Brown v. McQuinn

• Citation: 501 So.2d 1093
• Decision Date: 14 May 1986
• Docket Number: No. 55492,55492
• Parties: Jeanette BROWN, et al. v. Dr. William C. McQUINN, et al.
• Court: United States State Supreme Court of Mississippi

Page 1093

501 So.2d 1093

Jeanette BROWN, et al. v. Dr. William C. McQUINN, et al.

No. 55492.

Supreme Court of Mississippi.

May 14, 1986.

As Modified on Denial of Rehearing

Jan. 28,

1987.

John L. Walker, Walker & Walker, John Nichols, Jackson, for appellants.

Cary E. Bufkin, K. Hayes Callicutt, Shell, Buford, Bufkin, Callicutt & Perry, Lee Davis Thames, Fred Krutz, III, Luther T. Munford, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellees.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

Jeanette Brown, the mother of seventeen-year-old Ronnie Brown, together with his brothers and sisters, filed this malpractice suit in the Circuit Court of the First Judicial District, Hinds County, Mississippi, Honorable Charles T. Barber, presiding, against Dr. William C. McQuinn and Dr. William E. Bowlus. The lower court sustained motions for summary judgments filed by Dr. McQuinn and Dr. Bowlus, and dismissed the complaint. The Browns have appealed to this Court.

The question presented is whether or not the lower court erred in sustaining the motions for summary judgments and in dismissing the complaint.

The record supporting and opposing the motions for summary judgments, which include depositions, interrogatories and answers, medical records and affidavits, reflect the following:

Ronnie Brown was experiencing jerking spells in October, 1979, and was seen at the medical health center in Greenwood, Mississippi, by Dr. John Alford, who prescribed medication for him. Ronnie continued to have the difficulty and was not doing well in school. Dr. Alford referred him to Dr. McQuinn who first saw Ronnie in his office in Jackson, Mississippi. He next saw him on March 7, 1980. Ronnie was admitted to Riverside Hospital by Dr. McQuinn, who was his primary treating physician. Dr. McQuinn also discharged him from that hospital. Dr. McQuinn's diagnosis at the time of discharge was cerebral dysrhythmia, myoclonic seizures. His secondary diagnosis was anemia, iron deficiency. Dr. McQuinn called in Dr. Bowlus, a neurologist, for consultation. Dr. Bowlus wrote the initial order for Dilantin, and Dr. McQuinn prescribed that medication. According to Dr. McQuinn, he and Dr. Bowlus were mutually responsible for following through on the treatment of Ronnie.

Dr. McQuinn discharged Ronnie from Riverside Hospital on March 26, 1980, with a final diagnosis of cerebral dysrhythmia, accompanied by myoclonic seizures. Ronnie and his parents went by Dr. McQuinn's office, where Ronnie was instructed to take 400 mg. of Dilantin and 30 mg. of phenobarbital daily. Dr. McQuinn indicated that Ronnie was admitted to Greenwood Leflore Hospital on April 12, 1980, with an initial diagnosis of a possible allergic reaction. The attending physician was of the impression that the rash was secondary to hydantoin toxicity. Dilantin is a drug of the hydantoin family. Ronnie's condition did not improve, and he was transferred to University Medical Center, Jackson, Mississippi, on April 18, where a preliminary diagnosis was made of "Dilantin induced hepatitic failure." Ronnie remained at University Medical Center until he died on April 22, 1980. An autopsy was performed, which indicated that the cause of death was liver failure as a consequence of Dilantin hypersensitivity.

he wanted to see Ronnie again in two or three weeks, but no appointment was made at that time. After Ronnie returned to his Greenwood home, he appeared to improve at first, but during his second week at home, his condition deteriorated. On April 11, Ronnie broke out in a high fever and rash consisting of measle-like bumps over his entire body. He had lost his sense of balance and coordination, was constantly sleepy, and was so ill that he could not stand up or walk around without holding onto something. His mother called Dr. McQuinn, who told her that the medicine could not be causing those problems, and told her to reduce the phenobarbital dosage. Five (5) days later, Ronnie's mother again called Dr. McQuinn, telling him that there was no improvement.

The key to the decision in this case is whether or not there was a genuine issue of material fact. If there is such an issue, the judgment of the lower court must be reversed. If there is not, then the judgment will be affirmed. There are a number of cases in this state interpreting Rule 56, Miss.R.Civ.P. In Hudson v. Bank of Edwards, 469 So.2d 1234 (Miss.1985), the Court stated:

The standard for summary judgment is set forth in Rule 56 of the Mississippi Rules of Civil Procedure, which provides that the judgment sought shall be rendered forthwith, if 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 fact and that the moving party is entitled to judgment as a matter of law.

469 So.2d at 1238. See also Bush v. Mullen, 478 So.2d 313 (Miss.1985); Smith v. H.C. Bailey Companies, 477 So.2d 224 (Miss.1985).

In Dennis v. Searle, 457 So.2d 941 (Miss.1984), the Court said:

Issues of fact sufficient to require denial of the motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says just the opposite. Issues of fact, as a matter of proper construction of Rule 56 also exist where there is more than one reasonable interpretation that may be given undisputed testimony, where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts, or where the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

457 So.2d at 944.

Many trial judges in this state seem not to have grasped the application of Rule 56 nor to realize what is meant by a genuine issue of material fact. Consequently, they are hasty in granting summary judgments, thereby benefitting none of the parties litigant. We remind the Bench and Bar of this Court's language in Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983):

Trial judges must be sensitive to the notion that summary judgment may never be granted in derogation of a party's constitutional right to trial by jury. Miss. Const. art. 3, Sec. 31 (1890). On the other hand, there is no violation of the right of trial by jury when judgment is entered summarily in cases where there is no genuine issue of material fact and the moving party is entitled to judgment Federal cases suggest that the burden is on the moving party to establish that there is no genuine issue of fact, although this burden is one of persuasion, not of proof. When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt. Liberty Leasing Co. v. Hillsum Sales Corporation, 380 F.2d 1013, 1015 (5th Cir.1967); Heyward v. Public Housing Administration, 238 F.2d 689, 696 (5th Cir.1956).

as a matter of law. There is no right of trial by jury in such cases.

We recognize that reasonable minds may often differ on the question of whether there is a genuine issue of material fact. In this context we find appropriate the admonition in a leading commentary on Federal Rule 56:

If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. And the problem of overcrowded calendars is not to be solved by summary disposition of issues of fact fairly presented in an action. 6 Moore's Federal Practice Sec. 56.15[1.-2] p. 56-435 (1982).

444 So.2d at 362-63. See also Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Hughes v. American Jawa Ltd., 529 F.2d 21 (8th Cir.1976); McLain v. Meier, 612 F.2d 349 (8th Cir.1979).

In Roberts v. Browning, 610 F.2d 528 (8th Cir.1979), the Eighth Circuit Court of Appeals, in reversing a summary judgment granted by the District Court in favor of the defendant, said:

In evaluating that determination it should be kept in mind that a federal district court has no discretion to grant a motion for summary judgment under Rule 56. However, even if a district judge feels that summary judgment in a given case is technically proper, sound judicial policy and the proper exercise of judicial discretion may prompt him to deny the motion and permit the case to be developed fully at trial. The ultimate legal rights of the movant can always be protected in the course or even after trial....

610 F.2d at 536.

With those principles in mind, we examine the record in the case sub judice. The appellants introduced the deposition of Dr. Gaetano S. Molinari in opposition to the motions for summary judgments. In ruling on the motion filed by Dr. Bowlus, the lower court held that Dr. Molinari was not qualified to testify under the decision in King v. Murphy, 424 So.2d 547 (Miss.1983), and, therefore, granted the summary judgment. In addition to the deposition of Dr. Molinari, the appellants filed affidavits of Drs. William Barial, William Truly, Aris Cox and Dennis Franklin, in opposition to the motion for summary judgment filed by Dr. McQuinn. Likewise, the lower court held that those experts did not meet the requirements of King v. Murphy, supra, and were not qualified to testify. Accordingly, the motion for summary judgment by Dr. McQuinn was sustained.

Without specifically stating the qualifications of appellants' medical experts, it is sufficient to note that they are eminently qualified physicians. All of them had studied and familiarized themselves with the depositions of the appellees and other witnesses, and had inspected and studied the voluminous medical records pertaining to the deceased.

Dr. Molinari, a neurologist and psychiatrist, enumerated specific acts of negligence, both by...