318 So.3d 1143
Miss. Ct. App.2020Background
- In January 2012 Jumper was referred to Delta Gastroenterology; on January 5 she was seen at that clinic by nurse practitioner Mary Grant (not Dr. Ulric Duncan, according to record).
- OBFMC ordered labs on January 6 showing a glucose of 308; OBFMC says its nurse notified Jumper on January 16, which Jumper disputes.
- Dr. Duncan treated Jumper later in 2012 (performed invasive procedures through Sept. 2012) but acknowledged he never ordered blood testing or drew blood while treating her.
- In Sept. 2012 Jumper was hospitalized with DVT and labs showed hemoglobin A1C >12, indicating long‑standing uncontrolled diabetes.
- Jumper sued OBFMC, Dr. Eldred, Nurse Wilson, and Dr. Duncan for failure to diagnose diabetes; Dr. Duncan moved for summary judgment asserting Jumper lacked proof tying him to the January 5 encounter and lacked expert proof of breach/proximate cause.
- The trial court granted summary judgment for Dr. Duncan (finding plaintiff’s expert evidence insufficient to show Duncan treated Jumper on Jan 5 or that Duncan’s conduct proximately caused injury); the case proceeded against OBFMC and Wilson, who won at trial; Jumper’s motion for new trial was denied and she appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was summary judgment for Dr. Duncan proper? | Jumper: her expert (Dr. Sutton) opined Duncan at least failed to order labs on Jan 5; medical documents/bills show Duncan attended Jan 5. | Duncan: record shows NP Mary Grant saw Jumper on Jan 5; no signed record or admissible evidence that Duncan treated her then; expert did not tie Duncan to breach or proximate cause. | Affirmed — summary judgment proper: plaintiff failed to show Duncan treated Jumper on Jan 5 or that expert established breach/proximate cause. |
| Could defendants introduce evidence implicating Dr. Duncan at trial ("pointing the finger at an empty chair")? | Jumper: defendants should have been barred from blaming a dismissed/non‑party and from exploiting that theory at trial. | Defendants: apportionment and relevance permit consideration of other tortfeasors; they relied on plaintiff’s expert testimony; cross‑examination scope is broad. | No reversible error — court allowed limited, relevant cross‑examination (excluding Jan 5) and use of plaintiff’s expert; not an improper "empty chair" admission. |
| Was denial of Jumper’s motion for new trial erroneous? | Jumper: admission of evidence blaming Duncan and related cross‑examination prejudiced her, warranting a new trial. | Defendants: trial court did not abuse discretion; evidence limits were appropriate; no miscarriage of justice. | Denial affirmed — no abuse of discretion or miscarriage of justice shown. |
Key Cases Cited
- Johnson v. Pace, 122 So. 3d 66 (Miss. 2013) (expert must identify standard of care and causation to survive summary judgment in medical‑malpractice action)
- Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346 (Miss. 1990) (plaintiff must present probative evidence of breach and proximate cause; unsworn allegations insufficient)
- Barner v. Gorman, 605 So. 2d 805 (Miss. 1992) (expert must articulate the requisite standard and causation)
- Downs v. Ackerman, 115 So. 3d 785 (Miss. 2013) (medical bills are not prima facie evidence of causation)
- Miss. Baptist Med. Ctr. Inc. v. Phelps, 254 So. 3d 843 (Miss. 2018) (elements required to prove medical malpractice at summary‑judgment stage)
- Magee v. Transcontinental Gas Pipe Line Corp., 551 So. 2d 182 (Miss. 1989) (party may not rely solely on unsworn pleadings to defeat summary judgment)
- Parson v. Go Knightrider LLC, 282 So. 3d 609 (Miss. Ct. App. 2019) (summary‑judgment review and non‑movant’s burden)
- Webb v. Forrest Gen. Hosp., 301 So. 3d 695 (Miss. Ct. App. 2020) (non‑movant must produce sufficient evidence of essential elements to avoid summary judgment)
- Howard v. Rolin Enters. LLC, 284 So. 3d 772 (Miss. Ct. App. 2019) (standard for de novo review of summary judgment)