Decisions – COA – Feb. 2, 2016

Carol Gray v. Eric Graham, M.D. and Michelle Graham, N.P.,  – med mal/sufficiency of expert affidavit – After Carol Gray suffered a second thoaracic fracture within 4 months, she had it repaired by orthopedic surgeon Dr. Eric Graham on May 13, 2009.  During surgery, Dr. Graham took a biopsy.  The report documenting the May 13, 2009, biopsy results stated the following: “Numerous plasma cells are present within the marrow space, consistent with plasmacytoma/ multiple myeloma. Recommend serum and urine protein electrophoresis. Please correlate with clinical and radiographic findings.”  While the report was faxed to the Grahams’ office, the Grahams claim they did not become aware of the letter until they received a pre-suit notice from plaintiff.  Gray ended up being diagnosed with multiple myeloma in June of 2010.  She sued Dr. Graham and his wife, a nurse practitioner, arguing that if the Grays had diagnosed her in 2009, she could have avoided the numerous vertebra fractures she suffered after they treated her.

The Grahams moved for summary judgment.  The plaintiff supplied affidavits from an expert nurse and doctor.  The doctor opined that ‘[b]ecause Gray achieved partial remission and suffered no additional fractures once she began chemotherapy at M.D. Anderson, Dr. Avery opined to a reasonable degree of medical certainty that had Gray discovered her diagnosis shortly after the May 13, 2009, biopsy and initiated treatment shortly thereafter, most if not all, of the additional fractures discovered during June and July of 2010 would, more likely than not, have been avoided.”

The trial court granted summary judgment. “Because the Affidavit of Bruce Avery only makes a boilerplate conclusory opinion, which was given with no real facts to back it up, and with no specific facts nor medical analysis as to how or why the delay in an unspecified type of treatment caused the additional fractures, the Court finds that Plaintiff has failed to establish medical causation.”  The COA reverses.

We appreciate Dr. Avery’s line of reasoning given the factual support he borrows to support his theory, and we disagree with the circuit court’s determination that Dr. Avery’s opinions were conclusory. Rather, we determine that Dr. Avery’s affidavit constituted sufficient evidence to establish causation at this point in the litigation. Given the information before us, we find that there remains an issue of material fact.

Darlene Walz v. HWCC Tunica, Inc – premises liability – Walz tripped over the box springs in her Hollywood Casino hotel room.  The trial court granted summary judgment and the COA affirms upholding the trial court’s determination that Walz failed to prove any negligence on the part of the hotel.

James Terry Campbell v.  James Jonespolling of the jury regarding verdict – Campbell and Marquz Thomas sued Jones  alleging that Jones ran into the back of Campbell’s trailer as he was turning into a private driveway.  The  jury returned a verdict finding Campbell sustained $200,000 in damages and Thomas $5,000; but found Campbell to be eighty percent at fault (his tail lights were not working), reducing his award to $40,000.  Campbell’s arguments on appeal center around the polling of the jury –  that the trial court did not require them to be polled with regard to the apportionment of fault.  The COA finds that he waived the issue by not raining it below.

Morris v. Inside Outside Inc.   – revocation under UCC/failure to give seller opportunity to cure – The Morrises house was damaged Katrina.  They ordered  $60,000 worth of cabinets, countertops and sinks from Inside Outside.  Apparently it took several months for the cabinets to arrive and after they were finally installed, the Morrises claimed they were defective and sued.  In its ruling, the trial court determined that the Morrises were not entitled to recovery because they revoked acceptance of the cabinets before giving IO a reasonable opportunity to cure the defects.  The COA affirms.

Rose Marie Monroe v. Alexander Blevins, M.D.med mal/testimony outside of disclosures – On January 15, 2008, 87-year-old William Ray fell at home. At the ER, the doctor failed to diagnose a broken hip.   Another doctor had an x-ray done on January 28 and diagnosed a hip fracture.  Although surgery was performed on January 30,  Ray died approximately a month after his fall.  His relatives filed suit.  Before trial, the court denied Blevins’ motion for summary judgment.  At trial, Dr. Blevins testified that he never considered a broken hip when Ray presented at the ER. Plaintiffs called as a witness the doctor who eventually diagnosed the fracture as well as their expert Dr. David Bomboy who testified that Blevins breached the standard of care. During Bomboy’s testimony, the court granted a mistrial on the grounds that Bomboy was testifying beyond the scope of his designation.   The trial was reset.  The plaintiffs filed for permission to supplement their expert designation which was denied. The trial court denied the motion and granted Blevins’ motion to dismiss.    Blevins argues that Bomboy was the expert designated to testify against all 13 of the original defendants.  When Bomboy’s deposition was taken, he stated “I don’t have an opinion against Dr. Blevens.”  Given this, he argues the Court was correct to deny the motion to supplement and correct to dismiss the case.  The COA affirms.

 

 

 

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