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Cheeks v. Bio-Medical Applications8/4/2005
m. I have no personal knowledge as to the condition of the graft on March 10, 2000.]
[Bio-Medical was negligent in failing to supply Henry with written instructions on how to treat excessive bleeding following dialysis.]
. Based on these written documents and deposition testimony, Bio-Medical filed a motion to exclude and/or strike and for summary judgment in which it alleged as follows: (1) the circuit court allowed Mattie to substitute Dr. Myers for Dr. Truly with the caveat that Dr. Myers's testimony could not exceed the scope of Dr. Truly's written opinion; (2) Dr. Myers's deposition testimony indicated that his opinion was that Bio-Medical was negligent because
(a) it failed to recognize that the vortex graft was too old and should have been replaced, and
(b) it failed to give Henry written instructions on how to treat excessive bleeding following dialysis; (3) these two subjects exceeded the scope of Dr. Truly's written opinion and should be stricken; (4) Dr. Myers's opinion regarding the age of the vortex graft exceeded the scope of his expert designation; (5) Dr. Myers was not competent or qualified to give opinions as to the age, the condition, or the needed replacement of the vortex graft; (6) Dr. Myers's opinion pertaining to the age of the graft and the need of replacement did not have a proper basis; (7) Dr. Myers was not competent or qualified to testify as to the standard of care for Bio-Medical; (8) Dr. Myers's testimony failed to establish by a reasonable degree of medical certainty and/or probability that the age of the vortex graft was a cause of Henry's death; and (9) Dr. Myers's opinion concerning a requirement that patients be given written instructions for post-dialysis care failed to establish by a reasonable degree of medical certainty and/or probability that Bio-Medical was negligent inasmuch as Henry followed the oral instructions given to him by Bio-Medical and Dr. Myers's opinion as to what he should have done if he experienced bleeding from the graft site -- apply pressure and then go to a hospital if needed.
. Bio-Medical's motion to exclude and/or strike and for summary judgment was granted and certified as a final judgment under M.R.C.P. 54(b), and Mattie appeals.
DISCUSSION
WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BIO-MEDICAL.
. To present a prima facie case of medical malpractice, a plaintiff, (1) after establishing the doctor-patient relationship and its attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite standard of care; and (3) establishing that the defendant physician failed to conform to the standard of care. In addition, (4) the plaintiff must prove the physician's noncompliance with the standard of care caused the plaintiff's injury, as well as proving (5) the extent of the plaintiff's damages. McCaffrey v. Puckett, 784 So. 2d 197, 206 (Miss. 2001) (citing Ladner v. Campbell, 515 So. 2d 882, 887-88 (Miss. 1987)). A physician who is sufficiently "familiar with the standards of [a medical] specialty, [may testify as an expert, even] though he [does] not practice the specialty himself." West v. Sanders Clinic for Women, P.A., 661 So. 2d 714, 718-19 (Miss. 1995). " t is our general rule that in a medical malpractice action negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care." Brooks v. Roberts, 882 So. 2d 229, 232 (Miss. 2004) (citing Sheffield v. Goodwin, 740 So. 2d 854, 858 (Miss. 1999)).
. In order to testify, Dr. Myers, a family physician, must have been familiar with the standard of care to which
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