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HERMAN J. WALKER, JR., AND THROUGH HIS NEXT FRIEND, HERMAN J. WALKER, AND HERMAN J. WALKER v. JACOB SKIWSKI

AUGUST 03, 1988

HERMAN J. WALKER, JR., AND THROUGH HIS NEXT FRIEND, HERMAN J. WALKER, AND HERMAN J. WALKER
v.
JACOB SKIWSKI



BEFORE ROBERTSON, GRIFFIN AND ZUCCARO, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is a medical malpractice case. The trial court granted a physician's motion for summary judgment. The case turns on a combined interaction of our rules regarding a physician's duty of care and as well the procedural requisites for successful opposition to a motion for summary judgment. Because of the strength of the physician's showing coupled with the plaintiff patient's failure to support his opposition with a non-hearsay expert opinion that the physician here sued was negligent, the Circuit Court was correct in entering judgment summarily for the physician. We affirm.

 II.

 On March 22, 1984, Herman J. Walker engaged the services of Dr. Jacob Skiwski to perform a circumcision on Walker's infant son, Herman, Jr. Skiwski is a licensed practicing physician having his office in Columbus, Mississippi, and specializing in the field of pediatrics. As fate would have it, all was not well following the surgery as young Walker experienced considerable pain and discomfort. He ultimately had to undergo corrective surgery on his penis.

 On March 11, 1986, Herman J. Walker, Jr., by and through his father and next friend, Herman J. Walker, commenced this civil action by filing his complaint in the Circuit Court of Lowndes County, Mississippi. The senior Walker joined as a plaintiff and demanded his medical and other expenses. Dr. Skiwski was named as the sole defendant.

 The complaint in substance charged that Skiwski had been engaged to perform the circumcision, that he had done so in a negligent and improper manner, in consequence of which young Walker experienced great pain and discomfort and required substantial additional medical and surgical services. The complaint also charged that young Walker experienced mental anguish and emotional distress. Skiwski answered and denied the essential allegations of the complaint.

 After several discovery skirmishes Skiwski on December 23, 1986, moved for summary judgment. Skiwski supported his application by his own affidavit, the December 9, 1986, affidavit of Dr. Jake S. Vacarella, a pediatrician, and the affidavit of December 15, 1986, of Dr. William C. Gates, Jr., a urologist. The essence of these three affidavits was that Skiwski performed the circumcision consistent with that degree of care, skill and diligence a patient is entitled in law to expect of a physician and that any injury suffered by young Walker was due to causes unrelated to the manner in which Skiwski performed his surgery.

 The Walkers responded to the motion asserting that there were genuine issues of material fact entitling them to trial. Following a hearing on the motion, the Circuit Court on January 12, 1987, entered its order granting same and entering judgment for Skiwski summarily and dismissing the Walkers' complaint. It is from that action that the present appeal is prosecuted.

 III.

 Each physician, by virtue of the positive law of this state, has a non-delegable duty of care to render professional services to each patient

 consistent with that objectively ascertained minimally acceptable level of competence he may be expected to apply given the qualifications and level of expertise he holds himself out as possessing and given the circumstances of the particular case.

 Hall v. Hilbun, 466 So.2d 856, 871 (Miss. 1985). Injury caused by substantial violations of the physician's duty and the patient's right in this regard may ...


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