EMAIL TO A FRIEND COMMENT

 

ER Failure to Diagnose Stroke; Plaintiff Failure to Timely File Expert Affidavit


A man presented to a hospital’s emergency room (ER) with symptoms indicating a stroke. The man was discharged with instructions to consult his primary care physician within three or four days. After he was discharged the man suffered a stroke.

 

The man and his wife brought a medical malpractice action against the hospital. The complaint alleged that the hospital had failed to timely diagnose the man’s stroke. The complaint asserted that the hospital breached the applicable standard of care by discharging the man, despite his having presented to the hospital with symptoms indicating stroke, and instructing him to consult his primary care physician within three or four days, which resulted in a stroke and greatly increased deficits in his function, loss of enjoyment of life, medical costs, pain, suffering and other damages.

 

The couple failed to designate an expert timely in accordance with the scheduling order imposed by the Sharkey County Circuit Court. The couple filed their expert designation, along with a motion for continuance. The hospital moved to strike the expert designation and moved for summary judgment. Following a hearing, the trial court granted a continuance to the couple although the court cut off the couple’s ability to conduct discovery beyond the 30-day extension. The trial court denied both the hospital’s motion to strike and its motion for summary judgment. The hospital filed an interlocutory appeal.

 

The Supreme Court of Mississippi affirmed. The court held that trial court acted within its discretion in granting a continuance, refusing to strike the couple’s untimely expert designation, and denying the hospital’s motion for summary judgment after granting the couple’s continuance.

 

The trial court acted within its discretion in granting a continuance. The trial court’s order granting the continuance cut off the couple’s ability to conduct discovery beyond the 30-day extension, which ensured that the hospital was not prejudiced by the continuance. Additionally, the trial court’s order provided more than a month for the hospital to take additional discovery and to supplement its expert designations. The couple did not have notice of the hospital’s motion for summary judgment until a day after they served the hospital with their motion for continuance and expert designation.

 

The trial court acted within its discretion in refusing to strike the couple’s untimely expert designation. The couple’s expert designation was filed 65 days beyond the date set forth in the scheduling order. During those 65 days, the hospital filed motions to compel. The trial date was also postponed. The trial court’s denial of the hospital’s motion to strike did not compromise the efficient disposal of the case.

 

The trial court acted within its discretion in denying the hospital’s motion for summary judgment after granting the couple’s continuance. The couple’s failure to timely file an expert affidavit did not entitle the hospital to summary judgment. The trial court made clear that its denial of summary judgment was without prejudice to its being renewed at a later date. Because the trial court determined that issues had not sufficiently been fleshed out such that summary judgment to the hospital was warranted, the court held that the trial court did not err in denying the hospital’s motion for summary judgment.

 

The Supreme Court of Mississippi affirmed the trial court’s grant of a continuance to the couple and denial of the hospital’s motion to strike and motion for summary judgment.

 

See: Sharkey Issaquena Community Hosp. v. Anderson, 2015 WL 9225350 (Miss., Dec. 17, 2015) (not designated for publication).

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

See also Medical Law Perspectives, October 2013 Report: Brain Aneurysm and Subarachnoid Hemorrhage: Failure to Diagnose, Delayed Diagnosis, Misdiagnosis

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

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