BEFORE HAWKINS, P.J., ROBERTSON AND PITTMAN, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the Second Judicial District of Harrison County in which the chancellor granted the estate of Walter E. Ross, Jr., deceased (Estate), a motion for summary judgment against a claim by Biloxi Regional Medical Center (Medical Center) for medical expenses incurred by the decedent on November 13, 1985. The Medical Center appeals the chancellor's granting of the motion for summary judgment and
dismissal of their claim with prejudice, and the Estate cross-appeals the chancellor's failure to grant attorney's fees to the Estate.
We reverse and remand on direct appeal, and do not address the cross appeal.
On November 13, 1985, at approximately 10:00 p.m., Ross was taken by ambulance to the Medical Center. According to the hospital records contained in the record on appeal, Ross had received two gunshot wounds to the chest. How the shots were inflicted was not stated. Also, according to hospital records, paramedics were unable to find vital signs on Ross when they arrived at the scene, but were able to find a pulse while en route to the hospital. Although vital signs were again lost, personnel at the hospital performed CPR on Ross for one and one-half hours before pronouncing him dead.
On January 13, 1986, letters testamentary were issued to Sonya J. Ross, his widow, by the chancery court of the Second Judicial District of Harrison County. Notice to creditors was duly published. On February 27 the Medical Center filed its claim for $2,727.90 for medical services performed on Ross following his gunshot wounds. The claim was allowed by a deputy chancery clerk. Both the filing and approval of the claim were in accordance with Miss. Code Ann. 91-7-149.
The claim was contested by the Estate, alleging the services performed on Ross at the hospital were performed on a dead body, and, therefore, any expenses incurred were unnecessary. Thereafter, on October 21, 1986, the Estate propounded interrogatories to Biloxi Regional Medical Center requesting the names and testimony of medical personnel and any other experts expected to testify regarding the treatment of Ross, as well as the medical records pertaining to the treatment of Ross on November 13, 1985, pursuant to Rules 26(b)(4)(A)(1), and 33(a). The answer to interrogatories on November 20, 1986, consisted solely of copies of the November 13, 1985, medical records of Ross. Although names of attending personnel were written on these records, Biloxi Regional Medical Center failed to give the names of witnesses or testimony of personnel or other experts expected to testify. On November 24, 1986, the estate filed a motion to compel interrogatories answers regarding the identification of experts and their testimony.
According to the briefs from both parties on this appeal, a hearing on the motion to compel was heard on January 28,
1987, at which time the attorney for Biloxi Regional Medical Center informed the chancellor no experts were expected to be called. No transcript of this hearing, however, is contained in the record.
On February 2, 1987, the estate filed a motion for summary judgment, arguing the expenses incurred by the hospital were unnecessary since the medical records furnished through answers to interrogatories showed Ross was without vital signs when the paramedics first examined him, as well as when Ross was delivered to the hospital, and in fact" never during the time the body was in the custody of [Biloxi Regional Medical Center] did the body exhibit the least sign of life. "No affidavits were filed with this motion.
Thereafter, on February 27, 1987, Biloxi Regional Medical Center responded to the motion, stating there was a genuine issue of fact, but not specifying what this issue was. Further, attached to this response was an affidavit by James D. Baker, administrator of Biloxi Regional Medical Center, stating he was familiar with hospital bookkeeping records and that the estate of Ross had failed to pay any part of the $2,727.90 owed to the hospital.
The motion for summary judgment was heard on March 2, 1987. The chancellor acknowledged the prior statement by the Medical Center's attorney that no expert witnesses would be called. Consequently, based on the fact that no experts would be called to testify regarding Ross' condition, and, based on the fact that, in the chancellor's opinion, the hospital records showed Ross was dead, thereby making any attempts at resuscitation unreasonable, the chancellor stated it was his intention to grant the motion for summary judgment, noting the estate should not have" to pay the brunt of the payment for [unnecessary treatment]. "The chancellor then told the attorney for Biloxi Regional Medical Center he would allow him to send a proffer of evidence to the court reporter for appeal purposes, but no proffer was ever made. On March 17, 1987, a fiat was entered requiring Biloxi Regional Medical Center to show why the summary ...