BRIEF OF APPELLANT. IN THE SUPREME COURT OF MISSISSIPPI CASE NO. No IA VICKSBURG HEALTHCARE, LLC d/b/a RIVER REGION HEALTH SYSTEM VS.

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1 E-Filed Document Oct :56: IA Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI CASE NO. No IA VICKSBURG HEALTHCARE, LLC d/b/a RIVER REGION HEALTH SYSTEM APPELLANT VS. CLARA DEES APPELLEE Appeal from the Circuit Court of Warren County BRIEF OF APPELLANT Oral Argument Not Requested R. E. Parker, Jr., MSB # 4011 Clifford C. Whitney III, MSB #10273 VARNER, PARKER & SESSUMS, P.A Jackson Street Post Office Box 1237 Vicksburg, Mississippi Telephone: Facsimile:

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following persons have an interest in the outcome of this case: 1. Clara Dees 2. Michael E. Winfield, Esquire Winfield & Moran 1129 Openwood Street Post Office Box 1448 Vicksburg, Mississippi Vicksburg Healthcare, LLC d/b/a River Region Health System 2100 Hwy 61 North Vicksburg, Mississippi Community Health Systems, Inc Meridian Blvd. Franklin, Tennessee R. E. Parker, Jr. Clifford C. Whitney III VARNER, PARKER & SESSUMS, P.A Jackson Street Post Office Box 1237 Vicksburg, Mississippi Respectfully submitted, VICKSBURG HEALTHCARE, LLC D/B/A RIVER REGION HEALTH SYSTEM BY: /s/ Clifford C. Whitney III R. E. Parker, Jr., MSB # 4011 Clifford C. Whitney III, MSB #

3 TABLE OF CONTENTS TABLE OF AUTHORITIES...4 STATEMENT OF ISSUES...5 STATEMENT OF THE CASE...5 A. Nature of Case, Course of Proceedings and Disposition Below....5 B. Statement of Facts...6 SUMMARY OF ARGUMENT...7 ARGUMENT...8 A. Standard of Review...8 B. Issues for Review The Trial Court Erred in Denying Summary Judgment, Where the Plaintiff Failed to Provide Any Expert Opinions under Oath to Establish the Elements of Her Claim The Trial Court Erred in Allowing the Plaintiff Sixty Days to Produce an Expert Affidavit, Despite Plaintiff s Failure to Comply with the Requirements of Rule 56(f)....9 CONCLUSION...12 CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES Windham v. Latco of Mississippi, Inc., 972 So.2d 608, 610 (Miss. 2008)...8 Indemnity Ins. Co. of North America v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss. 2012)... 8, 10, 11 Crosthwait v. S. Health Corp. of Houston, Inc., 94 So. 3d 1070, 1074 (Miss. 2012)...8 Johnson v. Pace, 2012-CA SCT, 2013 WL (Miss. Sept. 26, 2013)...8 Kuiper v. Tarnabine, 20 So.3d 658, 660 (Miss. 2009)...8, 9 City of Jackson v. Shavers, 97 So. 3d 686, 691 (Miss. 2012)...9 Jones v. Mullen, 100 So.3d 490, 496 (Miss. App. 2012)...11 Miss. R. Civ. Proc , 6, 7, 9, 10, 11, 12 4

5 STATEMENT OF ISSUES 1. 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. 2. 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. STATEMENT OF THE CASE A. Nature of Case, Course of Proceedings and Disposition Below. This is a hospital/nursing home negligence case filed on October 20, 2010 in the Circuit Court of Warren County. The original defendants were Heritage House nursing home and its staff members, as well as River Region Medical Center ( River Region ) and its staff. River Region is owned by the Defendant and Appellant, Vicksburg Healthcare, LLC ( VHC ). Plaintiff seeks to recover for her alleged pressure or bed sores incurred while under the care of River Region and/or Heritage House. The action against the nursing home and its staff went to arbitration, and the arbitrator dismissed the claims by a Final Award dated February 20, 2012, as confirmed by the trial court by an Order Confirming Final Award Issued by Arbitrator dated April 10, 2012 (Record Excerpts [ E ], 2). As a result, VHC is the only remaining defendant. On December 17, 2012, VHC filed a Motion for Summary Judgment (E. 3) based on the fact that Ms. Dees does not have an medical expert or a sworn affidavit from a medical expert, as is necessary to defeat summary judgment in a medical malpractice case. Plaintiff s Response of December 28, 2012 (E. 4) consisted of two sentences stating that Plaintiff designates, Dr. Inna 5

6 Sheyner - Geriatrician as her expert witness. Wherefore premises considered defendants motion for summary judgment must be denied. The trial court held a hearing on VHC s Motion for Summary Judgment on January 16, At the hearing, the trial court denied summary judgment despite the fact that Plaintiff s counsel had never produced an expert affidavit establishing a prime facie case of medical negligence. Instead, the court sua sponte granted Plaintiff an additional sixty days to produce an expert affidavit, even though counsel opposite had not filed a motion and affidavit under Miss. R. Civ. Proc. 56(f) requesting the additional time. Circuit Judge Patrick entered an Order (E. 5) on January 24, 2013 to effectuate these rulings. VHC filed a timely Petition for Interlocutory Appeal, which this Court granted on May 8, B. Statement of Facts. The Amended Complaint in this case (E. 6) alleges that Clara Dees was admitted to River Region for knee surgery on October 20, 2008, where she purportedly developed a pressure sore(s) (decubitus ulcer) due to the negligence of the River Region staff. The ulcer(s) supposedly got worse at the hospital due to improper care and treatment of the wound. According to the Amended Complaint, Ms. Dees was discharged from River Region to Heritage Manor Nursing Home for rehabilitation, where they also allegedly failed to properly care for the pressure sore(s). This case had been pending for over two years without Ms. Dees designating an expert medical witness to support her claims against VHC. Only after VHC moved for summary judgment based on Plaintiff s lack of an expert did her counsel even mention the name of a medical witness. At that point, he disclosed the name of Dr. Inna Sheyner as an expert, without providing a single opinion by Dr. Sheyner, let alone an affidavit under oath. Counsel never explained why he could not produce an affidavit during the nineteen days that intervened between his Response and the 6

7 hearing on the motion for summary judgment. Neither did he file a motion and affidavit under Rule 56(f) providing a valid reason why he needed more time to obtain an affidavit from Dr. Sheyner. At the summary judgment hearing, Ms. Dees counsel again failed to offer a sworn affidavit or other testimony from Dr. Sheyner or any other expert to establish the elements of his case. 1 Plaintiff s counsel did not explain why he could not provide any expert opinions under oath 2-1/2 years after filing this case and nineteen days after listing the name of the expert. Instead, he simply argued (erroneously) that, because there was no trial date or expert disclosure deadline, he did not need to have an expert affidavit to prevent summary judgment. Judge Patrick merely denied the summary judgment motion without explanation and, on his own initiative, gave Plaintiff another 60 days to obtain an expert affidavit. Hearing Trans., pp (E. 7). SUMMARY OF ARGUMENT 1. A plaintiff in a medical malpractice case cannot defeat summary judgment without producing an affidavit or other sworn testimony from a medical expert to establish the required elements of her case. Because Ms. Dees failed to produce any expert testimony, the trial court should have granted summary judgment, and its failure to do so warrants a reversal and rendering of judgment in VHC s favor. 2. The trial court s sua sponte granting of sixty days to Plaintiff to obtain an expert affidavit violated Miss. Rule Civ. Proc. 56(e), which requires that a party who needs more time to obtain evidence to counter a motion for summary judgment must show good cause for the extension. Here, Ms. Dees did not offer any justification for the sixty day extension granted 1 Of course, under Miss. R. Civ. Proc. 56(c), any affidavit would have to have been filed at least by the day prior to the hearing. 7

8 by the trial court, which in fact Plaintiff s counsel did not even request. This error provides another reason to reverse and render. A. Standard of Review. ARGUMENT This Court applies a de novo standard of review to the grant of a motion for summary judgment. Windham v. Latco of Mississippi, Inc., 972 So.2d 608, 610 (Miss. 2008). A trial court s grant or denial of motion for continuance to conduct additional discovery to oppose summary judgment is reviewed for abuse of discretion. Indemnity Ins. Co. of North America v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss. 2012). B. Issues for Review. 1. The Trial Court Erred in Denying Summary Judgment, Where the Plaintiff Failed to Provide Any Expert Opinions under Oath to Establish the Elements of Her Claim. This Court has reiterated time and again that, to survive summary judgment in a medical negligence case, a plaintiff must present expert testimony as to the applicable standard of care, breach thereof, and proximate causation. Crosthwait v. S. Health Corp. of Houston, Inc., 94 So. 3d 1070, 1074 (Miss. 2012). The plaintiff carries the burden of proof at trial and, thus, the burden of production on summary judgment. Johnson v. Pace, 2012-CA SCT, 2013 WL (Miss. Sept. 26, 2013). The mere fact that there is no trial date or expert deadline does not relieve the plaintiff of this burden when a summary judgment motion is filed. Id. The present case is very similar to another one out of the Circuit Court of Warren County also involving River Region. Kuiper v. Tarnabine, 20 So.3d 658, 660 (Miss. 2009). There, this Court granted an interlocutory appeal and reversed and rendered judgment for River Region. Just as here, the plaintiffs in Kuiper had failed to respond to the hospital s motion for summary judgment 8

9 with sworn expert testimony establishing the elements of their medical negligence case. Nevertheless, the trial court denied summary judgment. This Court held that because the Tarnabines failed to provide any evidence, expert or otherwise, in response to the defendants motion for summary judgment, it was error for the trial court to deny it. 20 So.3d at 662. Just as in Tarnabine, Ms. Dees counsel in this case offered none of the evidence, expert or otherwise, required to survive summary judgment. In the absence of a sworn statement from the expert, assertions in a party s brief are insufficient to defeat summary judgment. City of Jackson v. Shavers, 97 So. 3d 686, 691 (Miss. 2012). Counsel s listing in his Response the name of a physician/expert without any opinions does not even qualify as assertions in a party s brief. Miss. R. Civ. Proc. 56(e) provides that, if the plaintiff fails to present sworn evidence creating issues of fact, summary judgment shall be entered against her. Therefore, the trial court erred in denying VHC s motion, and this Court should now reverse and render. 2. The Trial Court Erred in Allowing the Plaintiff Sixty Days to Produce an Expert Affidavit, Despite Plaintiff s Failure to Comply with the Requirements of Rule 56(f). Under Miss. R. Civ. Proc. 56(c), the adverse party prior to the day of the hearing may serve opposing affidavits. (Emphasis added.) Rule 56(e) states that when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.) In other words, Ms. Dees was required to present sworn testimony creating jury issues or face mandatory dismissal. 9

10 The trial court s sua sponte decision at the hearing to allow Ms. Dees an additional sixty days to produce an expert affidavit finds no support in the law. Ms. Dees counsel never requested any extension of time to obtain an affidavit nor did he supply any reason by affidavit or otherwise to Judge Patrick as to why he could not produce an expert affidavit in time to oppose summary judgment. Rule 56(f) provides very specific grounds for when a party may obtain additional time to file affidavits or sworn testimony, as follows: (f) When Affidavits Are Unavailable. 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. Thus, on its face, a party who seeks more time to file opposing affidavits to defeat a motion for summary judgment must demonstrate by affidavit the reasons why he was unable to obtain the opposing affidavits in time. Under Rule 56(c), such an affidavit has to be filed by no later than the day before the summary judgment hearing. Only then does the trial court have the discretion to give the opposing party more time to obtain the required material. Very recently, this Court considered what is required of a party opposing summary judgment to obtain a continuance under Rule 56(f). In the Indemnity Ins. v. Guidant Mut. case cited above, the Court held that Rule 56(f) is not designed to protect the litigants who are lazy or dilatory. Rather, the party invoking Rule 56(f) must show what steps have been taken to obtain access to the information. 99 So.3d at 148. To succeed on a Rule 56(f) motion for continuance, the moving party is required to provide specific reasons as to why it cannot oppose the summary-judgment motion without additional discovery and specifically demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant s showing of the absence of a genuine issue of fact. 99 So.3d at (citation omitted). 10

11 The Supreme Court emphasized that Rule 56(f) is not meant to be used as a last-ditch effort to obtain information that a party should have obtained previously. 99 So.3d at 149. In contrast to this case, the opponent of summary judgment in Indemnity Ins. in fact presented an affidavit to the trial court. It was just that the affidavit was insufficient to support the granting of a Rule 56(f) continuance. The reasons given in the affidavit did not demonstrate why the appellant could not have obtained the information it needed prior to the hearing on the summary judgment motion. Therefore, the Supreme Court affirmed the denial of the additional time and affirmed the grant of summary judgment. 99 So.3d at In Jones v. Mullen, 100 So.3d 490, 496 (Miss. App. 2012) a case very analogous to the present one the Mississippi Court of Appeals dealt with the granting of more time to obtain sworn testimony to oppose summary judgment. Similar to the instant case, the action involved in Jones had been pending for nearly three years. At the summary judgment hearing, the plaintiffs argued that they needed still more time to depose a key witness. In affirming summary judgment for the defendant, the Court of Appeals held that the plaintiffs should have filed a motion under Rule 56(f) as to why they needed more time and demonstrated the reasons why the continuance was necessary. 100 So.3d at 496. Specifically, the Court stated as follows: If the plaintiffs needed more time for discovery to prove malice, they could have filed a motion under Mississippi Rule of Civil Procedure 56(f). Then, the plaintiffs would have had to present specific facts as to why they could not oppose the motion for summary judgment. Additionally, the plaintiffs would have had to specifically demonstrate how postponement of a ruling on the motion would enable them to rebut Mullen s showing of an absence of a genuine issue of material fact. However, the plaintiffs filed no motions and no affidavits showing that additional discovery was needed. Id. (citations omitted). 11

12 Clara Dees filed no motions or affidavits in the present case seeking more time under Rule 56(f). Moreover, she never offered any reason why she could not produce an affidavit from her expert, Dr. Sheyner, prior to the summary judgment hearing. If she had an expert and was able to name the expert as she did nineteen days before the hearing as part of her summary judgment Response, what possible reason could exist for failing to provide the opinions themselves, under oath? It seems clear that we are quite frankly dealing with pure delay and last-ditch tactics of the sort condemned by this Court in Indemnity Ins. v. Guidant Mut. To this day, there is no basis to know whether Dr. Sheyner even has any opinions against River Region s treatment of this patient. Therefore, the trial court erred in allowing Ms. Dees sixty extra days to produce an expert affidavit, and the Court should reverse this clear abuse of discretion. CONCLUSION The present litigation should have been terminated on January 16, 2013, when the Plaintiff failed to present any sworn expert opinions to support her medical negligence claim, and this Court should end the case now to prevent further expense to VHC in having to defend a case where the Plaintiff has not put forward any supporting expert opinions in three years. With regard to the trial judge s allowing Plaintiff sixty additional days to obtain an affidavit, the lower court failed to follow Rule 56(f) regarding such extensions, and there was no basis in the record to support the continuance. The Court should use this opportunity to require adherence to its rules and should reverse and render judgment for VHC. Respectfully submitted, VICKSBURG HEALTHCARE, LLC D/B/A RIVER REGION HEALTH SYSTEM BY: /s/ Clifford C. Whitney III R. E. Parker, Jr., MSB # 4011 Clifford C. Whitney III, MSB #

13 OF COUNSEL: VARNER, PARKER & SESSUMS, P.A Jackson Street Post Office Box 1237 Vicksburg, Mississippi Telephone: 601/ Facsimile: 601/ CERTIFICATE OF SERVICE The undersigned counsel of record for Defendant Vicksburg Healthcare LLC does hereby certify that I forwarded a copy of the above and foregoing document to the following counsel of record, by first class mail, postage prepaid, fax, and/or hand delivery: Michael E. Winfield, Esquire Winfield & Moran 1129 Openwood Street Post Office Box 1448 Vicksburg, Mississippi Attorney for Plaintiff The Hon. Isadore W. Patrick P.O. Box 351 Vicksburg, MS This the 28 th day of October, /s/ Clifford C. Whitney III Clifford C. Whitney III 13

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