowed only when the failure of the physician to render

the required level of care results in the loss of a reasonable probability of substantial

improvement of the plaintiff’s condition.” Ladner v. Campbell, 515 So. 2d 882, 888-89

(Miss. 1987) (citing Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985)). The Ladner

Court went on to say that Clayton put Mississippi in line with those jurisdictions which

require that a plaintiff show that “proper treatment would have provided the patient ‘with a

greater than fifty (50) percent chance of a better result than was in fact obtained.’” Ladner,

515 So. 2d at 889 (citing 54 A.L.R.4th 10 § 2[a]). Clayton “rejected the notion that a mere

‘better result absent malpractice’ would meet the requirements of causal connection.” Id.

¶43.   In some cases, the causal link between the plaintiff’s injuries, or deteriorated state, and

the defendant doctor’s alleged negligence is easily proven. One such case is Hammond v.

Grissom, 470 So. 2d 1049, where Hammond, after suffering severe injuries, was left without

                                               21
any treatment at all until she had deteriorated to the point where recovery was hopeless.

Expert testimony helped to show that the inaction of the medical personnel contributed

substantially to Hammond’s deterioration and eventual death.            “The testimony of the

pathologist suggests that the continuous intracranial bleeding unchecked for a number of

hours was a major factor causing death.” Hammond, 470 So. 2d at 1054.

¶44.   The case of Hardy v. Brantley, 471 So. 2d 358 (Miss. 1985), is another example of an

expert testifying as to the actions of a doctor resulting in the deterioration of a patient’s

condition. There, the defendant doctor failed to diagnose a perforated duodenal ulcer. Id. at

360-61. Expert testimony revealed that a perforated duodenal ulcer is very rarely a fatal

condition and that it is actually easily diagnosed and treated. Id. at 361. If it had not been

for the misdiagnosis by the defendant doctor, the patient would have most likely survived.

¶45.   In the present case, Dr. Stringer spoke to the issue of causation in two separate

affidavits, concluding that the failure to properly test, examine, treat, or seek proper treatment

by the attending physicians, nurses, and hospital personnel at Biloxi Regional Medical Center

that were involved in the care of Ms. Hubbard from 5/11/97 to 5/13/97 caused, contributed

to cause, or was a substantial factor in causing Ms. Hubbard to have medical complications.

He specifically stated, “[I]n my opinion, Ms. Hubbard was deprived the opportunity of full

recovery after her fall because of lack of treatment.” (Emphasis added).

¶46.   In a deposition given on April 14, 2003, Dr. Stringer answered several questions

regarding whether Dr. Wansley’s actions caused Hubbard’s condition to deteriorate:




                                               22
Q. Now, we’re probably going to have a lot more questions on this, but I’m
trying to get these things out because Mr. Bloss has a number of questions to
ask as well. But when you went through your categories of things that should
have been done in the emergency room because of this emergent subarachnoid
hemorrhage that you alleged was not appropriately treated, what do you claim
was the consequence of that, that even if it had occurred, her outcome would
be different?

A. That’s a great question. She was not given–the patient was not given the
optimum medical care for the treatment of subarachnoid hemorrhage and did
suffer delayed consequences of that. Patients–I mean, she could have had all
of this occur–she could have had all of this occur had all of this been done, but
we do know from the literature and from experience that you can reduce the
risk of significant morbidity and mortality[17 ] with aggressive emergency care
of a subarachnoid hemorrhage, that is, medical care.

Q. So, in essence, what you’re saying is she was denied a chance at recovery,
a chance–

A. A chance to it.

Q. –a chance of a better recovery.

A. Yes.

Q. Are you able to tell us or at the trial of this case tell a jury what would be
the difference in her today had she received what you felt she should have
received in the emergency room versus how she is now?

A. No.

Q. Why not?

A. Because, as I just testified, this could have happened with optimum
medical care. I’m saying “this” being her current neurological picture.




17
     Ruby Angela Hubbard was still alive at the time of this deposition.

                                       23
(Emphasis added). Later in the deposition, Dr. Stringer cast further doubt on the issue of

causation in this case:

       Q. In terms of a reasonable medical probability can you in good faith say that
       there would have been a substantial improvement in her condition?

       A. I think that would be extremely difficult to answer. I mean, I’ve already
       testified to the fact that it would–that she was not given that opportunity. And
       so by not being given an opportunity, I guess we’ll never know.

(Emphasis added). Dr. Stringer’s deposition leaves in doubt whether Hubbard would have

been any better off if she had received the “optimal” medical care which Dr. Stringer claims

was not provided.

¶47.   After this deposition, Dr. Stringer gave one more affidavit on August 18, 2003. The

major difference in this affidavit and Dr. Stringer’s previous affidavits is that this affidavit

contained the “magical” language: “[I]t is my opinion that had Ruby Hubbard been treated

properly by Dr. Wansley, or if Dr. Wansley had notified appropriate personnel, it is my

opinion that Ruby Hubbard would have had a greater than fifty percent chance of reduced

neurological injury.”

¶48.   However, Dr. Stringer’s assertion that Hubbard would have had a fifty percent greater

chance of recovery is given with no real facts to back it up. “The ‘party opposing the motion

[for summary judgment] must by affidavit or otherwise set forth specific facts showing that

there are indeed issues for trial.’” Drummond, 627 So. 2d at 267 (quoting Palmer, 564 So.

2d at 1356) (Emphasis added). The language of Dr. Stringer’s affidavit is almost wholly

conclusory on the issue of causation and gives very little in the way of specific facts and


                                              24
medical analysis to substantiate the claim that Hubbard had a greater than fifty percent

chance of substantial recovery if she had received the “optimal care” of which Dr. Stringer

spoke. This Court has shown its disapproval of such affidavits in the past. Walker, 529 So.

2d at 187 n.2 (stating that affidavits which are “almost wholly conclusory” are “less than

satisfactory”). In addition to the language of the affidavit being conclusory, it also seems to

be an attempt to cure Dr. Stringer’s contradictory deposition testimony.

¶49.   Hubbard also claims that Dr. Alan Levinstone, Hubbard’s expert who was designated

in accordance with the grant of thirty extra days to designate an expert, has created a genuine

issue of material fact in this case. However, Hubbard has provided no sworn testimony from

Dr. Levinstone. In order to create an genuine issue of material fact, there must be presented,

by affidavit or otherwise, a sworn statement made upon personal knowledge that shows that

the party providing the evidence is competent to testify. Drummond, 627 So. 2d at 267-68.

¶50.   Taking into consideration all of the evidence that was before the trial court in this

case, Hubbard did not present evidence sufficient to create a genuine issue of material fact

as to causation. Therefore, summary judgment was proper on the issue of causation, as

Hubbard had not established a prima facie case.

                                       CONCLUSION

¶51.   We affirm the trial court’s grant of summary judgment in favor of Dr. Wansley. The

trial court properly found that: Dr. Stringer was not qualified to testify as to the standard of

care of an internist; the alleged negligence of Dr. Wansley did not fall under the layman’s

exception; the grant of thirty extra days in which Hubbard could designate an expert was an

                                              25
inadvertent mistake on the part of the trial court and did not result in reliance sufficient to

deny Dr. Wansley the summary judgment which he had already been granted; and Hubbard

did not present evidence sufficient to create a genuine issue of material fact as to causation

in this case.

¶52.   AFFIRMED.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY EASLEY AND GRAVES, JJ.


       DIAZ, JUSTICE, DISSENTING:

¶53.   Because the majority fails to apply our medical malpractice cases regarding the

standard of care, and effectively overrules our prior case law without reasoning or citation,

I must respectfully dissent.

¶54.   The majority states, without the benefit of citation, that “[w]hile it is obvious that Dr.

Stringer [the expert for the plaintiffs] is a very experienced and knowledgeable neurosurgeon

and that he has experience in treating subarachnoid hemorrhages as a neurosurgeon, Hubbard

has offered no evidence that Dr. Stringer has any familiarity with the standard of care that

would be required of an internal medicine specialist in treating a subarachnoid hemorrhage.”

Maj. Op. at ¶ 19. Thus, in one sentence, the majority somehow concludes that Dr. Stringer

is a well-qualified neurosurgeon with a particular specialty, yet somehow cannot speak to the

standard of care for that very same area in which he is expert.




                                              26
¶55.   This strains common sense; for is it not perfectly logical that a person who is an expert

in a subject can also testify to the relatively mundane features of that same specialty, such as

the standard of care? It also departs dramatically from our prior case law. In three prior

cases we have addressed this exact same scenario and rejected the majority’s reasoning. The

majority states that “it cannot be said that the trial court abused its discretion in holding that

Dr. Stringer was not qualified to testify as to the standard of an internal medicine

practitioner,” and offers that “our precedent requires familiarity not with a particular

‘subject,’ but with a specialty.” Again, no citation is offered; indeed, our precedent states the

exact opposite, as “[t]he general rule as to expert testimony in medical malpractice actions

is that ‘a specialist in a particular branch within a profession will not be required.’” Brown

v. Mladineo, 504 So. 2d 1201, 1202 (Miss. 1987) (quoting C. McCormick, Evidence, § 13

(3d ed. 1984) (emphasis added)); see also West v. Sanders Clinic for Women, P.A., 661 So.

2d 714, 718 (Miss. 1995); Sheffield v. Goodwin, 740 So. 2d 854, 857 (Miss. 1999) (“We

have often reiterated the general rule that ‘a specialist in a particular branch within a

profession will not be required.’”) (citing Brown and West).

¶56.   Rather, “[m]ost courts,” including our own, “allow a doctor to testify if they are

satisfied of his familiarity with the standards of a specialty, though he may not practice the

specialty himself.” Id.; West, 661 So. 2d at 718-19. In Brown, we adopted the reasoning that

“it is the scope of the witness’ knowledge and not the artificial classification by title that

should govern the threshold question of admissibility.” Id. (internal quotations and citation

omitted); West, 661 So. 2d at 719; see also Sheffield v. Goodwin, 740 So. 2d 854, 857 (Miss.

                                               27
1999); Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 4:1, at 48 (2002)

(“a physician in one specialty can testify as to the standard of care in another specialty,

provided he is familiar with the standards of that other specialty”) (footnote omitted). As one

commentator has stated regarding Brown, “it was not the expert’s title but his knowledge

which qualified him to testify.”      David L. Merideth, The Medical Expert Witness in

Mississippi: Outgunning the Opposition, 64 Miss. L.J. 85, 115 (1994) (emphasis added).

¶57.   In distinguishing prior case law, we went on to note that “[i]t was not our intent to

adopt a uniquely restrictive standard by holding that only a specialist can testify about the

standards of his own specialty.” Brown, 504 So. 2d at 1203 (emphasis in original); West, 661

So. 2d at 719. Yet even by that harsh standard, which is not our rule and which we have

explicitly rejected on two occasions, Dr. Stringer would have survived qualification, as he

is a specialist in that branch of neurosurgery that treats subarachnoid hemorrhages.

¶58.   As our Court of Appeals aptly stated, “[w]hether any doctor may testify to a particular

matter depends upon his knowledge, training, experience, and the like, and, while an expert’s

testimony will be limited to his or her demonstrated area of expertise, there is nothing in our

law that prevents [a] specialist . . . from having expertise in general hospital procedures as

well as another speciality or area.” Partin v. North Miss. Med. Ctr., Inc., 929 So. 2d 924,

930 (Miss. Ct. App. 2005).

¶59.   According to both our well-settled precedent and common sense, Dr. Stringer is

qualified to testify to the standard of care in this case. Accordingly, I would reverse the order

of the trial court granting summary judgment and allow him to testify.

                                               28
EASLEY AND GRAVES, JJ., JOIN THIS OPINION.




                           29
