Carter v. Total Foot Care
| Decision Date | 17 May 2022 |
| Docket Number | 2021-CA-00610-COA |
| Parties | Gloria CARTER, Appellant v. TOTAL FOOT CARE and Dr. Michael Zaleski, Individually and in His Professional Capacity, Appellees |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: ABBY GALE ROBINSON, Jackson
ATTORNEYS FOR APPELLEES: BENJAMIN BLUE MORGAN, ROMNEY HASTINGS ENTREKIN, Laurel, PEELER GRAYSON LACEY JR.
BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. On February 21, 2019, Dr. Michael Zaleski (Dr. Zaleski) removed Gloria Carter's (Carter) left gangrenous toe at Total Foot Care. On February 19, 2020, Carter filed a complaint in the United States District Court for the Southern District of Mississippi against Total Foot Care and Dr. Zaleski, alleging a number of claims including medical malpractice. On October 13, 2020, the district court dismissed the case. On October 15, 2020, Carter filed a complaint in the Lamar County Circuit Court, alleging the same claims. On December 8, 2020, Total Foot Care and Dr. Zaleski served Carter with their requests for admissions. Carter failed to timely respond to them. On January 15, 2021, Total Foot Care and Dr. Zaleski filed a Motion for Acknowledgment of Deemed Admissions and for Summary Judgment, alleging that the failure to deny the requests for admissions conclusively established that Dr. Zaleski did not breach the standard of care. On June 4, 2021, the trial court granted summary judgment for Total Foot Care and Dr. Zaleski. Carter appeals, and raises a number of issues, including whether the trial court erred in granting summary judgment. Upon review of the record, this Court finds that the trial court did not err in granting summary judgment for Total Foot Care and Dr. Zaleski.
FACTS AND PROCEDURAL HISTORY
¶2. In January 2019, Carter began seeing Dr. Zaleski at Total Foot Care for problems related to a preexisting foot and circulation issue. Dr. Zaleski told Carter during her visits that she needed to visit a "vascular specialist" because she was "in danger of losing her gangrenous left fifth toe." Carter never saw a specialist. On February 21, 2019, Carter visited Dr. Zaleski, and he removed her gangrenous toe at the Total Foot Care office. On February 19, 2020, Carter filed a complaint in federal court, alleging a number of claims including medical malpractice.1 During the course of that lawsuit, Total Foot Care and Dr. Zaleski served Carter interrogatories and requests for production. Carter served Total Foot Care and Dr. Zaleski interrogatories, requests for production, and requests for admissions. Leslie Ross, The Mississippi State Board of Medical Licensure, and the past and current Director of the Board were dismissed. On October 13, 2020, the district court dismissed the case for lack of jurisdiction.
¶3. On October 15, 2020, Carter filed a complaint in the circuit court and alleged the same claims. On December 8, 2020, Total Foot Care and Dr. Zaleski served Carter with interrogatories, requests for production of documents, and requests for admissions. Among other things, Total Foot Care and Dr. Zaleski asked Carter to admit "that Dr. Zaleski did not breach the standard of care by surgically removing [her] left fifth toe." Instead of responding to the requests for admissions, on December 9, 2020, Carter filed a "Motion to Consolidate Interrogatory, RFA, and RFP from the District Court with this Court in the Interest of Judicial Economy for Both Parties." Carter argued that the discovery completed for the lawsuit filed in the federal court should be consolidated for the circuit court to avoid "repetitive discovery." Total Foot Care and Dr. Zaleski opposed the motion, arguing that Carter provided no legal authority to support her motion, that the claims in the circuit court were different, and that Carter's answers to their requests in federal court were "non-responsive." The trial court never ruled on this motion.
¶4. On January 15, 2021, Total Foot Care and Dr. Zaleski filed a Motion for Acknowledgment of Deemed Admissions and for Summary Judgment after Carter failed to timely respond to their requests for admissions. They argued that Carter's failure to timely respond created an admission, which "conclusively established that Dr. Zaleski did not breach the standard of care in this matter."
¶5. On January 21, 2021, Carter filed her response in opposition to the motion for summary judgment. In her response, Carter argued that she informed Total Foot Care and Dr. Zaleski that "[d]iscovery in this case was done in the District Court." Carter also argued that Total Foot Care and Dr. Zaleski's "motion is severely flawed because they did not have an expert witness to state the standard of care ...." Further, Carter argued that the motion should be denied because she "provided expert testimony as to the standard of care in a medical malpractice case as well as supporting affidavits ...."
¶6. Carter attached an expert report from Dr. Michael L. Boykins to her response. Within it, Dr. Boykins opined that Carter "did not receive the proper standard of care." However, Carter did not attach an affidavit from Dr. Boykins. Carter also attached her own affidavit to her response. In her affidavit, Carter stated: (1) she was not told to see another doctor before her toe was removed; (2) she did not know Dr. Zaleski did not have admitting privileges to any hospital; (3) she was coerced by Dr. Zaleski into letting him remove her toe; (4) the room where her toe was removed was not sterile; (5) because the procedure was not performed in a sterile environment, she now suffers from sepsis and kidney failure
; (6) she was able to drive her vehicle and move with "mobility" prior to her toe being removed, but now she does not "have mobility without assistance of a person" and cannot drive; and (7) she has to undergo dialysis once a week.2 Carter's attorney never filed a motion to withdraw or amend the admissions that by operation of Rule 36 of the Mississippi Rules of Civil Procedure were deemed admitted.
¶7. On March 26, 2021, the circuit judge held a hearing on Total Foot Care and Dr. Zaleski's motion. At the hearing, the circuit court ordered both parties to provide supplemental briefing on whether responses to requests for admissions filed in federal court can serve as responses to "similar or the same" requests for admissions filed in circuit court.
¶8. On May 20, 2021, prior to the circuit court's ruling on the summary judgment motion, Carter attempted to respond to Total Foot Care and Dr. Zaleski's requests for admissions. In her response, Carter did not admit or deny any of the requested admissions. Instead, her response, as alleged by Total Foot Care and Dr. Zaleski, was merely a copy of each of their requested admissions.3
¶9. On June 4, 2021, after reviewing the supplemental briefing, the trial court granted summary judgment with prejudice for Total Foot Care and Dr. Zaleski because Carter failed to respond to the requests for admissions. The circuit court also noted that Total Foot Care and Dr. Zaleski never served requests for admissions on Carter in the federal case. Regardless, the circuit court found Carter was required to respond to the requests for admissions when she was served on December 8, 2020, and since the matters within them were deemed admitted, the issue of the standard of care was conclusively established. Carter appealed.
¶10. Carter raises a number of issues on appeal. Specifically, Carter argues: (1) the trial court erred in granting summary judgment when there were "material and substantial disputes" about the medical standard of care; (2) the trial court erred in granting summary judgment when the "[d]efendants did not have the required properly supported elements" to grant summary judgment; (3) the trial court erred in stating that Total Foot Care and Dr. Zaleski "subsequently filed a motion for reconsideration when there is not a motion for reconsideration found on the docket"; (4) the trial court erred in failing to rule on Carter's motion to consolidate; (5) the trial court erred in finding that Carter "did not comply with [d]iscovery;" (6) the trial court abused its discretion in granting the motion for summary judgment; and (7) Carter's "discovery dispute motion that was properly filed December 9, 2020 and noticed for a hearing before the court on June 4, 2021, but was cancelled by [Total Foot Care and Dr. Zaleski] at or around 3:48, [on] Friday, May 28, 2021, before [the] Memorial Day extended weekend, was unfair adjudication by the [c]ourt when the [c]ourt turned around that very same scheduled hearing date of June 4, 2021 and granted summary judgment to Appellees as though no such motions and hearing was on the Court[’]s calendar."4 In essence, there is only one issue before this Court: whether the trial court erred in granting summary judgment for Total Foot Care and Dr. Zaleski. We find it did not err. Therefore, since that issue is dispositive as to all other issues raised, we will only address summary judgment.
ANALYSIS
¶11. A trial court's grant of summary judgment is reviewed de novo. Miss. Baptist Health Systems Inc. v. Harris , 320 So. 3d 484, 487 (¶14) (Miss. 2021). "[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Lefler v. Wasson , 295 So. 3d 1007, 1009 (¶7) (Miss. Ct. App. 2020) (quoting Karpinsky v. Am. Nat'l Ins. Co. , 109 So. 3d 84, 89 (¶11) (Miss. 2013) ). A trial court should grant summary judgment 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 a judgment as a matter of law." M.R.C.P. 56(c). "To be exact, the content of summary-judgment evidence must be...
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