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Fipps v. Greenwood Leflore Hospital

Court of Appeals of Mississippi

February 6, 2018

OTIS FIPPS APPELLANT
v.
GREENWOOD LEFLORE HOSPITAL APPELLEE

          DATE OF JUDGMENT: 07/05/2016

         LEFLORE COUNTY CIRCUIT COURT HON. RICHARD A. SMITH JUDGE

          ATTORNEY FOR APPELLANT: CARLOS EUGENE MOORE

          ATTORNEYS FOR APPELLEE: TOMMIE GREGORY WILLIAMS JR. TOMMIE G. WILLIAMS HARRIS FREDERICK POWERS III

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          LEE, C.J.

         FOR THE COURT:

         ¶1. In this medical-malpractice case, we must determine whether the trial court erred in excluding the testimony of Otis Fipps's medical expert, which resulted in the dismissal of Fipps's suit against Greenwood Leflore Hospital (the Hospital).[1] Finding no error, we affirm.

         PROCEDURAL HISTORY AND FACTS

         ¶2. On June 12, 2012, Fipps underwent an esophagogastroduodenoscopy (EGD) procedure performed by Dr. Thomas Calvit at the Hospital. According to Dr. Calvit, Fipps had complained of epigastric pain in both his left and right lower quadrants, dysphagia (difficulty swallowing), rectal bleeding, and constipation. Fipps also told Dr. Calvit that he possibly ingested a small piece of plastic several days prior to his initial appointment. During the EGD, Dr. Calvit performed an esophageal dilatation[2] to treat Fipps's dysphagia. Fipps claims this procedure caused a perforation of his esophagus, leading to further medical complications including a neck abscess and two additional surgeries.

         ¶3. Fipps designated Dr. Myron Stokes, a general surgeon, as an expert "in surgery regarding upper and lower gastrointestinal issues." In his affidavit attached to the designation, Dr. Stokes stated that "the performance of esophageal dilatation [during Fipps's EGD procedure] was not proven to be indicated in any of Dr. Calvit's pre-operative or intraoperative findings, thus constituting a deviation from the standard of care expected of a physician in Dr. Calvit's profession and specialty." Dr. Stokes further opined that the esophageal "dilatation was the initiating event that led to Fipps developing a fistula with resultant neck abscess requiring two additional surgeries." Dr. Stokes was deposed several months later.

         ¶4. Based upon Dr. Stokes's deposition, the Hospital filed three pretrial motions. The first asked the trial court to exclude the portions of Dr. Stokes's testimony regarding informed consent. The second asked the trial court to exclude any potential testimony by Dr. Stokes that his medical license was current or that he had never been disciplined by any medical licensure board.[3] The third asked the trial court to exclude Dr. Stokes's expert opinion because he lacked the appropriate qualifications to testify.

         ¶5. The trial court conducted a hearing on the Hospital's motions, ultimately granting all three. The effect of these rulings resulted in the exclusion of Dr. Stokes's deposition.[4] After granting the Hospital's motions, the trial court asked Fipps to call his first witness. Since Fipps had no witness other than Dr. Stokes, Fipps rested. The Hospital then requested a dismissal pursuant to Mississippi Rule of Civil Procedure ...


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