Kurlansky v. Blythe2/20/2004
DECISION
. The plaintiff-appellant, the estate of Ann B. Fink, appeals from the order of the trial court granting summary judgment to the defendant-appellee, Marguerite M. Blythe, M.D., Inc., in an action alleging negligent medical malpractice, "intentional medical malpractice," and wrongful death. In its two assignments of error, the estate argues that the trial court erred by granting summary judgment to Dr. Blythe, and by failing to grant it a continuance to secure a supplemental affidavit from its expert witness to defend against Dr. Blythe's motion for summary judgment. For the following reasons, we affirm.
. The gist of the allegations against Dr. Blythe was that she had prescribed excessive doses of medication without personally examining Fink while she was a patient at Jewish Hospital. The action was filed on December 2, 1999. The same action against Dr. Blythe, Jewish Hospital, and nurse Lori Hempel had been previously filed on April 10, 1998. The estate had voluntary dismissed its claims against Jewish Hospital on December 2, 1998, and against Nurse Hempel on January 25, 1999, when confronted by motions for summary judgment pointing out the lack of any expert opinion to support the estate's theories of recovery. The estate's refiling on December 2, 1999, reinstated claims against all three defendants.
. On May 4, 2000, the trial court issued an order, journalized the next day, that noted that the case had been set for trial on May 14, 2001, over a year away. The parties were ordered to furnish trial briefs fourteen days before trial, to disclose all expert witnesses (for the plaintiff) by September 29, 2000 and (for the defendant) by November 30, 2000, to complete all discovery by March 30, 2001, and to submit all pretrial motions by April 11, 2001.
. On October 4, 2000, Jewish Hospital filed a motion for summary judgment, advising the court that it had received from the estate only summaries of the anticipated opinions of its two potential experts, Vickie Turner, a nurse, and Dr. Stephen Deutsch, a psychiatrist. The hospital stated that these summaries did not include any opinion on proximate cause. Additionally, the hospital submitted the affidavit of Dr. Blythe in which she stated that she had not breached any standard of professional medical care and that, even if she had, no injury had occurred to Fink as a result. Also in her affidavit, Dr. Blythe addressed a letter, attached as an exhibit, from Dr. Deutsch to the executor of the Fink estate. In that letter, dated July 24, 1988, Dr. Deutsch stated that he had reviewed the medical records of Fink's hospitalization and that, in his opinion, "medication for agitation should have been initiated with doses significantly lower than the ones prescribed by Dr. Blythe." Dr. Deutsch also concluded that "the psychiatric care fell below an acceptable standard." In her affidavit, Dr. Blythe stated that she had reviewed Dr. Deutsch's letter, and "despite disagreeing with his conclusions as to my compliance with the standard of care, note that Dr. Deutsch fails to offer any opinion as to whether or not my care directly or proximately caused Ann Fink further injuries and/or death."
. On December 5, 2000, Dr. Blythe filed a separate motion for summary judgment. Similar to the hospital's motion, Dr. Blythe's motion was based upon the lack of any expert opinion on proximate cause. She attached the same affidavit by her that had been used by Jewish Hospital to support its motion for summary judgment.
. Also on December 5, 2000, Dr. Blythe moved to have the estate's executor, Stephen Kurlansky, Esq., removed as counsel from the action. According to Dr. Blythe, it had become apparent th
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