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STELLA TERRELL, INDIVIDUALLY AND AS HEIR OF MARY OLIVIA TERRELL, DECEASED v. DR. EARNEST RANKIN

JULY 22, 1987

STELLA TERRELL, INDIVIDUALLY AND AS HEIR OF MARY OLIVIA TERRELL, DECEASED
v.
DR. EARNEST RANKIN



BEFORE ROY NOBLE NOBLE, DAN LEE and GRIFFIN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Stella Terrell appeals from a summary judgment entered by the Circuit Court of the First Judicial District of Hinds County, Mississippi, in favor of Dr. Earnest Rankin, dismissing Terrell's suit for damages on account of the death of her unborn child and for personal injuries sustained by her. She assigns three (3) errors committed by the lower court, viz:

I. THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE ON APPELLANT'S WRONGFUL DEATH ACTION SINCE GENUINE ISSUES OF MATERIAL FACT EXISTED.

 II. THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE ON APPELLANT'S INDIVIDUAL CLAIM AS GENUINE ISSUES OF FACT EXISTED.

 III. THE LOWER COURT ABUSED ITS DISCRETION IN NOT GRANTING APPELLANT'S MOTION FOR CONTINUANCE.

 The appellant filed her complaint on March 30, 1984, charging that (1) appellee failed to properly diagnose and treat her pregnancy resulting in the death of her unborn viable child on November 1, 1982; (2) appellee failed to employ laboratory tests reasonably available for determining the existence of pregnancy; and (3) appellee failed to use a reasonable amount of attention, observation and skill in examining appellant so as to know and determine that she was pregnant, and in examining laboratory reports, records and data involving appellant. The substance of the allegations of the complaint was that appellee failed to use proper diligence and care in examining and treating appellant; that, as a result of such failure, appellant's unborn child, a fetus of 8-9 months, was stillborn; and appellant sustained personal injuries herself from the failure of appellee to exercise the proper standard of care.

 The appellee moved for summary judgment on the ground that there is no genuine issue of material fact and that appellant failed to state a claim under Mississippi Code Annotated 11-7-13 (Supp. 1986).

 I. - III.

 The lower court granted partial summary judgment as to the wrongful death claim on December 6, 1985. The reason for sustaining that motion for summary judgment does not

 appear in the record, but appellant argues that, since the second part of the motion, i.e., relating to her personal injuries, was not sustained until a later date, the lower court was apparently of the opinion deceased must have been born alive before an action could be maintained under the wrongful death statute. If such was the understanding of the court, the question is answered in Rainey v. Horn, 221 Miss. 268, 283, 72 So.2d 434 (1954), where the court said:

 [A]n unborn child, after it reaches the prenatal age of viability when the destruction of the life of its mother does not necessarily mean the end of its life also, and when, if separated from its mother would be so far a matured human being that it would live and grow mentally and physically as a person; and if such child dies before birth as the result of a negligent act of another, an action may be maintained for its death under the wrongful death statute.

 We now address the contention of appellant that the lower court erred in granting summary judgment against appellant on her individual claim, since genuine issues of fact existed, and the third contention that the lower court abused its discretion in declining to grant appellant's motion for continuance. We are of the opinion that the third contention should be sustained and that it is dispositive of all issues on this appeal.

 After granting partial summary judgment as to the wrongful death claim on December 6, 1985, the lower court reset the hearing for summary judgment on appellant's individual personal injury claim for 9:00 a.m. December 13, 1985. On the latter date, the appellant filed a motion for continuance alleging her inability to file the affidavit of her expert; setting out that the appellee would not be prejudiced because trial was set for June 10, 1986; and that the motion for continuance was not filed for the purpose of delay. Appellant's affidavit was attached as Exhibit A to the motion and contained the following:

 (1) She had become extremely emotionally involved, sought the assistance of counsel, and turned over her file, including ...


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