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Paepke v. North Mississippi Medical Center Inc.3/23/1999
n of demonstrating that no genuine issue of fact exists falls on the party requesting summary judgment. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63-64 (Miss.1988). However, this burden on the moving party is one of production and persuasion, not of proof. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). Ultimately, the granting of summary judgment lies only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P.56(c).
DISCUSSION
. Mr. Paepke contends that the trial court erred in granting summary judgment due to his
failure to establish a genuine issue of material fact. Law
. " ississippi case law demands that in a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care." Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987). " bsent expert medical testimony which (a) articulates the duty of care the physician owes to a particular patient under the circumstances, (b) identifies the particular(s) wherein the physician breached that duty and caused injury to the plaintiff patient, the plaintiff's claim for negligence . . . must fail." Id.
Analysis
. The trial Judge indicated in his order for summary judgment that the medical affidavit prepared by T.K. Ellis, an emergency room physician, and submitted on Mr. Paepke's behalf was "merely Conclusions and not articulate the duty of care nor identify the particular(s) breaches of the duty of either defendant". This Court disagrees.
. The affidavit read, in pertinent part,:
6. That I, [T.K. Ellis] have actively participated and practiced and participated in the field of emergency medicine for approximately eighteen (18) years.
7. That I have thoroughly reviewed, analyzed and outlined all of the medical records and reports which are relevant to the pending lawsuit which has been filed by Jerry Paepke against the North Mississippi Medical Center and its agents.
8. That these medical records and reports indicate that both Dr. Alan Brown and Dr. Michael Currie, as agents of the North Mississippi Medical Center, clearly breached the applicable standard of care in the evaluation, documentation, diagnosis, treatment and Disposition of Jerry Paepke on or about July 31, 1993.
9. That in my expert medical opinion, based upon a reasonable degree of medical certainty, Dr. Alan Brown, an agent of the North Mississippi Medical Center, committed malpractice with regard to his diagnosis, treatment, and care of Jerry Paepke on or about July 31, 1993.
10. That in my expert medical opinion, based upon a reasonable degree of medical certainty, Dr. Michael Currie, an agent of the North Mississippi Medical Center, committed malpractice with regard to his diagnosis, treatment, and care of Jerry Paepke on or about July 31, 1993.
11. That in my expert medical opinion, based upon a reasonable degree of medical certainty, the condition of Jerry Paepke worsened as a result of the failure of Dr. Alan Brown and Dr. Michael Currie to properly diagnose and treat Jerry Paepke, on or about July 31, 1993.
12. That in my expert medical opinion, based upon a reasonable degree of medical certainty, Jerry Paepke has been caused to suffer permanent injuries as a result of the failure of Dr. Alan Brown and Dr. Michael Currie to properly diagnose and treat Jerry Paepke on or about July 31, 1993.
13. That in my expert opinion, based upon a reasonable degree of medical certainty, Jerry Paepke received incompetent medical care from a
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