E-Filed Document Dec :16: IA SCT Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI CIVIL ACTION NO.

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1 E-Filed Document Dec :16: IA SCT Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI FAWAZ ABDRABBO, MD. APPELLANT VS. CIVIL ACTION NO IA SCT AUDRAY (ANDRES) JOHNSON (PRO SE) APPELLEE INTERLOCUTORY APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI BRIEF OF APPELLANT ORAL ARGUMENT NOT REQUESTED Whitman B. Johnson III, Esq. (MSB # 3158) wjohnson@curriejohnson.com Michael F. Myers, Esq. (MSB # 3712) mmyers@curriejohnson.com Currie Johnson & Myers, P.A River Oaks Drive P.O. Box 750 Jackson, MS Telephone: Facsimile: Counsel for Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI FAWAZ ABDRABBO, MD. APPELLANT VS. CIVIL ACTION NO IA SCT AUDRAY (ANDRES) JOHNSON (PRO SE) APPELLEE CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that all listed persons have an interest in the outcome of this case. The representations are made in order that the Justices of this Court may evaluate possible disqualifications or recusal. 1. Hon. Judge Winston L. Kidd, Circuit Judge 2. Fawaz Abdrabbo, M.D. Appellant 3. Whitman B. Johnson, III, Counsel for Appellant 4. Michael F. Myers, Counsel for Appellant 5. Audray (Andres) Johnson, Appellee 6. Hinds Behavioral Health Services 7. Wade Manor, Counsel for Hinds Behavioral Health Services Fawaz Abdrabbo, M.D. By: s/ Whitman B. Johnson, III Whitman B. Johnson, III (MSB #3158) [i]

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 STATEMENT OF ASSIGNMENT...2 STATEMENT OF THE CASE...3 SUMMARY OF THE ARGUMENT...9 ARGUMENT...10 CONCLUSION...15 CERTIFICATE OF SERVICE...16 [ii]

4 TABLE OF AUTHORITIES Cases Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1281 (Miss. App. 2002) Brown v. Baptist Memorial Hospital Desoto, Inc., 806 So.2d 1131, 1134 (Miss. 2002) Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997) Dethlefs v. Beaumaison Development Corp., 511 So.2d 112, 118 (Miss. 1987) Hubbard v. Wansley, 954 So.2d 951, 956 (Miss. 2007)... 10, 11 Jones v. MEA, Inc., 160 So.2d 241 (Miss. App. 2015) Mallet v. Carter, 803 So.2d 504 (Miss. App. 2002) Sanders v. Wiseman, 29 So.3d 138, 144 (Miss. App. 2010) Smith v. Gilmore Memorial Hospital, Inc., 952 So.2d 177, 180 (Miss. 2007)... 10, 15 Winters v. Wright, 869 So.2d 357, 364 (Miss. 2003) [iii]

5 STATEMENT OF THE ISSUES Where a defendant in a medical malpractice action has filed a motion for summary judgment supported by the affidavits of qualified experts who testified that there was no breach of the standard of care and no injury to the plaintiff, can the plaintiff create a genuine issue of material fact and avoid summary judgment solely through the affidavit of a retained expert which: (1) specifically states that the expert has not reviewed all pertinent records, most importantly including those of the Defendant; (2) does not offer an opinion one way or the other as to whether the Defendant deviated from the standard of care; and (3) offers no opinions that the defendants actions were a proximate cause of any injury to the plaintiff. [1]

6 STATEMENT OF ASSIGNMENT This case presents no novel issues but requires only the straightforward application of existing and well-established Mississippi law. While this might ordinarily call for assignment of this matter to the Mississippi Court of Appeals, the Appellant respectfully submits that in light of the plaintiff s pro se status and the numerous motions filed as a result thereof, it would be in the best interest of judicial economy and finality if this matter were retained by the Mississippi Supreme Court. [2]

7 STATEMENT OF THE CASE This Court granted Appellant s petition for interlocutory appeal from an Order of the Hinds County Circuit Court, Judge Winston Kidd, denying the motion for summary judgment of Dr. Fawaz Abdrabbo with regard to the plaintiff s pro se complaint for alleged medical malpractice. A. COURSE OF PROCEEDINGS The plaintiff instituted this pro se action May 13, 2014, against Dr. Fawaz Abdrabbo and Hinds Behavioral Health Services arising out of their treatment of plaintiff for his schizoaffective disorder. His complaint requested compensatory and punitive damages and also sought a fully paid health insurance policy for the rest of his life and a fully paid $10,000, whole life insurance policy to be paid for by defendants. (R. 8) On August 8, 2014, plaintiff filed a motion to disregard requirement of having a medical expert based on his desire to invoke the doctrine of res ipsa loquitur. (R. 32) The defendant responded to this motion setting forth the reasons why the law required expert testimony in this case and why the doctrine of res ipsa loquitur was not applicable to this case. (R. 43) Hinds Behavioral Health Services filed its motion to dismiss based on the statute of limitations on September 10, (R. 68) On October 9, 2014, attorney Felecia Perkins entered an appearance on behalf of the plaintiff, (R. 84) only to file a motion to withdraw as counsel approximately one month later, on November 13, (R. 113) The court granted her motion to withdraw on November 18, (R. 119) Plaintiff has proceed pro se since then. Dr. Abdrabbo filed his motion for summary judgment (R. 86) on October 15, 2014, which was scheduled to be heard December 4, 2014, before Judge William Gowan. (Hinds Behavioral Health Services filed a joinder in the motion on October 24, (R. 107)) However, on November 21, 2014, plaintiff filed a motion to recuse Judge Gowan, accusing him [3]

8 of being abusive and rude and of moving the case along too quickly. (R. 128) He also filed at that time a motion for more time to appoint a medical expert, claiming that he had an expert on standby and listing the name and telephone number of a national expert witness referral service. (R. 132) Judge Gowan ruled on plaintiff s motion for recusal on November 24, 2014, stating [t]he undersigned having bent over backwards to explain to the plaintiff in great detail the requirements of a medical malpractice case, i.e., the specific requirement of a medical expert, and plaintiff having perceived this as being abusive and rude, the undersigned, so as to avoid any misconceived ideas regarding unfairness of the undersigned or the judicial process hereby recuses himself from the above-styled and numbered cause of action. (R. 143) The case was thereafter reassigned to Judge Winston Kidd. The defendant reset his motion for summary judgment for hearing before Judge Kidd on February 19, Plaintiff filed the Affidavit of Dr. Shobhit Negi on February 9, 2015, although no supporting memorandum was filed in response to defendant s motion. (R. 160) The defendant filed a rebuttal in support of his motion for summary judgment following the filing of Dr. Negi s affidavit, pointing out to the Court that the affidavit was insufficient in that it was, by Negi s own admission, not based on the complete medical records, did not say that the standard of care was breached and was void of any causal connection between any actions of the defendant and any alleged damages of the plaintiff. (R. 180) At the hearing on defendant s motion on February 19, 2015, Judge Kidd heard arguments from all parties, and stated he would review the motions and issue a ruling. (T. 69) On April 7, 2015, plaintiff filed a subsequent memorandum with the Court, the only purpose of which was to complain about the length of time required to resolve a frivolous issue which apparently referred to the defendant s pending motion for summary judgment. (R. 213) [4]

9 On April 21, 2015, Judge Kidd entered an Order giving the plaintiff 60 days to designate a medical expert or his case would be dismissed. (R. 216) Plaintiff filed a Designation of Experts on April 27, 2015, attaching the same exact Affidavit of Dr. Negi that was filed February 9, (R. 218) Dr. Abdrabbo filed a motion to strike this designation May 6, 2015, along with his renewed motion for summary judgment. (R. 242) Mr. Johnson subsequently filed four requests for a status hearing on May 8, 2015 (R. 258), August 26, 2015 (R. 264), November 18, 2015 (R. 267), and February 18, 2016 (R. 270). Judge Kidd then entered his Order denying the motion for summary Judgment on March 30, 2016, based on the conclusion there were genuine issues of material fact which precluded summary judgment. (R. 274) This Court granted Appellant s petition to seek interlocutory appeal from that Order on June 14, B. UNDERLYING FACTS Dr. Abdrabbo is a psychiatrist, and an independent contractor working under contract with Hinds Behavioral Health Services, who took over the treatment of Mr. Johnson for his schizoaffective disorder in August, Mr. Johnson had been previously prescribed and maintained on lithium for that disorder by a prior treating psychiatrist for nearly 10 years. Mr. Johnson had a separate primary care doctor who monitored and treated his other medical conditions. (R. 94) For patients initially receiving lithium treatment, monitoring of kidney function is recommended approximately every 6 months, but yearly monitoring is considered reasonable and acceptable for patients who have been successfully maintained on lithium treatment for some time, as Mr. Johnson had been when Dr. Abdrabbo took over his care. For that reason, Dr. Abdrabbo was monitoring his kidney function, on approximately a yearly basis along with more frequent monitoring of lithium levels to make sure it was staying at a therapeutic level. (R. 94) [5]

10 Hinds Behavioral Health System does not have in-house capabilities to conduct the blood tests necessary to monitory Mr. Johnson s kidney function, such that the actual administering of the tests was performed by Mr. Johnson s primary care doctor, who would report his lab results back to Dr. Abdrabbo. In addition to the prior testing, Mr. Johnson s records for the relevant period show that he had blood work drawn in April of 2012 and January of 2013 in order to check his kidney function. There is no indication in any of his records that he had any abnormal findings with regard to his kidney function up through and to April 2012, when his primary care doctor, Dr. Quinn, noted that his lab results reflected normal kidney function. In January, 2013, though, Mr. Johnson s lab results indicated a slight elevation in his creatinine level as well as his lithium level, so Dr. Abdrabbo instructed the staff at Hinds Behavioral Health Services to contact Mr. Johnson and have him come in and discuss the results. (R ) Dr. Abdrabbo discussed with Mr. Johnson that his creatinine level was 1.7, slightly above the normal range of , and that his lithium level was at 1.5, which again was slightly above the normal range 0.6 to 1-2. It was explained that the deviations were so slight they could be due to diet, dehydration or other factors, and were not necessarily indicative of any problems with his kidneys. (R. 95) It was also discussed with Mr. Johnson at that time that he had a GFR or glomerular filtration rate of 47, which is not an actual lab value but is a calculation based on other lab values. That calculation, however, must be adjusted for factors such as race and gender putting his at 56, just below the normal range of anything over 60. A one-time indication of a decreased GFR is not indicative of chronic kidney disease. (R ) Dr. Abdrabbo told Mr. Johnson to lower his lithium dosage and have his labs drawn again, which was done later that month. The subsequent lithium level showed that his lithium had returned back within the expected therapeutic range at 0.8. Although his creatinine level [6]

11 had not changed by the time the bloodwork was done later that same month, it was reduced by the time his blood work was next drawn in June, 2013, at which point his GFR had gone back to a normal level after adjustment for his race and gender. (R. 95) Dr. Abdrabbo saw Mr. Johnson in March, 2013, and in April, 2013, noting that he was at his usual baseline for his lithium. Mr. Johnson was scheduled to return to see Dr. Abdrabbo two months later, but never came back to see him. (R. 95) Dr. Abdrabbo s motion for summary judgment was supported by the medical records of Mr. Johnson (filed under seal with the Court) which supported the facts shown, as well as Dr. Abdrabbo s own affidavit (R. 94) regarding his care and treatment and the affidavits of Dr. Andrew Bishop (R. 97) and Dr. Wilson Parry (R. 100). Dr. Bishop is a psychiatrist whose affidavit testimony showed Dr. Abdrabbo s monitoring regime to be within the standard of care and showed that Dr. Abdrabbo responded appropriately when the lab results in January, 2013, indicated slight elevations of the lithium and creatinine levels. (R ) Dr. Abdrabbo testified, as did Dr. Parry, a specialist in nephrology (the function of the kidney and diseases of the kidney) that Mr. Johnson did not have any irreversible damage to his kidneys, and never had, as Mr. Johnson claims, kidney failure. He also explained that the temporary change in his lab values was not even attributable to the lithium, but likely his high blood pressure. (R ) Dr. Parry further opined that Mr. Johnson s blood pressure medicine contains a diuretic which can add to dehydration, which would effectively raise Mr. Johnson s creatinine level, resulting in an acute but temporary reduction in his GFR. As Dr. Parry noted, Mr. Johnson s January, 2013, creatinine level of 1.7 and an adjusted GFR of just below 60 was not indicative of past, present or future kidney failure. (R. 102) [7]

12 In response to the defendant s motion and supporting affidavits, Mr. Johnson finally filed the affidavit of Dr. Shobhit Negi (R. 160), a psychiatrist, who, according to his own affidavit, did not have Mr. Johnson s complete records. (R. 162) Nonetheless, his affidavit, even with incomplete information, does not state that Dr. Abdrabbo violated any standard of care or that anything that Dr. Abdrabbo did or didn t do was the proximate cause of any injury to Mr. Johnson. Indeed, Dr. Negi notes that a patient on lithium should have kidney function monitored every 6 months to a year, just as Dr. Abdrabbo was doing. As noted, Mr. Johnson had lab work done in April, 2012, showing normal kidney function as noted by his primary care doctor. Dr. Abdrabbo ordered and suggested lab work again in September of 2012, which the plaintiff did not have performed until January, 2013, far less than a year after his last lab work. Dr. Negi also notes that between 2009 and 2012, Mr. Johnson s primary care doctors ordered BUN and creatinine studies 5 times although all of the results were apparently not made available to Dr. Negi by Mr. Johnson when he hired Dr. Negi. this: With regard to whether Dr. Abdrabbo violated any standard of care, Dr. Negi said only Forming an opinion regarding Dr. Abdrabbo deviating from the standard of care in monitoring Mr. Johnson s kidney functions while prescribing him lithium can be made after I have reviewed Dr. Abdrabbo s records on Mr. Johnson. (R. 162) Despite a thirteen month lapse between the first filing of Dr. Negi s affidavit and the court s ruling on the motion for summary judgment, Dr. Negi never supplemented his opinions. [8]

13 SUMMARY OF THE ARGUMENT Mississippi law is clear that in order to prevail in a case alleging medical negligence, the Plaintiff must present expert testimony that the defendant doctor breached the applicable standard of care and that this breach was the proximate cause of plaintiff s alleged injuries. Dr. Abdrabbo s motion for summary judgment was supported by his affidavit and that of another psychiatrist, Dr. Andrew Bishop, and of a kidney specialist (nephrologist), Dr. Wilson Parry. Dr. Abdrabbo s motion and supporting affidavits demonstrated that there was no genuine issue of fact and that Dr. Abdrabbo s monitoring of Mr. Johnson s lithium levels and kidney function was appropriate and within the standard of care, and further that Mr. Johnson did not have kidney failure as he claimed and that any temporary change in the laboratory values associated with his kidney function were not even as a result of his lithium treatment. Mississippi law required Mr. Johnson to present expert testimony from qualified physician to present qualified and supported opposing opinions if he wanted to avoid summary judgment. The only thing he submitted was the affidavit of Dr. Negi, which was totally insufficient to defeat defendant s motion. Dr. Negi did not offer an opinion one way or the other as to whether Dr. Abdrabbo breached the standard of care in his monitoring of Mr. Johnson. Although Dr. Negi would not have been qualified to offer any opinions as to whether Mr. Johnson had any damage to his kidney function and whether such damage was caused by Dr. Abdrabbo s treatment, he did not offer an opinion in this area either. [9]

14 Although the trial court correctly recognized that Mr. Johnson required expert testimony on these issues in order to defeat defendant s motion for summary judgment, the trial court incorrectly determined that there was a genuine issue of material fact which precluded summary judgment in its March 30, 2016, Order, entered more than 13 months after the motion for summary judgment was heard. Under the circumstances of this case, where plaintiff failed to present qualified expert testimony at the summary judgment stage to establish the same elements he would be required to prove at trial, summary judgment was mandated by Mississippi law. Smith v. Gilmore Memorial Hospital, Inc., 952 So.2d 177, 180 (Miss. 2007). This Court should therefore reverse the trial court s Order and render judgment in favor of Dr. Abdrabbo. ARGUMENT A. STANDARD OF REVIEW In reviewing the grant or denial of summary judgment by a trial court, this Court applies a de novo standard of review. Summary judgment is appropriate when the evidence is considered in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Hubbard v. Wansley, 954 So.2d 951, 956 (Miss. 2007). That standard is not affected by the fact that the plaintiff has chosen to represent himself. This court will not give deference to a person who chooses to represent himself. Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1281 (Miss. App. 2002). Pro se parties are held to the same rules of procedure and substantive law as represented parties. Dethlefs v. Beaumaison Development Corp., 511 So.2d 112, 118 (Miss. 1987). This is likewise true in the context of a medical malpractice action. Jones v. MEA, Inc., 160 So.2d 241 (Miss. App. 2015). [10]

15 B. THE TRIAL COURT ERRED IN DENYING DR. ABDRABBO S MOTION FOR SUMMARY JUDGMENT Although Mr. Johnson s pro se complaint rambles a bit, the gist of his claim was that the defendants did not properly monitor the lithium he was taking and that this resulted in some damage to his kidney function. (R. 9) In order to establish his prima facia case, Mississippi law required Mr. Johnson to prove the following elements: (1) the existence of a duty by the Defendant to conform to a specific standard of conduct; (2) a failure to conform to the required standard; and (3) to prove that he sustained an injury and that it was proximately caused by the Defendant s breach of duty. Hubbard v. Wansley, 954 So.2d 951, (Miss. 2007). This Court further made it clear in Wansley that in order to prove these elements, expert testimony must be used that not only identifies and articulates the standard of care that was not complied with, but also that the standard was breached and that the breach was the proximate cause of the alleged injury. Id. at 957. This was without a doubt a case which required expert testimony in order for Mr. Johnson to avoid summary judgment. This was made plain to Mr. Johnson by Judge Gowan at a hearing on October 1, 2014, when he explained the medical expert requirement to the plaintiff. Mr. Johnson brought his motion to disregard the requirement of a medical expert 1, in response to 1 Although Mr. Johnson filed a motion to disregard requirement of having a medical expert on the basis that the plaintiff would like to invoke a legal doctrine known as res ipsa loquitur (emphasis in original), this was clearly not a case in which the doctrine applies. As this Court has noted, the doctrine of res ipsa loquitur is generally only applied in medical negligence cases where a foreign object has been left in a patient during surgery. Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997). The doctrine cannot be used to excuse the plaintiff s requirement of proving negligence, and does not apply when there has been specific proof to show that there was some reasonable explanation for the event in question other than the alleged negligence of the defendant. Winters v. Wright, 869 So.2d 357, 364 (Miss. 2003). The doctrine clearly had no application in this case where the defendant s motion for summary judgment was supported by the affidavits of two physicians in addition to Dr. Abdrabbo, which demonstrated both that there was no negligence by Dr. Abdrabbo and no injury to the plaintiff as a result of anything Dr. Abdrabbo may or may not have done. It was also not the basis of the trial court s denial of the motion for summary judgment. [11]

16 which Judge Gowan patiently explained the plaintiff s burden of proof and the requirement for expert testimony. (T.19-20) Mr. Johnson said he understood and in fact represented to the Court at that time that he had a medical expert in line. (T ) Judge Gowan clearly explained this requirement again and again to Mr. Johnson throughout the hearing. (T. 23, 34, 38-43) This was again reflected in Judge Gowan s recusal order. (R. 143) However, despite Judge Gowan s clear instructions as to not only the necessity of a medical expert, but what the expert s opinion must contain, the affidavit of Dr. Negi filed by Mr. Johnson February 9, 2015, fell far short of those instructions and the requirements of Mississippi law. The deficiencies in Dr. Negi s affidavit were made clear to Mr. Johnson in Dr. Abdrabbo s rebuttal in support of his motion for summary judgment. (R. 180) Following the February 19, 2015, hearing on the summary judgment motion, the Court entered an Order April 21, 2015, instructing Mr. Johnson that his case would be dismissed if he did not designate a medical expert within 60 days. That Order specifically stated that expert testimony was needed to establish a case of medical negligence. In response, Mr. Johnson filed the exact same affidavit of Dr. Negi which, again, did not state that Dr. Abdrabbo violated the standard of care, and in fact stated that he was not even offering an opinion on that issue at that time. His affidavit also failed to establish any causal link between Dr. Abdrabbo s care and any alleged kidney damage (which Dr. Negi would not even be qualified to testify about). In response to this second filing of Dr. Negi s affidavit, Dr. Abdrabbo filed a motion to strike the expert designation and renewed his motion for summary judgment, again pointing out to the court and Mr. Johnson the deficiencies in Dr. Negi s affidavit. Despite repeatedly being told by the Court and the Defendant s filings of what he had to do in order to successfully oppose Dr. Abdrabbo s motion for summary judgment, the fact is that Mr. Johnson never submitted expert testimony sufficient to defeat Dr. Abdrabbo s motion for summary judgment. [12]

17 Defendant supported his motion for summary judgment with documentation of plaintiff s treatment (only some of which was apparently reviewed by plaintiff s expert, Dr. Negi), his own affidavit testimony, and the affidavit testimony of Dr. Andrew Bishop, a local psychiatrist, and Dr. Wilson Parry, a local nephrologist. The defendant s motion demonstrated that Dr. Abdrabbo s monitoring of Mr. Johnson s lithium levels and kidney function were well within the standard of care, that he responded appropriately when tests in January, 2013, showed slight deviations from the normal range of the applicable tests, that Mr. Johnson suffered no permanent loss of kidney function, and in fact that the temporary deviation in Mr. Johnson s tests relating to kidney function were more likely than not unrelated to the lithium he was receiving. It was incumbent upon the plaintiff to respond to this motion with sworn expert testimony refuting these facts. He did not do so. This Court has recognized that a plaintiff, in order to prevail in a medical malpractice action, must establish through expert testimony both that the physician deviated from the standard of care and that any such deviation was the proximate cause of the injury of which plaintiff complains. Brown v. Baptist Memorial Hospital Desoto, Inc., 806 So.2d 1131, 1134 (Miss. 2002). Dr. Negi s affidavit does not state that Dr. Abdrabbo violated the standard of care applicable to a psychiatrist. In fact, Dr. Negi s affidavit was quite clear that he had not even formed an opinion on the issue because he had not reviewed all of Dr. Abdrabbo s records on Mr. Johnson. 2 The trial court s March 30, 2016, Order denying summary judgment, based on the Court s incorrect determination that there was a genuine issue of fact, is unsupported by the 2 The plaintiff had more than ample opportunity to get these records to Dr. Negi for his review before the hearing on the summary judgment motion on February 19, 2015, and before the court ruled on March 30, [13]

18 long-standing law of this state. Although the trial court correctly recognized that the Plaintiff had to have supporting expert testimony in order to avoid dismissal of his case, the Court overlooked the substance of that expert s testimony in determining whether a triable question of fact existed. Merely filing an expert affidavit does not create a triable question of fact if that affidavit does not satisfy the plaintiff s burden of proof with regard to both negligence and causation. In Mallet v. Carter, 803 So.2d 504 (Miss. App. 2002), the Court of Appeals affirmed the trial court s grant of summary judgment in a medical malpractice action in which the defendant s motion for summary judgment was opposed by the plaintiff with the affidavit of an expert. The court of appeals noted that the affidavit of plaintiff s expert physician both failed to identify the applicable standard of care (although claiming that the defendant doctor violated some undisclosed standard) and failed to provide any evidence that any alleged breach of the standard of care caused the death of the plaintiff s child. The court of appeals therefore affirmed the grant of summary judgment to the defendant. See also Sanders v. Wiseman, 29 So.3d 138, 144 (Miss. App. 2010) (even an expert affidavit which does opine that the defendant doctor violated the standard of care is insufficient to defeat summary judgment where it is merely conclusory). In this matter, Dr. Negi s affidavit plainly states that he is not offering any opinion on whether Dr. Abdrabbo breached any standard of care. While not required to present any evidence to the contrary, Dr. Abdrabbo did support his motion with the affidavit of another psychiatrist and a nephrologist who both offered the opinion that his care and treatment of Mr. Johnson was within the standard of care. There is simply nothing in the record to support the trial court s conclusion that there is a genuine issue of material fact as to this threshold question. If there was no breach of the standard of care, there is no cause of action. [14]

19 The trial court s error is further compounded by the fact that Dr. Negi s affidavit did not tie any of Dr. Abdrabbo s action to any alleged injury of the plaintiff. In fact, Dr. Negi s affidavit does not even establish that there was a medically cognizable injury to Mr. Johnson. 3 Simply stated, the evidence that Dr. Abdrabbo did not violate the standard of care is uncontradicted. The evidence that nothing Dr. Abdrabbo did caused any injury to Mr. Johnson is likewise uncontradicted. This Court has held that summary judgment is mandated where the respondent, in this case Mr. Johnson, has failed to make a showing sufficient to establish the existence of an essential element of his case on which he would bear the burden of proof at trial. Smith v. Gilmore Memorial Hospital, Inc., 952 So.2d 177, 180 (Miss. 2007). Mr. Johnson bears the burden of proof at trial, and at the summary judgment stage, both of proving that Dr. Abdrabbo breached the standard of care and that his breach was the proximate cause of injury to Mr. Johnson. It cannot be seriously argued that Mr. Johnson satisfied his burden in this regard through the affidavit of Dr. Negi. It was therefore clear error on the part of the trial court to find that there was a genuine issue of material fact and to deny Dr. Abdrabbo s motion for summary judgment. CONCLUSION The court below plainly erred as a matter of law in determining that where was a genuine issue of material fact, where the plaintiff failed to support his claim of medical malpractice with expert testimony on either the issue of breach of the standard of care or causation of plaintiff s 3 Dr. Negi would also not be qualified to offer an opinion in this area, as he is a psychiatrist. The affidavit of Dr. Parry, a nephrologist, establishes both that Mr. Johnson did not have kidney failure as he claims and that the temporary change in the lab values reflecting his kidney function were not related to his lithium levels in any case. Although Dr. Negi would not be qualified to testify on these issues, his affidavit does not even attempt to. [15]

20 alleged injury. Dr. Abdrabbo therefore respectfully asks the Court to reverse the trial court s order and render judgment in his favor. This the 22 nd day of December, Respectfully submitted, FAWAZ ABDRABBO, M.D. BY: s/michael F. Myers Whitman B. Johnson III (MSB No.: 3158) Michael F. Myers (MSB No.: 3712) OF COUNSEL: CURRIE JOHNSON & MYERS, P.A River Oaks Drive (39232) Post Office Box 750 Jackson, MS Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Wade Manor, Esquire P. O. Box Jackson, MS And I have mailed and ed a copy of the above and foregoing document to: Audray Johnson 109 Colonial Circle Jackson, MS imforjah@bellsouth.net (Pro Se Appellee) And I have mailed a copy of the above and foregoing document to: Honorable Judge Winston L. Kidd Hinds County Circuit Court P. O. Box 327 Jackson, MS [16]

21 This the 22 nd day of December, s/michael F. Myers Michael F. Myers [17]