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Swafford v. Manejwala

Court of Appeals of Mississippi

March 24, 2015

DEIRDRE AND BARRY SWAFFORD, APPELLANTS
v.
FAZAL MANEJWALA, M.D. AND MEMPHIS OB-GYN ASSOCIATES, APPELLEES

DATE OF JUDGMENT: 07/31/2013

DESOTO COUNTY CIRCUIT COURT HON. ROBERT P.CHAMBERLIN JUDGE.

ATTORNEYS FOR APPELLANTS: BRIAN AUSTIN HINTON CHARLIE BAGLAN P. SHARKEY BURKE JR.

ATTORNEYS FOR APPELLEES: CLINTON M. GUENTHER TOMMIE G. WILLIAMS

BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

GRIFFIS, P.J.

¶1. Deirdre and Barry Swafford appeal the summary judgment that dismissed their medical-malpractice claim, because the Swaffords failed to designate a medical-expert witness. We find no error and affirm.

FACTS

¶2. In November 2010, Deirdre sought the services of Dr. Fazal Manejwala, at Memphis OB/GYN Associates ("MOA"), for a hysterectomy and bilateral salpingo-oophorectomy ("TAHBSO"). Dr. Manejwala performed the surgery laparoscopically, and he was assisted by Dr. Alok Kumar. Deirdre claimed that she was injured during the surgery.

¶3. Deirdre had a second surgery, to repair her bowel, that was performed by Dr. Daniel Fore, with General Surgery of Southaven, LLC ("GSS"). Dr. Manejwala assisted in this surgery. Deirdre claimed that this surgery was not properly performed.

¶4. On January 9, 2012, the Swaffords filed a complaint for medical malpractice against Dr. Kumar, Dr. Fore, GSS, Dr. Manejwala, and MOA.

¶5. On November 2, 2012, the court entered an agreed scheduling order. The order provided that the Swaffords' expert witness(es) be designated no later than April 1, 2013. The Swaffords were unable to designate an expert by April 1, 2013, and they filed a motion to amend the scheduling order. They requested a ninety-day extension on all deadlines. In response, Dr. Manejwala and MOA asked the court to deny the extension and filed a motion for summary judgment.

¶6. The Swaffords retained an expert witness, Dr. Dave M. David, eighty days after they filed the motion for additional time. A week later, the Swaffords scheduled a hearing on their motion for additional time.

ΒΆ7. On June 28, 2013, the court heard the motion for additional time and the motion for summary judgment. In addition, that day, Dr. Manejwala and MOA filed a motion to strike Dr. David's affidavit. The court struck the affidavit and found that "sufficient cause" did not exist to extend the deadline. The court also concluded that even if the expert-witness affidavit was allowed, it failed to establish the Swaffords' claim of medical negligence. As a result, with no expert witness, the court granted summary judgment and entered a final judgment. The ...


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