BRIEF OF APPELLEE PATRICK ANDERSON MURPHREE, M.D.

Transcription

1 E-Filed Document Nov :56: CA Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA JERRY BOWEN AND CHERYL BOWEN APPELLANTS AND NEW HAMPSHIRE INDEMNITY COMPANY, INC. INTERVENOR VERSUS AMORY HMA, LLC d/b/a GILMORE MEMORIAL REGIONAL MEDICAL CENTER and PATRICK ANDERSON MURPHREE, M.D. APPEL L EES BRIEF OF APPELLEE PATRICK ANDERSON MURPHREE, M.D. Oral Argument Not Requested OF COUNSEL: Mark P. Caraway - MB #5860 Kimberly N. Howland - MB #9580 WISE CARTER CHILD & CARAWAY, PA 401 East Capitol St., 6th Floor P. O. Box 651 Jackson, MS Telephone: Facsimile: mpc@wisecarter.com knh@wisecarter.com

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representatives are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Jerry Bowen, Appellant 2. Cheryl Bowen, Appellant 3. New Hampshire Indemnity Company, Inc., Intervenor 4. Amory HMA, LLC d/b/a Gilmore Memorial Regional Medical Center, Appellee 5. Patrick Anderson Murphree, M.D., Appellee 6. Ned McDonald III, attorney for Appellants Jerry Bowen and Cheryl Bowen 7. Louise G. Baine, attorney for Amory HMA LLC 8. Stephen Kruger, attorney for Amory HMA LLC 9. Mark P. Caraway, attorney for Patrick Anderson Murphree, M.D. 10. Kimberly N. Howland, attorney for Patrick Anderson Murphree, M.D. 11. David Carney, attorney for Intervenor New Hampshire Indemnity Company, Inc. 12. Honorable Jim S. Pounds, Circuit Judge, Monroe County, Mississippi /s/ Kimberly N. Howland MARK P. CARAWAY KIMBERLY N. HOWLAND Attorneys for Appellee, Patrick Anderson Murphree, M.D. ii

3 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ii TABLE OF CONTENTS iii STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF ISSUES ON APPEAL STATEMENT OF THE CASE FACTUAL BACKGROUND AND PROCEDURAL POSTURE SUMMARY OF THE ARGUMENT ARGUMENT I. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT FOR THE DEFENDANTS AS PLAINTIFFS FAILED TO MEET THE DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT WITH AN EXPERT AFFIDAVIT SUPPORTING THEIR CLAIM OF LACK OF INFORMED CONSENT II. PLAINTIFFS FAILED TO ESTABLISH THE STANDARD OF CARE APPLICABLE TO DR. MURPHREE BY ADMISSIBLE EXPERT TESTIMONY Plaintiffs Cannot Establish the Standard of Care Through Dr. Murphree s Interrogatory Response III. IV. PLAINTIFFS FAILED TO ESTABLISH BREACH OF THE STANDARD OF CARE BY DR. MURPHREE PLAINTIFFS CLAIM ALSO FAILS FOR LACK OF PROXIMATE CAUSATION CONCLUSION CERTIFICATE OF SERVICE iii

4 TABLE OF AUTHORITIES Page Barner v. Gorman, 605 So. 2d 805, (Miss. 1992) Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265 (1986) Cleveland v. Hamil, 119 So.3d 1020, 1023 (Miss. 2013) Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997) Corey v. Skelton, 834 So. 2d 681, 684 (Miss. 2003) Drummond v. Buckley, 627 So. 2d 264, 267 (Miss. 1993) , 9 Dunn v. Yager, 58 So.3d 1171, 1200 (Miss. 2011) , 14 Erby v. N. Miss. Med. Ctr., 654 So. 2d 495, 500 (Miss. 1995) Estate ex rel. Campbell v. Calhoun Health Servs., 66 So.3d 129, 136 (Miss. 2011) Estate of Sanders v. U.S.A., 900 F. Supp. 2d 730, 733 (S.D. Miss. 2012) Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss. 2009) Foster v. Noel, 715 So. 2d 174, 180 (Miss. 1998) Galloway v. Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1987) Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007) Jamison v. Kilgore, 903 So. 2d 45, (Miss. 2005) Kelley v. Frederic, 573 So. 2d 1385, 1387 (Miss. 1990) McCaffrey v. Puckett, 784 So. 2d 197, 206 (Miss. 2001) Moore v. Memorial Hosp. of Gulfport, 825 So. 2d 658, 663 (Miss. 2002) Palmer v. Biloxi Reg l Med. Ctr., Inc., 564 So. 2d 1346, 1363 (Miss. 1990) Palmer v. Biloxi Reg l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990) iv

5 Sheffield v. Godwin, 740 So. 2d 854, 856 (Miss. 1999) Trustmark National Bank v. Meador, 81 So.3d 1112, 1116 (Miss. 2012) Univ. of Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1201 (Miss. 2012) Whittington v. Mason, 905 So. 2d 1261, 1266 (Miss. 2005) , 13 Wilborn v. Stennett, Wilkinson and Ward, 687 So. 2d 1205, 1214 (Miss. 1996) Wilbourn v. Stennett, Wilkinson and Ward, 687 So. 2d 1205, (Miss. 1996) Worthy v. McNair, 37 So.3d 609, 617 (Miss. 2010) v

6 STATEMENT REGARDING ORAL ARGUMENT Appellee Patrick Anderson Murphree, M.D., does not request oral argument. 1

7 STATEMENT OF ISSUES ON APPEAL I. WHETHER THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT FOR THE DEFENDANTS WHEN PLAINTIFFS FAILED TO MEET THE DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT WITH AN AFFIDAVIT FROM A QUALIFIED MEDICAL EXPERT. II. WHETHER THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT WHEN PLAINTIFFS FAILED TO ESTABLISH THE REQUIRED ELEMENTS OF A PRIMA FACIE CASE OF LACK OF INFORMED CONSENT. 2

8 STATEMENT OF THE CASE FACTUAL BACKGROUND AND PROCEDURAL POSTURE Plaintiffs allege that Dr. Patrick Anderson Murphree, M.D. ( Dr. Murphree ), an anesthesiologist, caused injury in the brachial plexus network of nerves of Jerry Bowen s right shoulder when he administered an interscalene nerve block during Mr. Bowen s rotary cuff surgery performed December 6, 2007, at Gilmore Memorial Regional Medical Center. (R.18) Dr. Murphree was an employee of Amory HMA, LLC d/b/a Gilmore Memorial Regional Medical Center at the time of the surgery in question. (R. 205) On October 17, 2014, Amory HMA, LLC, moved for summary judgment on Plaintiffs claims that the Amory HMA hospital staff failed to obtain informed consent from Mr. Bowen prior to the interscalene block. (R. 121) On November 18, 2014, Dr. Murphree filed its joinder in Amory HMA, LLC s Motion for Summary Judgment. (R. 164) Plaintiffs Response to the Defendants Motions abandoned all claims other than the informed consent claim. (R , T. 8) In contradiction to established Mississippi law, Plaintiffs did not respond to the Defendants Motions for Summary Judgment with an affidavit from a qualified medical expert setting forth the requisite standard of care relating to the disclosure of material risks of an interscalene block and/or establishing that Dr. Murphree had violated the claimed standard of care. Rather, Plaintiffs merely argued that Dr. Murphree s responses to interrogatories established the standard of care; and, that as Plaintiffs claimed Dr. Murphree did not inform them of the information contained in his interrogatory response, that they had met their burden of establishing a prima facie claim of lack of informed consent. Due to the Plaintiffs failure to designate a qualified medical expert to testify regarding the applicable 3

9 standard of care or breach of any such standard of care by Dr. Murphree, the trial court granted the Defendants Motions for Summary Judgment. (R. 277) Plaintiffs take this appeal. 4

10 SUMMARY OF THE ARGUMENT The evidentiary requirements applicable to a claim of lack of informed consent are no different than those of any other medical negligence claim. The Plaintiffs are required by Mississippi law to establish through expert testimony the claimed standard of care applicable to the physician regarding disclosure of the known material risks of the treatment, breach of that claimed duty to adequately inform the patient of the known material risks, and proof that a reasonable patient would have withheld consent if he or she had been properly informed, with the treatment being the proximate cause of the Plaintiff s claimed injury. In this case the trial court properly granted summary judgment because Plaintiffs failed to respond to the Defendants motions for summary judgment with sworn testimony from a qualified medical expert establishing the duty of disclosure required of Dr. Murphree regarding the risks and benefits of interscalene block anesthesia, or that Dr. Murphree failed to act as a reasonably prudent, minimally competent anesthesiologist in his disclosure of risks and benefits to Jerry Bowen. Accordingly the trial court properly granted judgment as a matter of law to the Defendants. 5

11 ARGUMENT Standard of Review This Court reviews a trial court s dismissal of an action on summary judgment de novo. Trustmark National Bank v. Meador, 81 So.3d 1112, 1116 (Miss. 2012). Thus, this Court must determine whether Plaintiffs Response to the Defendants Motions for Summary Judgment demonstrated specific facts establishing a genuine issue for trial. Miss. R. Civ. P. 56(e). If Plaintiffs failed to meet the Defendants Summary Judgment Motions with material facts as would be admissible in evidence this Court should affirm the trial court s ruling. Miss. R. Civ. P. 56(e). I. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT FOR THE DEFENDANTS AS PLAINTIFFS FAILED TO MEET THE DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT WITH AN EXPERT AFFIDAVIT SUPPORTING THEIR CLAIM OF LACK OF INFORMED CONSENT. Rule 56(c) of the Mississippi Rules of Civil Procedure states in relevant part that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (emphasis added). When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of its pleadings; rather, the non-movant s response must set forth specific facts showing a genuine issue for trial. Corey v. Skelton, 834 So. 2d 681, 684 (Miss. 2003). The party opposing summary judgment may not defeat the motion merely by making a general allegation or unsupported speculations or denials of fact. The non-movant may not defeat the motion merely by responding 6

12 with general allegations, but must set forth in an affidavit or otherwise, specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627 So. 2d 264, 267 (Miss. 1993). The non-movant s claim must be supported by more than a mere scintilla of colorable evidence; indeed, it must be evidence upon which a fair-minded jury could return a favorable verdict. Wilbourn v. Stennett, Wilkinson and Ward, 687 So. 2d 1205, (Miss. 1996). The party opposing summary judgment must be diligent and may not rest upon allegations or denials in the pleadings. Said party must set forth specific facts showing that there are genuine issues for trial. Moore v. Memorial Hosp. of Gulfport, 825 So. 2d 658, 663 (Miss. 2002). In other words, the non-moving party must rebut by producing significant probative evidence. Moore, 825 So. 2d at 863, quoting Foster v. Noel, 715 So. 2d 174, 180 (Miss. 1998). Summary judgment is mandated where the opponent has failed to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. Wilbourn, 687 So. 2d at 1214, quoting Galloway v. Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1987), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265 (1986). When a party who opposes summary judgment will bear the burden of proof at trial and fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law. Wilbourn, 687 So. 2d at 1214, quoting Galloway, 515 So. 2d at 684 (emphasis added). Mississippi law is clear that a physician owes the patient a duty to inform and obtain consent with regard to the proposed treatment. Palmer v. Biloxi Reg l Med. Ctr., Inc., 564 So. 2d 1346, 1363 (Miss. 1990). When a lack of informed consent is claimed, the plaintiff has the 7

13 burden to prove by a preponderance each element of a prima facie case: duty, breach of duty, proximate causation and injury. Dunn v. Yager, 58 So.3d 1171, 1200 (Miss. 2011). In the instant case, Plaintiffs were required to meet the Defendants Motions for Summary Judgment with testimony from a qualified medical expert establishing the claimed standard of disclosure to obtain informed consent and sworn expert testimony that Dr. Murphree breached that claimed standard of care in his disclosure to Jerry Bowen. It is undisputed that the Plaintiffs did not respond to the Defendants Motions for Summary Judgment with a sworn expert affidavit establishing the claimed standard of care or breach thereof by Dr. Murphree. II. PLAINTIFFS FAILED TO ESTABLISH THE STANDARD OF CARE APPLICABLE TO DR. MURPHREE BY ADMISSIBLE EXPERT TESTIMONY. In this case Plaintiffs allege Dr. Murphree had a duty to 1) explain to Mr. Bowen that the interscalene block that would be used as part of the anesthesia plan during his rotator cuff surgery carried the risk of permanent nerve damage; and 2) advise Mr. Bowen that an alternative to use of the interscalene block would be to perform the surgery without the block, using general anesthesia only. (Appellants Brief, p. 11) However, the duty of disclosure owed to patients by an anesthesiologist is a matter requiring the specialized knowledge of one familiar with the medical specialty of anesthesiology as this is not within the common knowledge of lay persons. Mississippi law requires physicians to disclose only material known risks. Jamison v. Kilgore, 903 So. 2d 45, (Miss. 2005). A known risk is one which would be known to a careful, skillful, diligent and prudent practitioner. Once known risks are enumerated, they can be evaluated as to which are material. Id. at The Mississippi Supreme Court has stated: Among the many factors which could weigh on the question of materiality are the frequency of occurrence, potential severity or danger associated 8

14 with the risk, and the cost and availability of an alternative procedure. These factors cannot be established absent expert testimony. Whittington v. Mason, 905 So. 2d 1261, 1266 (Miss. 2005) (emphasis added). It is undisputed that Plaintiffs failed to meet the Defendants motions for summary judgment with sworn testimony from a qualified medical expert establishing either that permanent nerve injury is in fact a material known risk of interscalene block anesthesia, or that a minimally competent, reasonably prudent anesthesiologist would have advised Mr. Bowen that rotator cuff surgery can be performed without the interscalene block with general anesthesia only. It is fundamental that Plaintiffs in medical negligence actions are required to establish the duty they claim was breached, and that this requires expert testimony. The expert must articulate an objective standard of care. Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss. 2009); Estate of Sanders v. U.S.A., 900 F. Supp. 2d 730, 733 (S.D. Miss. 2012) ( The expert must identify and articulate the requisite standard that was not complied with.. ) E.g., Cleveland v. Hamil, 119 So.3d 1020, 1023 (Miss. 2013); Univ. of Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1201 (Miss. 2012); Estate ex rel. Campbell v. Calhoun Health Servs., 66 So.3d 129, 136 (Miss. 2011); Worthy v. McNair, 37 So.3d 609, 617 (Miss. 2010); Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007); McCaffrey v. Puckett, 784 So. 2d 197, 206 (Miss. 2001); Sheffield v. Godwin, 740 So. 2d 854, 856 (Miss. 1999); Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997); Erby v. N. Miss. Med. Ctr., 654 So. 2d 495, 500 (Miss. 1995); Drummond v. Buckley, 627 So. 2d 264, 268 (Miss. 1993); Barner v. Gorman, 605 So. 2d 805, (Miss. 1992); Kelley v. Frederic, 573 So. 2d 1385, 1387 (Miss. 1990); Palmer v. Biloxi Reg l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990). 9

15 As Plaintiffs failed to establish the duty of care they claim was owed, their claim for lack of informed consent fails as a matter of law. Plaintiffs Cannot Establish the Standard of Care Through Dr. Murphree s Interrogatory Response. As Plaintiffs have no qualified medical expert to substantiate their claims, they attempt to establish the standard of care using Dr. Murphree s responses to Plaintiffs second set of interrogatories. Plaintiffs Interrogatory No. 2 and Dr. Murphree s Response is set forth below: (R. 211) INTERROGATORY NO. 2: Provide, in detail, all information you were required to provide to Jerry Bowen to obtain his informed consent prior to the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in Amory, Mississippi. RESPONSE: Objection is made to this Interrogatory to the extent that it requests expert opinions. Expert opinion testimony will be identified pursuant to Rule 26(b) of the Mississippi Rules of Civil Procedure. Without waiving any objection, I was required to describe my portion of the procedure and disclose material known risks. The information I provide to patients, including Mr. Bowen, prior to administering an interscalene block are described in Interrogatory No. 3. Such disclosure does comply with the applicable standard of care. (emphasis added) If one reads Plaintiffs Interrogatory No. 2 to ask Dr. Murphree to articulate the standard of care, Dr. Murphree asserted an appropriate objection and then provided the general statement that he was required to describe my portion of the procedure and disclose material known risks. The response does not attempt to articulate the known risks of interscalene block or to delineate which of the known risks Dr. Murphree believes to be material. 10

16 Although Plaintiffs claims Dr. Murphree did articulate the standard of care in his response to Interrogatory No. 3, this argument also fails. Plaintiffs Interrogatory No. 3 and Dr. Murphree s Response states: (R. 212) INTERROGATORY NO. 3: Provide, in detail, the information you allege you provided, whether in writing or verbally, to Jerry Bowen prior to the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in Amory, Mississippi. RESPONSE: The written portion of the disclosure is the Consent for Anesthesia Services that was signed by Mr. Bowen. The verbal portion of informed consent that I perform with regard to an interscalene block includes explaining its purpose, which is discussed in detail in my deposition. A patient of mine undergoing such a block would be informed that the block helps alleviate pain within the first eighteen to twenty-four hours of the postoperative period. The block also helps controls the blood pressure when the surgeon operates; an increase in blood pressure can cause bleeding into the shoulder joint and obscure the surgeons view. Employing an interscalene block allows us to use less general anesthesia, which has its own risks that I explained. An alternative would be to use only general. The risks of an interscalene block that I disclose include: 1. The accidental injection of medication into a blood vessel could result in a seizure or cardiac toxicity. 2. Temporary side effects including, hoarseness, bloodshot eyes and drooping of the eyelid on the side of the block; 3. The block usually has a temporary effect on the diaphragm; rarely, this can result in shortness of breath; 4. Paresthesias (numbness, tingling or burning) for up to several weeks; 5. Pneumothorax from puncture of the lungs; 6. Spinal or epidural injection of the local anesthetic with resulting temporary paralysis and low blood pressure; and 7. 1 in 5,000 to 10,000 chance of permanent nerve damage. 11

17 Nowhere in Dr. Murphree s Response No. 3 does he state that the entirety of the information he provides to patients is required by the standard of care. Dr. Murphree s advising of patient regarding the risks and benefits of interscalene block could greatly exceed the information a minimally competent, reasonably prudent anesthesiology practitioner would provide. Plaintiffs cannot use Dr. Murphree s description of the information he provides to patients as the articulation of the standard of care in the absence of testimony or a sworn interrogatory response from Dr. Murphree that he provides disclosure of only material known risks. Additionally, and of obvious significance, Dr. Murphree s interrogatory response clearly states that the disclosure he provided does comply with the standard of care. (R. 211) III. PLAINTIFFS FAILED TO ESTABLISH BREACH OF THE STANDARD OF CARE BY DR. MURPHREE. At the summary judgment stage the non-movant bears the burden of production as to any element of his claim for which he bears the burden of proof at trial. Wilborn v. Stennett, Wilkinson and Ward, 687 So. 2d 1205, 1214 (Miss. 1996). The record in this case is utterly devoid of any sworn, admissible proof as to breach of the duty the Bowens allege was owed. The Breach of Duty section of Appellants brief consists of one paragraph on page 11 which refers only to the unsworn and unsubstantial allegations in the Complaint. This is the classic case of a non-movant opposing summary judgment by use of general allegations and mere reference to the pleadings, which fails as a matter of law. Additionally, this total absence of proof demonstrates the fallacy of Plaintiffs attempt to conjure support for their claims using only Dr. Murphree s 12

18 interrogatory responses. Those responses clearly state Dr. Murphree s position that the information he provided Mr. Bowen met the applicable standard of care. (R. 211) The case of Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005) is instructive. In Whittington, a vasectomy patient brought an informed consent medical malpractice action against the urologist who performed his vasectomy which ultimately resulted in the removal of the plaintiff s testicle. The informed consent claim was the only claim remaining at the time of trial. However, the plaintiffs did not call an expert at trial to establish the material risks that should have been disclosed in order to obtain informed consent. The Supreme Court stated: The record in the case sub judice indicates that there were several risks of the vasectomy which the Whittingtons claim were not disclosed. However, the Whittingtons produced no expert testimony to establish that these risks were material and should have been disclosed. Thus, the Whittingtons claim of lack of informed consent must fail. Id. at In this case, because Plaintiffs failed to produce expert testimony to establish both the duty of Dr. Murphree and the breach of that duty, Plaintiffs claims as to lack of informed consent must fail as a matter of law. IV. PLAINTIFFS CLAIM ALSO FAILS FOR LACK OF PROXIMATE CAUSATION. Plaintiffs have also failed to establish the elements of proximate cause in a lack of informed consent claim. The proximate causation test in this setting requires proof of two subelements: First, the plaintiff must show that a reasonable patient would have withheld consent had he or she been properly informed of the risks alternative and so forth... and second, the plaintiff must show that the treatment was the proximate cause of the worsened condition (i.e., injury). 13

19 That is, the plaintiff must show that he or she would not have been injured had the appropriate standard of care been exercised. Dunn v. Yager, 58 So.3d 1171, 1201 (Miss. 2011). Here, Plaintiffs have done nothing to address the reasonable patient, objective standard which requires Plaintiffs to show that an adequately informed patient would have withheld consent for the interscalene block. As Plaintiffs failed to establish risk of permanent nerve injury as a material risk, it follows that Plaintiffs have also failed to establish that a reasonable patient, after having been adequately informed, would have withheld consent for the interscalene block. To the contrary, Plaintiffs simply state the obvious conclusion that had they known permanent nerve damage was a risk, Mr. Bowen himself would not have consented because of his occupation, which required use of his shoulder to perform overhead work. This is simply not the test. Nor is this subjective, self-serving position credible. Although Plaintiffs contend that the risk of permanent nerve damage was not discussed with them by Dr. Murphree, Plaintiffs do not dispute executing the written Consent for Anesthesia Services which clearly provides: (R. 209) It has been explained to me that all forms of anesthesia involve some risks and no guarantees or promises can be made concerning the results of my procedure or treatment. Although rare, unexpected severe complications with anesthesia can occur and include the remote possibility of infection, bleeding, drug reactions, blood clots, loss of sensation, loss of limb function, paralysis.... Dr. Murphree admits that Plaintiffs proffered opinion testimony to the trial court regarding the issue of whether Mr. Bowen s shoulder injury was caused by the interscalene block. However, such testimony is of no moment given Plaintiffs failure to address every other element of a lack of informed consent claim with appropriate evidence. 14

20 CONCLUSION Dr. Murphree and his employer, Amory HMA, LLC d/b/a Gilmore Memorial Regional Medical Center respectfully submit that this Court should affirm the Circuit Court s grant of summary judgment as Plaintiffs failed to establish the required elements of a claim of lack of informed consent as set forth in Mississippi law. Dated this the 4th day of November, Respectfully submitted, PATRICK ANDERSON MURPHREE, M.D. BY: s/ Kimberly N. Howland MARK P. CARAWAY (MB NO. 5860) KIMBERLY N. HOWLAND (MB NO. 9580) His Attorneys OF COUNSEL: WISE CARTER CHILD & CARAWAY, P.A. 401 East Capitol Street, Suite 600 Post Office Box 651 Jackson, Mississippi Telephone: Facsimile: mpc@wisecarter.com knh@wisecarter.com 15

21 CERTIFICATE OF SERVICE I, Kimberly N. Howland, do hereby certify that I have this day electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Ned Tres McDonald, III, Esq. MCDONALD LAW FIRM, PLLC 111-D Town Creek Drive Saltillo, Mississippi Louis G. Baine, III, Esq. Stephen Kruger, Esq. PAGE KRUGER & HOLLAND Post Office Box 1163 Jackson, Mississippi David L. Carney, Esq. MARKOW WALKER, P.A. Post Office Box Jackson, Mississippi I have also mailed a true and correct copy of the Appellee s Brief to the Trial Court Judge by placing same in the United States Mail, postage prepaid to the following address: Judge James Pounds Trial Court Judge P.O. Box 316 Booneville, MS THIS the 4th day of November, s/ Kimberly N. Howland KIMBERLY N. HOWLAND 16