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Cole v. Buckner6/13/2002
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 6/13/2002
. After a grant of summary judgment in favor of Dr. Irene Buckner, James Floyd Cole, the surviving spouse of Rosa M. Cole, appeals the ruling citing an abuse of discretion by the circuit court in violation of M.R.C.P. 36(a) & (b). Finding the motion for summary judgment was properly granted, this Court affirms the judgment of the circuit court.
FACTS AND PROCEEDINGS BELOW
. On August 22, 2000, a complaint was filed for the wrongful death of Rosa M. Cole resulting from alleged malpractice against Irene Buckner, M.D. and three other defendants, Dr. Roger D. Weiner, Dr. Leonel Lacayo and Clarksdale HMA. The complaint alleged that Rosa Cole died from complications when Dr. Weiner negligently punctured her small bowel during a double cardiac catheterization. The complaint also alleged the other defendants breached their duty of care in their treatment of Rosa Cole.
. On February 28, 2001, Dr. Weiner moved for summary judgment. Dr. Buckner joined Dr. Weiner's motion for summary judgment because Cole had failed to respond to discovery requests and had also failed to provide any information regarding an expert. The other defendants also filed motions for summary judgment. The hearing, which was originally scheduled for March 13, 2001, was unilaterally cancelled by Cole's attorney and was rescheduled for April 11, 2001. Cole did not respond to requests for production, interrogatories or admissions propounded by Dr. Buckner prior to the hearing, nor did he respond to the motion for summary judgment.
. At the hearing, all defendants except Dr. Buckner were voluntarily dismissed by Cole. At this time, Cole provided Dr. Buckner with responses to requests for production, interrogatories and admissions, as well as a brief affidavit of a purported expert and a report from the expert. The substance of the report stated Rosa Cole died from Dr. Buckner's failure to timely diagnose a small bowel obstruction ileus. This conclusion was never mentioned in the original complaint, nor had the complaint been amended. Dr. Buckner was given 14 days from the date of the hearing to review the report and file necessary motions. Summary judgment at that time was denied.
. On April 24, 2001, Dr. Buckner filed a motion to strike Cole's responses to the requests and interrogatories based on grounds for failure to properly serve. She also renewed her motion for summary judgment. Cole did not respond to the motion. At the second hearing, Cole filed a motion for extension of time and/or withdrawal of his answers to the request for admissions. This motion was denied, and summary judgment was granted in favor of Dr. Buckner. Following the court's granting of Dr. Buckner's motion for summary judgment, James Cole timely filed his notice of appeal. He raises the following two issues before this Court:
I. WHETHER THE REQUESTS FOR ADMISSION (NUMBERS 2 AND 4) VIOLATE M.R.C.P. 36(a).
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO ANSWER AND/OR TO PERMIT WITHDRAWAL OR AMENDMENT OF REQUESTS FOR ADMISSION (NUMBERS 2 AND 4).
DISCUSSION
. This Court employs a de novo standard in reviewing a trial court's grant of summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). Summary judgment may only be granted where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c). The trial court must carefully review all evidentiary matters in the light most favorable to t
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