211 So. 3d 738
Miss. Ct. App.2016Background
- In May 2009 a biopsy of Carol Gray’s T‑5 vertebra showed plasma cells consistent with multiple myeloma; those results were sent to orthopedic surgeon Dr. Eric Graham but not to Gray. Gray alleges she was never informed and developed additional fractures and lesions before cancer was diagnosed in June 2010.
- Gray sued Dr. Graham and Nurse Graham, Dr. Dimitriades (her family physician), Memorial Hospital at Gulfport (MHG), and endocrinologist Dr. Frieze for medical malpractice. The Grahams previously lost summary‑judgment review reversed on proximate‑causation grounds; this appeal concerns Dr. Dimitriades/MHG and Dr. Frieze.
- Dr. Dimitriades received prior MRIs showing no lytic lesions and the results of the February 2009 biopsy (normal); there is no evidence he ever received the May 13, 2009 biopsy results. Gray saw Dr. Frieze once on July 21, 2009 for presumed post‑menopausal osteoporosis; there is no evidence he received the May 2009 biopsy results.
- Gray relied on expert affidavits from oncologist Dr. Bruce Avery asserting defendants should have ordered serum/urine electrophoresis and other testing that would have led to an earlier myeloma diagnosis and prevented later fractures. Defendants moved for summary judgment arguing Avery’s opinions were conclusory, speculative, and he was not disclosed as an expert for them.
- The circuit court granted summary judgment for Dr. Dimitriades/MHG and Dr. Frieze. The Court of Appeals affirmed, holding Avery’s affidavits failed to establish breach of the applicable standard of care or proximate causation (and Avery was not qualified to opine on endocrinology).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Frieze breached the standard of care by failing to order tests leading to myeloma diagnosis | Frieze should have ordered serum/urine electrophoresis and further workup when Gray presented with anemia, bone pain, and fractures | Frieze only saw Gray once for presumed osteoporosis, had MRIs showing no lytic lesions and no evidence he received the May 2009 biopsy results; Avery’s opinion is conclusory and speculative | Summary judgment for Frieze; expert affidavit insufficient to show breach or non‑speculative causation |
| Whether Dr. Dimitriades breached the standard of care by failing to order tests or inform Gray of biopsy results | Dimitriades should have investigated refractory anemia and fractures with electrophoresis and additional studies that would have led to myeloma diagnosis | Dimitriades had only normal biopsy results and MRIs without lytic lesions, referred Gray to specialists, and there is no proof he received the May 2009 biopsy; expert opinion lacks detail on how/when tests would have changed outcome | Summary judgment for Dimitriades/MHG; expert affidavit fails to specify how/when duty was breached or that diagnosis would more likely than not have prevented injuries |
| Whether expert’s affidavit satisfied causation standard (more likely than not) | Avery opined timely diagnosis would have avoided additional fractures and lesions | Avery did not specify timing, testing intervals, or when additional fractures occurred; his causation opinion is speculative and lumps defendants together | Summary judgment affirmed; proximate causation not established by non‑speculative expert proof |
| Whether expert was qualified to opine regarding endocrinologist standard of care | Avery (oncologist) offered opinions on endocrinology care | Defendants contend Avery lacked specialty qualification to opine on endocrinology | Court found it unnecessary to decide qualification after excluding substance of Avery’s opinion, and also noted Avery was likely unqualified to opine on endocrinology |
Key Cases Cited
- Price v. Purdue Pharma Co., 920 So. 2d 479 (Miss. 2006) (standard of review for summary judgment)
- Hubbard v. Wansley, 954 So. 2d 951 (Miss. 2007) (elements of medical malpractice and expert proof requirements)
- Bickham v. Grant, 861 So. 2d 299 (Miss. 2003) (standard of care objective test)
- Memorial Hosp. at Gulfport v. White, 170 So. 3d 506 (Miss. 2015) (causation requires >50% chance of better outcome)
- Dalton v. Cellular S. Inc., 20 So. 3d 1227 (Miss. 2009) (conclusory expert affidavits insufficient to survive summary judgment)
- Martin v. St. Dominic‑Jackson Mem’l Hosp., 90 So. 3d 43 (Miss. 2012) (proximate cause cannot rest on speculation)
- Potter v. Hopper, 907 So. 2d 376 (Miss. Ct. App. 2005) (malpractice claim requires expert testimony identifying specific breach and causation)