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JAMES A. COLE v. CHRISTOPHER E. WIGGINS

APRIL 09, 1986

JAMES A. COLE
v.
CHRISTOPHER E. WIGGINS, M.D.



BEFORE ROY NOBLE LEE, HAWKINS AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

The extent to which a trial judge may impose restrictions by protective order upon the deposing of a party litigant is the subject of this appeal. James A. Cole, plaintiff/appellant, sued Christopher E. Wiggins, M.D. in the Circuit Court of Jackson County alleging medical malpractice. From the granting of a motion for summary judgment, plaintiff appeals and assigns the following as error:

(1) The circuit court erred when it prevented the appellant from taking the deposition of the appellee by order of the circuit court dated July 15, 1983, and filed July 15, 1983.

 (2) The circuit court erred in refusing to allow the plaintiff to call the defendant as a witness upon the hearing of the motion for summary judgment or in the alternative to continue the hearing on the motion until the appellee's deposition could be taken.

 (3) The circuit court erred in granting the defendant's motion for summary judgment since a genuine issue of material fact exists and the requisites necessary under rule 56(c) of the Mississippi Rules of Civil Procedure to grant a motion for summary judgment were not satisfied by the appellee.

 This Court reverses and remands for further proceedings.

 I.

 On January 20, 1981, appellant, James A. Cole, suffered a severe injury to his left index finger while operating a saw at Ingalls Shipbuilding Division in Pascagoula, Mississippi. Mr. Cole was taken to the Singing River Hospital Emergency Room where he was treated by Dr. Christopher E. Wiggins, an orthopedic surgeon.

 After signing two authorization forms Mr. Cole was taken into surgery where his entire left index finger was amputated. Mr. Cole brought this suit claiming two theories of liability: (1) that he was never informed that his entire finger might be amputated and (2) that he never gave his informed consent thereto. Furthermore, he contends that the actions taken by Dr. Wiggins in amputating his entire finger

 constituted medical malpractice. Mr. Cole claims that Dr. Wiggins informed him that if the partially severed portion of his finger could not be salvaged, the finger would be amputated at the middle joint.

 Conversely, Dr. Wiggins contends Mr. Cole was completely informed of the possible results of the surgery. He claims it was impossible to salvage the severed portion of the finger and, in order to avoid future pain and complication, it was necessary to amputate the entire finger.

 During discovery the defendant, Dr. Wiggins, propounded interrogatories requesting the names of any expert witnesses upon which plaintiff intended to rely. Three months later, pursuant to an order compelling an answer to defendant's interrogatories, the plaintiff answered that no experts had been retained and that the answer would be supplemented if appropriate in the future.

 Six weeks later, the plaintiff attempted to depose the defendant, but upon notice of the deposition, the defendant moved for and was granted a protective order pursuant to rule 26(d) of the Mississippi Rules of Civil Procedure. The order stated that the plaintiff was prohibited from taking the deposition of Dr. Wiggins until the plaintiff provided the name of an expert witness and responded to the defendant's interrogatories. The plaintiff was unsuccessful in seeking a reconsideration of that ruling.

 Thereafter, Dr. Wiggins filed a motion for summary judgment. *fn1 At the hearing on the motion, plaintiff attempted to call Mr. Wiggins as an adverse witness but the court refused to allow ...


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