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Partin v. North Mississippi Medical Center7/19/2005
a summary judgment motion may be decided upon written briefs, if it appears that there are no genuine issues of material fact. Id. at 778 ( ). Thus, while our law in general requires adherence to the notice and hearing requirements of M.R.C.P. 56 and while our case law declares that granting a summary judgment motion without a hearing is error, we have made some allowance for harmless error in cases in which there are clearly no genuine issues of material fact.
. In the case sub judice, the record shows that there was nothing substantive put on by Dr. Oakes or by Partin respecting Dr. Oakes's particular role in the case. This is because, as Dr. Oakes's counsel openly declared at trial, his motion for summary judgment was not yet ripe, being filed only four days before the hearing on the other parties' motions. In addition, Partin, not expecting to be dealing with Dr. Oakes's motion until a later date, did not prepare or deliver any specific response to Dr. Oakes at the March 28, 2003 hearing.
. Based upon the foregoing we find that the trial court erred in granting Dr. Oakes's motion for summary judgment without the proper ten days notice and without a hearing, pursuant to M.R.C.P. 56. Regarding the holdings of Adams and Croke, we cannot say that the granting of summary judgment to Dr. Oakes was harmless error, because the record does not contain enough information regarding the claim against Dr. Oakes to say with certainty that there is no issue of fact regarding Dr. Oakes. Thus, we reverse the granting of summary judgment to Dr. Oakes and remand for a new hearing in which the proper procedure under Rule 56 is followed.
Dr. Sharp
. Dr. Sharp makes a similar argument as NMMC, stating that Partin failed to put on probative evidence, by expert medical testimony, of the three necessary elements of a medical malpractice claim. Unlike our conclusion regarding NMMC, we find this argument, when advanced by Dr. Sharp, to have merit. This is because of Dr. Sharp's peculiar role in the case, and because Dr. Holzhauer's affidavit does not speak to Dr. Sharp's conduct in this matter.
. Dr. Sharp was Mrs. Partin's treating physician beginning on December 24, 1999. On the morning of December 30, 1999, after seeing Mrs. Partin one last time, Dr. Sharp went out of town for the holidays. Dr. Sharp informed the family that he was leaving and that Dr. Gray would be on call in his place, should anything arise while he was out of town. It is undisputed that Dr. Sharp was off-duty and off-call during the entire time relevant to this action. That is, it is undisputed that Mrs. Partin's problems did not surface until after Dr. Sharp had left the hospital to go out of town, leaving Dr. Gray in charge of Mrs. Partin's care.
. Based upon the fact that Dr. Sharp was not in the hospital and possibly not even in town, it seems that summary judgment was proper as to Dr. Sharp. Partin does not allege that it was somehow negligent for Dr. Sharp to go on vacation; thus, the fact that Dr. Sharp was not present (and not expected or required to be present, since he was away on vacation) at the times relevant to this action seems to exonerate him from any liability in Mrs. Partin's death. In response to this conclusion (that Dr. Sharp should not be held liable for something that happened while he was on vacation), Partin argues that a treating physician has a non-delegable duty to his patients and that, therefore, Dr. Sharp may be held vicariously liable for the negligence of Dr. Gray.
. Dr. Sharp argues that Partin's contention is unsupported by any authority and should, therefore, not be considered by this Court. In the alternative, Dr. Sharp argues that o
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