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Jones v. Orris6/27/2005
ns Jones would have suffered if her appendix had not ruptured.
On July 20, 2004, Dr. Orris moved for summary judgment in his favor on all claims against him because Jones failed to provide the court with any expert testimony on the issue of proximate cause. On August 6, 2004, a hearing on Dr. Orris's motion was scheduled for August 20, 2004. On August 12, 2004, Southeast Permanente and Dr. Koralewski moved for summary judgment as well.
On August 19, 2004, Jones filed a reply brief to all of the pending summary judgment motions. On the same day, Jones filed Dr. Graham's affidavit, in which he opined for the first time that the defendants' actions were the proximate cause of Jones's injuries. In this affidavit, Dr. Graham gave the following explanation of the materials he had reviewed in forming his opinions:
I have personally reviewed the certified copies of the medical records of the treatment of Lisha Phillips Jones regarding her treatment with the Defendants in August of 1999, including the emergency department at Northside Hospital and the medical clinic at Kaiser Permanente. Since the time of my last deposition, I have also reviewed the medical records of Northside Hospital for the period of time she was hospitalized after her ruptured appendix was diagnosed, as well as the Plaintiff's medical records from Dr. Mitchell-Leef. I have also reviewed the deposition of Dr. Mitchell-Leef.
Certified copies of the medical records Dr. Graham reviewed are not attached to his affidavit and, as noted earlier, do not appear elsewhere in the record before us.
At the beginning of the August 20 hearing on Dr. Orris's motion for summary judgment, the trial court was informed that there were two pending motions for summary judgment on the same grounds, as well as a motion to amend the pre-trial order. The trial court announced that it would deal with the motions for summary judgment first and Jones's counsel did not object to the trial court's consideration of both motions. At no time during the hearing did Jones's counsel object to the court's consideration of all of the pending motions for summary judgment. At the conclusion of the hearing, the trial court announced that it would be granting summary judgment to all of the defendants because there was insufficient evidence in the record to support Dr. Graham's opinions.
Four days later, Jones filed a motion asking the court to reconsider its oral order granting summary judgment to Dr. Koralewski and Southeast Permanente on the grounds that she had not been given thirty days to respond to the motion and file affidavits. On the same date, Jones's counsel filed an affidavit stating that her medical treatment records were attached. The attached records were again uncertified. On September 2, 2004, the trial court entered a written order granting summary judgment to all defendants and denying Jones's motion for reconsideration.
1. We find no merit in Jones's claim that the trial court improperly shortened the time for her to reply to Dr. Koralewski and Southeast Permanente's motions for summary judgment. The trial court properly concluded that Jones waived any objection to a hearing less than 30 days after the motions were filed by arguing the motions without objection during the hearing.
2. Jones asserts the trial court should not have granted summary judgment to the defendants because there was sufficient evidence in the record to create an issue of fact on the issue of proximate cause.
A plaintiff must establish the following three essential elements to recover in a medical malpractice action: "(1) the duty inherent in the doctor-patient relationship; (2) the brea
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