E-Filed Document Jul 12 2016 14:07:18 2014-CA-01106-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAROL GRAY APPELLANT VERSUS NO.: 2014-CA-01106 JIMMY DIMITRIADES, M.D., MEMORIAL HOSPITAL AT GULFPORT and TODD FRIEZE, M.D. APPELLEES RESPONSE OF APPELLEES, DIMITRIOS DIMITRIADES, M.D. AND MEMORIAL HOSPITAL AT GULFPORT, IN OPPOSITION TO APPELLANT'S MOTION FOR REHEARING Appeal from the Circuit Court of Harrison County, Mississippi Honorable Lawrence P. Bourgeois, Jr. Attorney for Appellees, Dimitrios Dimitriades, M.D. and Memorial Hospital at Gulfport Roland F. Samson, III Mississippi Bar No. 8764 Samson & Powers, PLLC Post Office Box 1417 Gulfport, Mississippi 39502-1417 Telephone: (228) 822-1109 Facsimile: (228) 822-2317 E-mail: rsamson@splawfirm.com
TABLE OF CONTENTS PAGE TABLE OF CONTENTS......................................................... i TABLE OF AUTHORITIES..................................................... ii STATEMENT OF THE CASE.................................................... 1 I. DISPOSITION BY THE MISSISSIPPI COURT OF APPEALS.................................................. 1 II. GRAY'S MOTION FOR REHEARING........................... 1 ARGUMENT.................................................................. 2 A. Gray's Motion is repetitious of the argument already considered by the Court - Dr. Avery's Affidavit and Supplemental Affidavit, the undisputed facts as apply to Memorial and their application to well-established Mississippi law have been discussed, briefed and argued before this Court................................. 2 B. This Court was eminently correct in finding that Dr. Avery's Affidavit and Supplemental Affidavit are insufficient to create a question of fact on the issues of standard of care, alleged breach of the standard of care and/or medical causation................ 3 CONCLUSION................................................................ 8 CERTIFICATE OF SERVICE................................................... 10 i
TABLE OF AUTHORITIES CASES: PAGE Burnham v. Tabb 508 So.2d 1073 (Miss. 1987)............................................... 8 Delta Reg'l Med. Ctr. v. Venton 964 So. 2d 500 (Miss. 2007)................................................ 8 Enroth v. Memorial Hospital at Gulfport 566 So. 2d 202 (Miss. 1990)................................................ 1 Gen. Elec. Co. v. Joiner 522 U.S. 136 (1977)...................................................... 7 Gray v. Dimitrios Dimitriades, M.D. So. 3d, 2016 WL 3153735 (Miss. Ct. App. June 7, 2016)............ 1, 3, 6, 8 Ladner v. Campbell 515 So. 2d 885 (Miss. 1987)................................................ 7 MST, Inc. v. Mississippi Chemical Corp. 610 So. 2d 299 (Miss. 1992)................................................ 2 Miss. Transp. Comm'n v. McLemore 863 So. 2d 31 (Miss. 2003)................................................. 7 Potter v. Hopper 907 So. 2d 376 (Miss. Ct. App. 2005)........................................ 7 Scales v. Lackey Mem'l Hosp. 988 So. 2d 426 (Miss. Ct. App. 2008)......................................... 8 STATUTES: Miss. Code Ann. 11-46-1....................................................... 1 Miss. Code Ann. 11-46-13(1).................................................... 1 OTHER AUTHORITIES: Miss. R. App. P. 40........................................................... 1, 3 ii
Miss. R. Evid. 702.............................................................. 7 Jeffrey Jackson, 1 MS Prac. Encyclopedia of MS Law 6:11 (2015 ed.).................... 2 iii
STATEMENT OF THE CASE I. DISPOSITION BY THE MISSISSIPPI COURT OF APPEALS In affirming the trial's court's grant of summary judgment in favor of the Defendants/Appellees, this Court unanimously held (with Judge James not participating) that: The circuit court correctly concluded that Dr. Avery's affidavit failed to support Gray's allegations that Dr. Frieze and Dr. Dimitriades breached the standard of care and proximately caused injury to her. Therefore the circuit court properly granted summary judgment in favor of those defendants (and Dr. Dimitriades's employer, MHG). Gray v. Dimitrios Dimitriades, M.D., So. 3d, 2016 WL 3153735, at *9 (Miss. Ct. App. June 7, 2016). II. GRAY'S MOTION FOR REHEARING On July 5, 2016, Gray filed a Motion for Rehearing pursuant to Miss. R. App. P. 40 as to 1 Dr. Dimitriades/Memorial only. Gray did not file her Motion as to Defendant/Appellee, Dr. Todd Frieze, and presumably is not challenging this Court's June 7, 2016, decision as relates to Dr. Frieze. In her Motion, Gray argues that the "court erroneously weighed competing inferences 2 and usurped the jury's role as fact finder." (Pl.'s Motion, p. 1). As will be demonstrated below, Gray's Motion should be denied for the following reasons: (1) the Motion is a nonstarter since it is a "mere repetition of the argument already considered by the court"; and (2) this Court's June 7, 2016, decision was not based on any error of law or fact, but rather was eminently correct in finding that Dr. Avery's Affidavit and 1 Unless distinction between Dr. Dimitriades and Memorial is factually necessary, Dr. Dimitriades and Memorial will be referred to collectively as "Memorial" in this Response. 2 Memorial is a political subdivision of the State of Mississippi and a public, community hospital subject to all procedural and substantive provisions of the Mississippi Tort Claims Act, Miss. Code Ann. 11-46-1, et. seq. See Enroth v. Memorial Hospital at Gulfport, 566 So. 2d 202 (Miss. 1990). Accordingly, Memorial (and Dr. Dimitriades as an employee of Memorial) was entitled to a bench trial pursuant to Miss. Code Ann. 11-46-13(1). 1
Supplemental Affidavit "failed to support Gray's allegations that... Dr. Dimitriades breached the standard of care and proximately caused injury to her." ARGUMENT A. Gray's Motion is repetitious of the argument already considered by the Court - Dr. Avery's Affidavit and Supplemental Affidavit, the undisputed facts as apply to Memorial and their application to well-established Mississippi law have been discussed, briefed and argued before this Court. "In a motion for rehearing, the party is to identify the point of law or fact which the court has overlooked or misapprehended. Substantively, the motion for rehearing does not provide a platform for simple reargument of the issues already presented, as the rule expressly provides. Nor is a motion for rehearing an opportunity to 'preserve' an objection which should have been made at trial, or an instrument for presenting a wholly new issue not previously briefed." Jeffrey Jackson, 1 MS Prac. Encyclopedia of MS Law 6:11 (2015 ed.). Stated another way: The purpose of a petition for rehearing is not to allow counsel to add assignments of error which, for whatever reason, were not included in the appellant's original brief to this court. Judicial economy dictates that we consider only those assignments of error set forth in the original brief. The purpose of the petition for rehearing is to allow the parties to point out "the points of law or fact which in the opinion of the petitioner this Court has overlooked or misapprehended...." Miss.Sup.Ct.Rules 40. We cannot misapprehend or overlook that which is not presented for our review. MST, Inc. v. Mississippi Chemical Corp., 610 So. 2d 299, 304 (Miss. 1992). It is undisputed that Dr. Avery's Affidavit and Supplemental Affidavit, the undisputed facts as applicable to Memorial (and Dr. Frieze) and their application to Mississippi law are and have been the only issues on appeal. However, dissatisfied with this Court's June 7, 2016, decision (and the trial court's July 10, 2014, Findings of Fact, Conclusions of Law and Order granting Memorial's Motion for Summary Judgment, R.III. 368-380), Gray argues that this Court "weighed competing inferences" and impermissibly concluded that Dr. Avery's Affidavit and 2
Supplemental Affidavit are conclusory and without sufficient factual detail as to essential elements of Gray's case against Memorial. This Court has not overlooked or misapprehended any point of law or fact, and Gray's Motion is nothing more than a "reargument of the issues already presented", which is expressly prohibited by Miss. R. App. P. 40. Therefore, Gray's Motion should be summarily denied. B. This Court was eminently correct in finding that Dr. Avery's Affidavit and Supplemental Affidavit are insufficient to create a question of fact on the issues of standard of care, alleged breach of the standard of care and/or medical causation Gray's liability case against Dr. Dimitriades and Frieze are similar (i.e., as treating physicians they allegedly should have known, based on Gray's clinical symptomotology and lab results, that she had multiple myeloma/failure to diagnose), while her liability claim against Dr. Graham/NP Graham is completely different (i.e., Dr. Graham received the May 13, 2009, Pathology Report or Biopsy Report, but failed to notify Gray of its significant findings). Indeed, this Court recognized that "[t]he issues in this appeal are materially different [than the separate 3 but related appeal involving Dr. Graham/NP Graham, No. 2014-CA-00069-COA]." Gray, 2016 WL 3153735, at *5. Dr. Dimitriades is a Family Medicine physician, Dr. Frieze is an Endocrinologist and Dr. Graham is an Orthopedic Surgeon. Dr. Dimitriades saw Gray from July 2008 - early 2010. Dr. Frieze apparently saw Gray on only one occasion July 21, 2009. It appears from the record that Dr. Graham received the May 13, 2009, report which stated the biopsy at T-5 revealed "[n]umerous plasma cells are present within the marrow space, 3 This Court reversed the trial court's grant of summary judgment in favor of Dr. Graham/NP Graham, and this appeal is pending on Dr. Graham/NP Graham's Motion for Rehearing. 3
consistent with plasmacytoma/multiple myeloma". (R.I. 99; Appellees' R.E. 5 and 24-28). The Pathology Report recommended that Gray undergo a "serum and urine protein electrophoresis, and that the biopsy results be correlated with "clinical and radiographic findings." Id. Curiously, in his Affidavit, Dr. Avery avers that Dr. Dimitriades "should have done further testing to determine protein levels in the blood and urine such as serum and urine electrophoresis" - language that appears to lifted verbatim from the May 13, 2009, Pathology Report. Notwithstanding that Dr. Avery maintains Dr. Dimitriades received the May 13, 2009, Pathology Report, there is no proof that Dr. Dimitriades received the subject report (and Gray's counsel admitted as much during oral argument before this Court on February 10, 2016). Bottom line Dr. Avery is attempting to impose a duty upon Dr. Dimitriades to conduct further testing to determine protein levels in Gray's blood and urine such as serum and urine electrophoresis (i.e., testing recommended by the Pathologist who reviewed the May 13, 2009, biopsy), when Dr. Dimitriades never received the May 13, 2009, Pathology Report at any point during his treatment of Gray and was not aware of same under after receipt of Gray's Notice of Claim dated August 29, 2010. So, while it appears that the operative date insofar as Dr. Graham is concerned is May 13, 2009, there is no proof that Dr. Dimitriades received the May 13, 2009, Pathology Report. Consequently, this begs the relevant question and the legally problematic concern recognized by the trial court and this Court - at what point during the continuum of Dr. Dimitriades' treatment has Gray offered admissible, credible evidence that Dr. Dimitriades should have known of her multiple myeloma. On this point, Dr. Avery's Affidavit and Supplemental Affidavit are conclusory and fail. Further and more importantly, since there is no credible proof as to what date (or even approximate date) Dr. Dimitriades should have known that Gray had multiple 4
myeloma, then Dr. Avery's Affidavit and Supplemental Affidavit on the issue of medical causation likewise fail. In its opinion, this Court correctly found as follows:... Dr. Dimitriades, a family medicine physician, referred Gray to an orthopaedic specialist, Dr. Graham, after he diagnosed a T-7 fracture [on or about November 26, 2008]. Dr. Dimitriades knew that Dr. Graham performed surgery to repair the fracture, and he also knew that the results of the biopsy taken during the February 2009 surgery were normal, i.e., the results did not indicate that Gray had multiple myeloma. In addition, MRIs of Gray's spine on January 15, 2009, and April 30, 2009, did not indicate the presence of any lytic lesions, which also indicated that Gray did not have multiple myeloma. Dr. Avery asserts that Dr. Dimitriades "had notice" of the results of Gray's May 13, 4 2009 biopsy and negligently failed to communicate those results to her. However, as with Dr. Frieze, there is no evidence to support Avery's accusation. The evidence shows that the results of the second biopsy were sent to Dr. Graham alone. Accordingly, Dr. Avery's unsupported assertion will not suffice to defeat summary judgment. Even though the evidence shows Dr. Dimitriades received two MRIs and the results of one biopsy indicating that Gray did not have multiple myeloma, Dr. Avery asserts that Dr. Dimitriades committed malpractice for the following reasons: When Mrs. Gray's anemia did not respond to treatment, and when Mrs. Gray suffered her first thoracic fracture, the standard of care required a reasonably prudent internist to further investigate potential causes of the refractory anemia and thoracic fracture. Specifically, Dr. Dimitriades should have done further testing to determine protein levels in the blood and urine such as serum and urine electrophoresis. Had Dr. Dimitriades conformed to the standard of care, I opine to a reasonable degree of medical certainty that he would have documented results that would have led to further studies to confirm the diagnosis of multiple myeloma. Other studies that would have documented Multiple Myeloma such as a bone marrow examination... would have confirmed a diagnosis of multiple myeloma. However, Dr. Dimitriades did "investigate potential causes" of Gray's "first thoracic fracture." He referred her to Dr. Graham, who performed a biopsy, the results of 4 The truth of the matter is that Dr. Avery's accusation in this regard is baseless and dead wrong. 5
which were normal. The records also reflect that Gray was referred to Dr. Frieze for treatment of post-menopausal osteoporosis. Gray had follow-up appointments with Dr. Dimitriades in May, June, and September of 2009 and January of 2010. Dr. Avery asserts that even though Dr. Dimitriades had received test results indicating that Gray did not have cancer, and even though Gray was referred to both an orthopedic surgeon and an endocrinologist Gray's continued anemia during this time period compelled Dr. Dimitriades to order "further testing to determine protein levels in the blood." The results of these initial tests supposedly "would have led to further studies" and an eventual diagnosis of multiple myeloma. In connection with Dr. Avery's opinions that Dr. Dimitriades breached the applicable standard of care, we not that in January 2010, Gray stopped seeing Dr. Dimitriades and began seeing a different family medicine physician, Dr. Kerby. Gray saw Dr. Kerby in January, May, and June 2010, but there is no evidence in the record that Dr. Kerby independently diagnosed Gray's multiple myeloma or ordered any of the tests that Dr. Avery contents were necessary. Gray, 2016 WL 3153735, at *7-8 (emphasis original). The foregoing is not the product of this Court erroneously weighing competing inferences, but rather is a correct and analytical recapitulation of the undisputed facts as relate to Memorial. Assuming for purposes of argument only that Dr. Dimitriades should have ordered a serum and urine electrophoresis immediately following Gray's initial thoracic fracture on November 26, 2008, Dr. Avery does not state what, if anything, the serum and urine electrophoresis would have definitively shown and why the results of same would or should have led to further testing. In fact, the following were negative for any indication or suspicion of multiple myeloma: January 15, 2009, MRI (no lytic lesions); February 18, 2009, biopsy at T-7; and April 30, 2009, MRI (no lytic lesions). Other than the serum and urine electrophoresis that Dr. Avery alleges should have been ordered following the November 26, 2008, T-7 fracture (but with no definitive date or approximate date as to when), Dr. Avery does not ascribe any other standard of care (or alleged breach) to Dr. Dimitriades other than that Dr. Dimitriades should 6
have ordered a bone marrow examination (other than the frivolous assertion that Dr. Dimitriades had notice of the May 13, 2009, Pathology Report) but Dr. Avery does not indicate when the bone marrow examination should have been ordered, what the bone marrow examination would have shown, nor does he provide any clinical basis or facts as to why the bone marrow 5 examination should have been ordered. In her Motion, Gray claims that "[i]t is a fair, if not unavoidable inference that Dr. Dimitriades should have conducted further testing to determine protein levels in the blood as early as November or December of 2008." (Pl.'s Motion, p. 5). However, Dr. Avery did not state so in his Affidavit or Supplemental Affidavit. As explained by this Court, Plaintiff is required to provide expert testimony that not only articulates the standard of care Dr. Dimitriades owed to the Plaintiff, but also must "identify the particular point that the physician breached that duty and caused injury to the [P]laintiff...." Potter v. Hopper, 907 So. 2d 376, 380 (Miss. Ct. App. 2005). Given that Gray has alleged a "lost of chance of recovery", she has a difficult case to begin with. In Ladner v. Campbell, 515 So. 2d 885, 888 (Miss. 1987), the Mississippi Supreme Court recognized that in cases such as this one, where the alleged malpractice takes the form of a failure to cure, rather than the result of "any positive effects of mistreatment", establishing causation is "particularly difficult." More importantly, based on the undisputed facts applicable to Dr. Dimitriades (and Frieze), Gray has the extremely difficult task in this case of proving "that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of 5 Dr. Avery may not merely say, "it is so, because I say it is so," a form of ipse dixit reasoning prohibited by Miss. R. Evid. 702 and decisional law. Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 37 (Miss. 2003) (quoting Gen Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1977)). 7
others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury; and (4) the plaintiff was injured as a result." Delta Reg'l Med. Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007) (citing Burnham v. Tabb, 508 So. 2d 1073, 1074 (Miss. 1987)). Proof must be provided for each element of Gray's claim and if one element is lacking, the entire claim, or, in this case, the theory of recovery fails. Scales v. Lackey Mem'l Hosp., 988 So. 2d 426, 431 (Miss. Ct. App. 2008) (citations omitted). By the very nature of this case and the absence of any proof that Dr. Dimitriades received the May 13, 2009, Pathology Report, Gray had an uphill battle to establish a viable claim against Memorial. Consequently, it is not surprising that Dr. Avery's Affidavit and Supplemental Affidavit are conclusory and insufficient to create a question of fact on the essential elements of Gray's claim. Therefore, after thoroughly reviewing Dr. Avery's Affidavit and Supplemental Affidavit, vetting the material, undisputed facts and applying same to applicable law, this Court properly held that "[t]he circuit court correctly concluded that Dr. Avery's affidavit failed to support Gray's allegations that... Dr. Dimitriades breached the standard of care and proximately caused injury to her." Gray,WL 3153735, at *9. Clearly, summary judgment in favor of Memorial was appropriate and warranted. CONCLUSION For the reasons stated hereinabove, this Court should deny Gray's Motion for Rehearing. 8
th RESPECTFULLY SUBMITTED, this the 12 day of July, 2016. SAMSON & POWERS, PLLC Attorneys at Law 2217 Pass Road (39501) Post Office Box 1417 Gulfport, Mississippi 39502-1417 Telephone: 228/822-1109 Facsimile: 228/822-2317 DIMITRIOS DIMITRIADES, M.D. AND MEMORIAL HOSPITAL AT GULFPORT BY: SAMSON & POWERS, PLLC BY: /s/ Roland F. Samson, III ROLAND F. SAMSON, III Mississippi Bar No. 8764 9
CERTIFICATE OF SERVICE I, ROLAND F. SAMSON, III, of the law firm of Samson & Powers, PLLC, do hereby certify that I have this day electronically filed the foregoing with the Clerk of Court using the MEC system, which sent notification of such filing to the following: Stephen Burrow, Esq., Jonathan B. Fairbank, Esq., Edward Gibson, Esq., John F. Hawkins, Esq., James H. Heidelberg, Esq. and Stephen G. Peresich, Esq., and I hereby certify that I have mailed, by United States Mail, postage prepaid, a true and correct copy of the above and foregoing to the following: Honorable Lawrence P. Bourgeois, Jr. Circuit Court Judge P.O. Box 1461 Gulfport, MS 39502-1461 th THIS, the 12 day of July, 2016. /s/ Roland F. Samson, III ROLAND F. SAMSON, III MS BAR NO. 8764 SAMSON & POWERS, PLLC Attorneys at Law 2217 Pass Road (39501) Post Office Box 1417 Gulfport, Mississippi 39502-1417 Telephone: 228/822-1109 Facsimile: 228/822-2317 10