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Cheeks v. Bio-Medical Applications8/4/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 08/04/2005
BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
. Mattie Cheeks, individually, and as the Administratrix of the Estate of Henry Cheeks, appeals from the Madison County Circuit Court's grant of summary judgment in favor of BioMedical Applications of Mississippi, Inc., d/b/a Bio-Medical Applications of Canton a/k/a Central Dialysis Unit of Canton. Finding that Mattie's medical expert was not qualified to testify on the issues raised regarding Bio-Medical's alleged negligence, we affirm the circuit court's grant of summary judgment to Bio-Medical.
FACTS
. Mattie alleges as follows: Henry, a 75-year old, was seen in the Madison County Medical Clinic emergency room on March 12, 2000, for wheezing and bleeding from the site where a shunt for dialysis had been implanted. The bleeding was treated by the application of a dressing and elevating the arm. Henry was then released. Five minutes after his departure, the site began hemorrhaging heavily, and before he could get back to the emergency room, he was dead. Mattie filed suit against the Madison County Medical Clinic; three doctors, Edward Schwab, M.D., Alva Dillon, M.D., Sybil Raju, M.D.; and Fresenius Medical Care, alleging medical malpractice and wrongful death and requesting damages for Henry's suffering and death, loss of enjoyment of life, loss of love, society and companionship, loss of relationship, severe permanent emotional distress and funeral expenses. Bio-Medical filed a response to the complaint, stating that Mattie had improperly identified it as Fresenius Medical Care and denying that it had been negligent in any manner.
. Through discovery, Mattie designated William Truly, M. D., as her expert witness, and served a copy of his opinion. It soon became evident that Dr. Truly could not testify for Mattie because of a conflict of interest (Dr. Truly was on staff at the Madison County Medical Clinic, a defendant in the lawsuit). Therefore, Mattie substituted Ronald Myers, M. D., as her expert witness.
. Dr. Myers's opinion produced during discovery stated that: (1) Bio-Medical failed to meet applicable standards of care for proper dialysis facilities practicing under like and similar circumstances; (2) Bio-Medical failed to administer the dialysis procedure properly; (3) BioMedical failed to monitor and/or observe Henry during the March 10, 2000, dialysis session; (4) Bio-Medical failed to discover that the graft/shunt was ruptured; (5) Bio-Medical used excessive force which damaged the graft/shunt; and (6) Bio-Medical failed to instruct and/or warn Henry of the risks associated with post-dialysis bleeding when accompanied with a damaged graft/shunt.
. During his deposition, Dr. Myers testified as follows:
My opinion is that the type of graft . . . a vortex graft . . . was placed there in 1994 and was a very old graft, nine years old, and typically these grafts, on average, last from 18 [months] to two years and very rarely do you see a graft that old still being used; . . . [and there were] some complications that are associated with that graft being in use for that long a period of time.
[I base my opinion] upon what I've read and also my experience with talking to a nephrologist about grafts over the years. I think I also spoke to Dr. White over the years, the nephrologist in Greenwood, about these kind of issues, but typically a graft that old can be used, but it's very important to make sure it's functioning properly.
[I have neither medically inserted a graft in a patient nor observed the graft that was in Mr. Cheeks' ar
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