BRIEF OF APPELLEES, DIMITRIOS DIMITRIADES, M.D. AND MEMORIAL HOSPITAL AT GULFPORT

E-Filed Document Sep 10 2015 16:53:47 2014-CA-01106 Pages: 27 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAROL GRAY APPELLANT VERSUS NO.: 2014-CA-01106 JIMMY DIMITRIADES, M.D., MEMORIAL HOSPITAL AT GULFPORT and TODD FRIEZE, M.D. APPELLEES BRIEF OF APPELLEES, DIMITRIOS DIMITRIADES, M.D. AND MEMORIAL HOSPITAL AT GULFPORT Appeal from the Circuit Court of Harrison County, Mississippi Honorable Lawrence P. Bourgeois, Jr. ORAL ARGUMENT NOT REQUESTED Attorney for Appellees, Dimitrios Dimitriades, M.D. and Memorial Hospital at Gulfport Roland F. Samson, III Mississippi Bar No. 8764 Samson & Powers, PLLC Post Office Box 1417 Gulfport, Mississippi 39502-1417 Telephone: (228) 822-1109 Facsimile: (228) 822-2317 E-mail: rsamson@splawfirm.com

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAROL GRAY APPELLANT VERSUS NO.: 2014-CA-01106 JIMMY DIMITRIADES, M.D., MEMORIAL HOSPITAL AT GULFPORT and TODD FRIEZE, M.D. APPELLEES 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 representations are made in order that the Justices of this Court may evaluate possible disqualifications or recusal. A. Memorial Hospital at Gulfport and Dimitrios Dimitriades, M.D. Appellees; B. Roland F. Samson, III, Esq. of the law firm of Samson & Powers, PLLC, attorney of record for Appellees, Memorial Hospital at Gulfport and Dimitrios Dimitriades, M.D.; C. Carol Gray Appellant; D. Jonathan B. Fairbank, Esq., Edward Gibson, Esq. and John F. Hawkins, Esq., attorneys of record for Appellant, Carol Gray; E. Todd Frieze, M.D. Co-Appellee; F. Stephen Burrow, Esq. and James H. Heidelberg, Esq., attorneys of record for Co- Appellee, Todd Frieze, M.D.; G. Eric Graham, M.D. and Michelle Graham, N.P. Appellees (Case No. 2014-CA- 00069-COA); H. Stephen G. Peresich, Esq., attorney of record for Appellees, Eric Graham, M.D. and Michelle Graham, N.P. (Case No. 2014-CA-00069-COA); i

I. Honorable Lawrence P. Bourgeois, Jr., Circuit Court Judge. th This the 10 day of September, 2015. /s/ Roland F. Samson, III ROLAND F. SAMSON, III MS BAR NO. 8764 Attorney for Appellees, Memorial Hospital at Gulfport and Dimitrios Dimitriades, M.D. ii

STATEMENT REGARDING ORAL ARGUMENT Dimitrios Dimitriades, M.D. and Memorial Hospital at Gulfport do not believe oral argument will be of assistance to the Court in this case. The legal issues presented in the Briefs are governed by well-established Mississippi law. However, should the Court desire oral argument, Dr. Dimitriades and Memorial stand ready to orally present their position. iii

TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS....................................... i STATEMENT REGARDING ORAL ARGUMENT.................................. iii TABLE OF CONTENTS........................................................ iv TABLE OF AUTHORITIES...................................................... v STATEMENT OF THE ISSUES................................................... 1 STATEMENT OF THE CASE.................................................... 2 I. NATURE OF THE CASE, COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW............................................. 2 II. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW............................ 7 SUMMARY OF THE ARGUMENT............................................... 9 ARGUMENT................................................................. 10 A. Standard of review.................................... 10 B. The elements of Plaintiff's medical negligence action against Memorial...................................... 11 C. Expert opinions generally.............................. 12 D. The trial court properly held that Dr. Avery's Affidavit and Supplemental Affidavit were insufficient to create a question of fact on the issues of standard of care, alleged breach of the standard of care and/or medical causation.................. 14 CONCLUSION............................................................... 19 CERTIFICATE OF SERVICE................................................... 20 iv

TABLE OF AUTHORITIES CASES: PAGE Burnham v. Tabb 508 So. 2d 1073 (Miss. 1987).............................................. 11 Clayton v. Thompson 475 So. 2d 439 (Miss. 1985)............................................... 11 Delta Reg'l Med. Ctr. v. Venton 964 So. 2d 500 (Miss. 2007)............................................... 11 Enroth v. Memorial Hospital at Gulfport 566 So. 2d 202 (Miss. 1990)................................................ 2 Gen. Elec. Co. v. Joiner 522 U.S. 136 (1997)..................................................... 14 Harris v. Shields 568 So. 2d 269 (Miss. 1990)............................................... 11 Hubbard v. Wansley 954 So. 2d 951 (Miss. 2007)......................................... 10, 12, 13 Ladner v. Campbell 515 So. 2d 885 (Miss. 1987)............................................... 12 Mariner Health Care, Inc. v. Estate of Edwards 964 So. 2d 1138 (Miss. 2007).............................................. 11 McDaniel v. Pidikiti 39 So. 3d 952 (Miss. Ct. App. 2009)........................................ 10 McDonald v. Memorial Hospital at Gulfport 8 So. 3d 175 (Miss. 2009)................................................. 12 Miss. Transp. Comm'n v. McLemore 863 So. 2d 31 (Miss. 2003).......................................... 10, 13, 14 Nichols v. Tubbs 609 So. 2d 377 (Miss. 1992)............................................ 10, 14 Northrup v. Hutto 9 So. 2d 381 (Miss. 2009)................................................. 11 v

Perez v. Univ. of Mississippi Med. Ctr. 75 So. 3d 609 (Miss. Ct. Appl. 2011)..................................... 10, 13 Phillips v. Hull 516 So. 2d 488 (Miss. 1987)......................................... 10, 14, 15 Potter v. Hopper 907 So. 2d 376 (Miss. Ct. App. 2005).................................... 14, 18 Ronald Adams Contractor, Inc. v. Miss. Transp. Comm'n 777 So. 2d 649 (Miss. 2000)............................................... 10 Scales v. Lackey Mem'l Hosp. 988 So. 2d 426 (Miss. Ct. App. 2008)........................................ 11 Vaughn v. Miss. Baptist Med. Ctr. 20 So. 3d 645 (Miss. 2009)................................................ 11 West v. Sanders Clinic for Women, P.A. 661 So. 2d 714 (Miss. 1995)............................................... 12 Whittington v. Mason 905 So. 2d 1261 (Miss. 2005).............................................. 15 STATUTES: Miss. Code Ann. 11-46-1....................................................... 2 OTHER AUTHORITIES: Miss. R. Civ. P. 26............................................................. 9 Miss. R. Civ. P. 54(b)......................................................... 5, 7 Miss. R. Evid. 702.......................................................... 12, 13 Fed. R. Evid. 702............................................................. 12 vi

STATEMENT OF THE ISSUES The trial court properly held that the Affidavit and Supplemental Affidavit of Dr. Bruce Avery, Plaintiff's physician expert, were insufficient to create a question of fact on the issues of standard of care, alleged breach of the standard of care and/or medical causation. Accordingly, this Court should affirm the trial court's grant of Summary Judgment in favor of Defendants, Dimitrios Dimitriades, M.D. and Memorial Hospital at Gulfport, and dismiss Plaintiff's Complaint against them, with prejudice. 1

STATEMENT OF THE CASE I. NATURE OF THE CASE, COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW The Plaintiff, Carol Gray ("Plaintiff"), filed a Complaint against Dimitrios Dimitriades, M.D. ("Dr. Dimitriades") and Memorial Hospital at Gulfport ("Memorial") (and Eric Graham, 1 2 M.D., Michelle Graham, NP (i.e., Nurse Practitioner) and Todd Frieze, M.D. ) on April 4, 2011. (R. I. 95-115; Appellees' R.E. 1-21). Memorial is a political subdivision of the State of Mississippi and a public, community hospital subject to all procedural and substantive provisions of the Mississippi Tort Claims Act, Miss. Code Ann. 11-46-1, et. seq. See Enroth v. Memorial Hospital at Gulfport, 566 So. 2d 202 (Miss. 1990). Dr. Dimitriades has been an employee of Memorial since June 20, 2007, and, as such, he is also subject to all procedural and substantive provisions of the Mississippi Tort Claims Act. (R.I. 15-16, Doc. Nos. 63 and 66). 3 The underlying facts of this case are largely undisputed. This is a medical negligence case against the aforementioned medical providers based on an alleged failure to diagnose Plaintiff's multiple myeloma. Specifically, the Complaint alleges that Dr. Dimitriades (and Memorial pursuant to the doctrine of Respondeat Superior) was negligent as follows: 1 Hereinafter referred to as Dr. Graham, NP Graham and Dr. Frieze. Dr. Graham and NP Graham are represented by Stephen G. Peresich with the Page, Mannino, Peresich and McDermott firm in the separate but related appeal before this Court, No. 2014-CA-00069-COA. Dr. Frieze is represented by Stephen W. Burrow with the Heidelberg, Steinberger, Colmer and Burrow firm in this appeal. 2 References to the Clerk's Papers are designated "R." followed by the applicable volume of the record and page number(s). References to the transcript of the March 13, 2014, hearing is designated "T." followed by the applicable page number(s). References to the Appellees' Record Excerpts are designated "Appellees' R.E." followed by the applicable page number(s). 3 Unless distinction between Memorial and Dr. Dimitriades is factually necessary, Memorial and Dr. Dimitriades will be referred to collectively as "Memorial" or "Defendants" in this Brief. 2

At least since November of 2008, and continuing through 2010, tests on Gray's blood and urine yielded abnormal results, including but not limited to an elevated total protein level. The standard of care required that in light of these lab results, Gray's chronic anemia, and the incidence of thoracic fractures, Dr. Dimitriades and Memorial Hospital at Gulfport take additional steps to rule out cancer, including but not limited to ordering a serum protein electrophoresis. Moreover, the standard of care required Dr. Dimitriades and Memorial Hospital at Gulfport to be aware of the May 13, 2009, biopsy, and to communicate the results of that biopsy to Gray as quickly as possible. 4 (R.I. 102; Appellees' R.E. 8). Although the Complaint alleges claims for diminishment in life expectancy and diminishment in the quality of remaining life expectancy, Plaintiff has conceded that this case is limited to the alleged failure to "diagnose her multiple myeloma, allow[ing] her cancer to progress untreated and produce [additional] fractures in her spine." (Pl.'s Brief, p. 1). According to the Complaint (which is based on the medical records), Dr. Dimitriades diagnosed Plaintiff with a fracture at T-7 on November 26, 2008. (R.I. 97; Appellees' R.E. 3). On December 3, 2008, Dr. Dimitriades referred Plaintiff to Dr. Graham, orthopedic surgeon, for evaluation and treatment of the T-7 fracture. Id. On February 18, 2009, Dr. Graham performed kyphoplasty on the Plaintiff at T-7 and also took a biopsy at T-7. Id. The Pathology Report from Garden Park Medical Center (where Dr. Graham performed the February 18, 2009, kyphoplasty) shows a normal bone biopsy. (R.III. 355-356; Appellees' R.E. 22-23). The February 18, 2009, 4 Plaintiff has no proof that Dr. Dimitriades ever received the Pathology Report regarding the May 13, 2009, biopsy (and was not aware of same until after receipt of Plaintiff's Notice of Claim dated August 29, 2010, approximately two (2) months after the results of the Pathology Report had been reported by Dr. Kerby to Plaintiff during an office visit on June 7, 2010), so how was he supposed to communicate the results to the Plaintiff? Due to the separate appeals each involving less than the entire record in the trial court, the May 13, 2009, Pathology Report or Biopsy Report was inadvertently not included in the record in this appeal by undersigned counsel. However, the May 13, 2019, Pathology Report is included in the record in the separate but related appeal involving Plaintiff and Dr. Graham/NP Graham (No. 2014-CA-00069-COA) as pages 547-551 of the Clerk's Papers and pages 37-41 of the Record Excerpts of the Appellant. Therefore, rather than filing a Motion to Supplement the Record, and, assuming it is acceptable to this Court, Memorial will refer to the May 13, 2009, Pathology Report as if a part of the record of this appeal and include same in Appellees' Record Excerpts. 3

Pathology Report indicates a copy of same was mailed or transmitted to Dr. Dimitriades' office located at 394 Courthouse Road, Gulfport, Mississippi 39507. Id. On April 30, 2009, Plaintiff underwent a MRI, which revealed a fracture at T-5. (R.I. 98; Appellees' R.E. 4). On May 13, 2009, Dr. Graham performed a second kyphoplasty on the Plaintiff at Garden Park Medical Center this one at T-5 with biopsy. "The T-5 biopsy results indicated 'Numerous Plasma Cells Present, Consistent with Plasmacytoma/Multiple Myeloma'. The biopsy report recommended that... [Plaintiff] undergo a serum and urine protein electrophoresis, and that the biopsy results be correlated with 'clinical and radiographic findings.'" (R.I. 99; Appellees' R.E. 5 and 24-28). The T-5 biopsy results "were faxed to Dr. Graham's office on May 14, 2009." Id. For some unknown reason, a copy of the Pathology Report regarding the May 13, 2009, biopsy at T-5 was not transmitted by Garden Park Medical Center (or Dr. Graham) to Dr. Dimitriades, and there is no proof that Dr. Dimitriades ever 5 received and/or was aware of the May 13, 2009, Pathology Report. Notwithstanding the May 13, 2009, biopsy and Pathology Report, Plaintiff alleges that she first learned she had multiple myeloma during an office visit with Dr. Kerby approximately a year later on June 7, 2010, and was thereafter referred to the M.D. Anderson Cancer Center in Houston, Texas. (R.I. 101; Appellees' R.E. 7). Shortly after her admission to M.D. Anderson on June 29, 2010, Plaintiff was diagnosed with additional fractures at T-4, T-8, T-10, L-1 and L-2. Id. 6 5 While the February 18, 2009, Pathology Report reflects that it was mailed or transmitted to Dr. Dimitriades' office, the May 13, 2009, Pathology Report reflects "No PCP" (i.e., primary care provider/physician) and does not contain Dr. Dimitriades' name or office address anywhere on the report. (Appellees' R.E. 24-28). 6 The Affidavit and Supplemental Affidavit of Dr. Bruce Avery, Plaintiff's physician expert, are at odds with the Plaintiff's Complaint in that they state Plaintiff's additional spinal fracture at T-10 was diagnosed or noted by Dr. Kerby during June 2010 (i.e., apparently just prior to Plaintiff's admission to M.D. Anderson on June 29, 2010). (R.II. 259-263; R.II. 266-271). 4

(R.I. 118). (R.I. 123). In response to Defendants' Interrogatory No. 5, Plaintiff stated as follows: INTERROGATORY NO. 5: State the name, address and professional qualifications of each expert you expect to call as an expert witness at any trial of this cause, detailing the subject matter of the testimony, detailing the substance of the facts and a summary of the grounds for each opinion on which each expert is expected to testify, and giving the opinion about which each expert will testify. RESPONSE TO INTERROGATORY NO. 5: Please see Gray's Response to Interrogatory No. 3 propounded by Dr. Todd Frieze. Plaintiff responded to Dr. Frieze's Interrogatory No. 3 as follows: INTERROGATORY NO. 3: Identify each person whom you expect to call as an expert witness at the trial of this cause and state the following about each such expert: (a) The subject matter, in specific detail, on which the expert is expected testify; (b) The substance of the facts and opinions to which the expert is expected to testify; (c) The summary of grounds for each opinion to which the expert is expected to testify. RESPONSE TO INTERROGATORY NO. 3: Gray has not yet determined those persons whom she will call as expert witnesses in this matter. Gray agrees to supplement this response in a seasonable manner. Following completion of paper discovery between the parties, Co-Defendants, Dr. Graham and NP Graham, filed a Motion for Summary Judgment and Supplemental Motion for Summary Judgment on March 5, 2012, and March 12, 2012, respectively. (R.I. 12-13). On March 22, 2012, Plaintiff filed the Affidavit of Dr. Bruce Avery ("Affidavit of Dr. Avery" or "Dr. Avery's Affidavit") in response to the dispositive Motion filed by Dr. Graham and NP Graham. On December 18, 2013, the trial court entered Eric Graham, M.D. and Michelle Graham, N.P.'s Findings of Fact and Conclusions of Law and Order of Dismissal, including a "certification of judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure." (R.I. 26-39). Pursuant to Eric Graham, M.D. and Michelle Graham, N.P.'s Findings of Fact and Conclusions 5

of Law filed on December 18, 2013, the trial court found, inter alia, that because the Affidavit of Dr. Avery "only makes a boilerplate conclusory opinion, which was given with no real facts to back it up, and with no specific facts nor medical analysis as to how or why the delay in an unspecified type of treatment caused the additional spinal fractures, the Court finds Plaintiff has failed to establish medical causation." (R.I. 39). On January 3, 2014, Co-Defendant, Dr. Frieze, filed a Motion for Summary Judgment. (R.I. 40-91). On January 7, 2014, Memorial filed a Motion for Summary Judgment. (R.I. 92-133). On January 10, 2014, Plaintiff filed a Notice of Appeal of Eric Graham, M.D. and Michelle Graham, N.P.'s Findings of Fact and Conclusions of Law and Order of Dismissal, which is the separate but related appeal, No. 2014-CA-00069-COA. On January 24, 2014, Plaintiff filed a Motion to Stay Further Proceedings requesting that the trial court stay further proceedings relative to the dispositive motions filed by Dr. Frieze and Memorial, pending this Court's adjudication of the Judgment entered in favor of Dr. Graham and NP Graham. On January 27, 2014, and, in response to Memorial's Motion for Summary Judgment, Plaintiff filed the Affidavit of Dr. Avery and the January 22, 2014, Supplemental Affidavit of Dr. Avery ("Supplemental Affidavit of Dr. Avery" or "Dr. Avery's Supplemental Affidavit") (R.II. 259-263; R.II. 266-271). Dr. Avery's Supplemental Affidavit ostensibly attempts to remediate 7 his previous legally deficient opinions. On March 14, 2014, the trial court entered an Order Denying Plaintiff's Motion to Stay. (R.III. 352). On July 10, 2014, the trial court entered its Findings of Fact, Conclusions of Law and Order granting Memorial's Motion for Summary Judgment, including certification of 7 Dr. Avery's Affidavit addresses the purported standard of care applicable to Dr. Dimitriades and the alleged breach of the breach of the standard of care in paragraph 8. (R.II. 261). 6

Judgment in favor of Memorial pursuant to Miss. R. Civ. P. 54(b). (R.III. 368-380). On the same day, the trial court entered Findings of Fact and Conclusions of Law, Order Granting Dr. Frieze's Motion for Summary Judgment and Judgment Dismissing Plaintiff's Claim, including a Rule 54(b) Judgment. (R.III. 381-394). It is from the trial court's July 10, 2014, rulings and Rule 54(b) Judgments in favor of Memorial and Dr. Frieze that Plaintiff filed a Second Notice of Appeal, i.e., the subject appeal. (R.III. 395-397). To the extent not inconsistent with Memorial's Brief, Memorial adopts any facts or legal arguments in the Briefs submitted by Dr. Graham/NP Graham in the separate appeal and Dr. Frieze herein. II. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW Dr. Dimitriades is a Family Medicine physician, who has been employed with Memorial since June 20, 2007. On or about July 9, 2008, Dr. Dimitriades established Plaintiff as a new patient. (R.I. 97; Appellees' R.E. 3). Dr. Dimitriades treated Plaintiff from July 9, 2008, until early 2010/Spring 2010, when Plaintiff transferred her care to Dr. Sean Kerby, another primary care physician employed by Memorial. (R.I. 100; Appellees' R.E. 6). As part of establishing Plaintiff as a new patient in early 2010/Spring 2010 and for the purpose of evaluating her unresolved cellulitis in May 2010, Dr. Kerby requested Plaintiff's medical records from Garden Park Medical Center. "On June 7, 2010, Dr. Kirby (sic) explained that he had reviewed Gray's records and found where "she had a biopsy done of her spine when she was undergoing kyphoplasty and it showed multiple myeloma. This was the first occasion on which Gray had been informed of the abnormal T-5 biopsy, or a potential diagnosis of multiple myeloma." (R.I. 101; Appellees' R.E. 7). 7

Plaintiff has produced no proof that Dr. Dimitriades received the May 13, 2009, biopsy report, which showed 80% of plasma cells within Plaintiff's bone marrow, consistent with multiple myeloma or plasmacytoma. The truth of the matter is that Dr. Dimitriades did not receive the May 13, 2009, biopsy report, either from Garden Park Medical Center, the pathologist or Dr. Graham, and relied on Dr. Graham (the surgeon that Dr. Dimitriades, as a primary care physician, referred Plaintiff to) for evaluation and treatment of Plaintiff's T-7 and T-5 fractures, including notifying her about the May 13, 2009, biopsy report. It is axiomatic that had Dr. Dimitriades received the May 13, 2009, biopsy report, he would have notified Plaintiff accordingly. Since there is no proof that Dr. Dimitriades received a copy of the Pathology Report regarding the May 13, 2009, biopsy at T-5, Plaintiff's case against Dr. Dimitriades is that he should have known, based on Plaintiff's clinical symptomotology, including lab results, that Plaintiff had multiple myeloma, presumably from sometime on or about the time of the abnormal T-5 biopsy in May 2009, until the termination of the physician-patient relationship between Dr. Dimitriades and Plaintiff in early 2010/Spring 2010. Although certainly not exhaustive, the following relevant time line is established by the Complaint and Dr. Avery's Affidavit and Supplemental Affidavit (which are based on Plaintiff's medical records): July 9, 2008 Dr. Dimitriades established Plaintiff as a new patient. November 26, 2008 Dr. Dimitriades diagnosed Plaintiff with a fracture at T-7 and referred her to Dr. Graham, orthopedic surgeon, to evaluate surgical repair of the fracture. 8

February 18, 2009 Dr. Graham performed kyphoplasty on the Plaintiff at T-7 with biopsy. The Pathology Report was normal, and it reflects a copy of same was mailed to Dr. Dimitriades' office. April 30, 2009 May 13, 2009 January 22, 2010 June 7, 2010 June 29, 2010 Plaintiff was diagnosed with a fracture at T-7. Dr. Graham performed a second kyphoplasty on the Plaintiff at T-5 with biopsy. The May 13, 2009, Pathology Report indicated 80% of plasma cells within Plaintiff's bone marrow, consistent with multiple myeloma or plasmacytoma. The Pathology Report was not mailed or delivered to Dr. Dimitriades or his office "NO PCP". See Appellees' R.E. 24-28. Dr. Sean Kerby established Plaintiff as a new patient. Dr. Kerby reported the results of the May 13, 2009, biopsy to Plaintiff. Plaintiff presented to the M.D. Anderson Cancer Center in Houston, Texas, for treatment of multiple myeloma. Following admission to M.D. Anderson, Plaintiff was diagnosed with additional fractures at T-4, T-8, T-10, L-1, L-2 and bony lesions on her hip and skull. SUMMARY OF THE ARGUMENT Memorial filed a Motion for Summary Judgment on the grounds that Plaintiff had not provided sufficient and viable Miss. R. Civ. P. 26 expert information regarding: (1) the standard of care applicable to Dr. Dimitriades during his care and treatment of the Plaintiff; (2) that Dr. Dimitriades breached or deviated from the applicable standard of care; and/or (3) that Dr. Dimitriades' breach or deviation from the applicable standard of care was a proximate cause of the Plaintiff's injury or damages. In response to Memorial's Motion, Plaintiff submitted the Affidavit and Supplement Affidavit of Dr. Avery. Pursuant to well-established law, the Affidavit and Supplemental Affidavit of Dr. Avery are conclusory and do not set forth specific facts and medical analysis as to the how, when and why regarding the issues of standard of care, 9

alleged breach of the standard of care and/or medical causation. See Hubbard v. Wansley, 954 So. 2d 951 (Miss. 2007); Perez v. Univ. of Mississippi Med. Ctr., 75 So. 3d 609 (Miss. Ct. App. 2011); Nichols v. Tubbs, 609 So. 2d 377 (Miss. 1992); Potter v. Hopper, 907 So. 2d 376 (Miss. Ct. App. 2005); Phillips v. Hull, 516 So. 2d 488 (Miss. 1987). Since the Affidavit and Supplemental Affidavit of Dr. Avery do not point to the standard of care, alleged breach of the standard of care by Dr. Dimitriades and/or medical causation with the legally-mandated level of specificity, essential elements of Plaintiff's case against Memorial fail. Accordingly, this Court should affirm the trial court's grant of Summary Judgment in favor of Dr. Dimitriades and Memorial, and dismiss Plaintiff's Complaint against them, with prejudice. ARGUMENT A. Standard of review On appeal, this Court reviews the trial court's grant of summary judgment in favor of Memorial de novo. This Court "examines all the evidentiary matters before it admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to summary judgment as a matter of law, summary judgment should forthwith be entered in his favor." Ronald Adams Contractor, Inc. v. Miss. Transp. Comm'n, 777 So. 2d 649 (Miss. 2000). An abuse of discretion standard is required when reviewing a trial court's decision to allow or disallow evidence, including expert testimony. McDaniel v. Pidikiti, 39 So. 3d 952, 956 (Miss. Ct. App. 2009) (citing Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003). 10

B. The elements of Plaintiff's medical negligence action against Memorial In setting forth a prima facie case of medical negligence, Plaintiff must prove "that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury; and (4) the plaintiff was injured as a result." Delta Reg'l Med. Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007) (citing Burnham v. Tabb, 508 So. 2d 1073, 1074 (Miss. 1987)). Proof must be provided for each element of Plaintiff's claim and if one element is lacking, the entire claim, or, in this case, the theory of recovery fails. Scales v. Lackey Mem'l Hosp., 988 So. 2d 426, 431 (Miss. Ct. App. 2008) (citations omitted). "The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff's selected medical expert." Northrop v. Hutto, 9 So. 2d 381, 384 (Miss. 2009). In a medical negligence case, such as the instant case, physician expert testimony is required to prove causation. Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645 (Miss. 2009); Mariner Health Care, Inc. v. Estate of Edwards, 964 So. 2d 1138, 1144 (Miss. 2007). In a case where it is not alleged that the defendant actively inflicted the injury but rather that the defendant, by omission, allowed an injury or disease process to go untreated or be improperly treated a "loss of chance of recovery" case the plaintiff, in order to prove a causal connection between the alleged negligence and a patient's injury, must prove something beyond the mere loss of a chance of a better result. Harris v. Shields, 568 So. 2d 269, 273-74 (Miss. 1990); Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985) ("Mississippi law does not permit recovery of damages because of a mere diminishment of the 'chance of recovery'"). The plaintiff must establish proximate causation by presenting expert testimony that proper treatment would have 11

provided the patient with a greater than fifty (50) percent chance of a substantially better result than was in fact obtained. Hubbard v. Wansley, 954 So. 2d 951, 964 (Miss. 2007). C. Expert opinions generally Generally, it is not required that an expert in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying. Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007). "It is the scope of witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility." Id. (quoting West v. Sanders Clinic for Women, P.A., 661 So. 2d 714, 719 (Miss. 1995)). "However, the expert still must show satisfactory familiarity with the specialty of the doctor in order to testify as to the standard of care owed to the patient." Id. (citing West, 661 So. 2d at 718-19); see also McDonald v. Memorial Hospital at Gulfport, 8 So. 3d 175 (Miss. 2009) (board-certified pathologist and psychiatrist was not qualified to testify as expert in a medical malpractice case against a gastroenterologist). Plaintiff's expert, Dr. Avery, is a medical oncologist/internist, and Dr. Dimitriades is a Family Medicine practitioner. Miss. R. Evid. 702 was substantially amended by the Mississippi Supreme Court in 2003, bringing it in line with the wording of Fed. R. Evid. 702 and its Daubert test. The verbatim text of amended Rule 702 requires demonstrated expertise by the expert in the field of inquiry and proof that: (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. In this case, Plaintiff bears the burden of proof to establish that her expert's proffered opinions can meet the reliability criteria of Miss. R. Evid. 702, as interpreted by decisional law of this state. In Ladner v. Campbell, 515 So. 2d 885, 888 (Miss. 1987), the Mississippi Supreme 12

Court recognized that in cases such as this one, where the alleged malpractice takes the form of a failure to cure, rather than the result of "any positive effects of mistreatment", establishing causation is "particularly difficult." A case addressing the requirements of an expert's opinion on causation in the context of "loss of chance" medical malpractice is Hubbard v. Wansley, 954 So. 2d 951 (Miss. 2007). The plaintiff's expert in Hubbard, Dr. Lynn Stringer, submitted an affidavit stating as follows: It is my opinion that had Ruby Hubbard been treated properly by Dr. Wansley, or if Dr. Wansley had notified appropriate personnel, it is my opinion that Ruby Hubbard would have had a greater than fifty percent chance of reduced neurological injury. Hubbard, 954 So. 2d at 965. The Hubbard Court noted that Dr. Stringer had used the "magic language" on causation, seemingly sufficient for plaintiff to survive summary judgment on this essential element of her case. Id. Nevertheless, the court affirmed the summary judgment in favor of the defendant, explaining as follows: Dr. Stringer's assertion that Hubbard would have had a fifty percent greater chance of recovery is given with no real facts to back it up. 'The party opposing the motion [for summary judgment] must by affidavit or otherwise set forth specific facts showing that there are indeed issues for trial.' The language of Dr. Stringer's affidavit is almost wholly conclusory on the issue of causation and gives very little in the way of specific facts and medical analysis to substantiate the claim that Hubbard had a greater than fifty percent chance of substantial recovery if she had received the 'optimal care' of which Dr. Stringer spoke. This court has shown its disapproval of such affidavits in the past. Id. at 965-966 (internal citations omitted) (emphasis in original); see also Perez v. Univ. of Mississippi Med. Ctr., 75 So. 3d 609, 612 (Miss. Ct. App. 2011) (expert's affidavit was "conclusory" where he "failed to explain how or why using Floxin Otic instead of Ocuflux could have caused Perez's eye injury."). Plaintiff's expert may not merely say, "it is so, because I say it is so," a form of ipse dixit reasoning prohibited by Miss. R. Evid. 702 and decisional law. Miss. Transp. Comm'n v. 13

McLemore, 863 So.2d 31, 37 (Miss. 2003) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L. Ed.2d 508 (1997)). In Nichols v. Tubbs, 609 So. 2d 377 (Miss. 1992), the Mississippi Supreme Court indicated that it requires much more detail in response to expert discovery in a complex case, such as this medical negligence action. The Nichols court wrote: Rule 26(b)(4) requires disclosure of "facts known and opinions held by experts", and as to each proposed testifying expert, to state "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." This means that the substance of every opinions which supports or defends the party's claim or defense must be disclosed and set forth in meaningful information which will enable the opposing side to meet it at trial. Not only this, the "grounds" or basis of each opinion must be disclosed. If the expert's answer is based upon his own experience, the answer should so state, and if based on some other ground, the precise source should be likewise disclosed. In Potter v. Hopper, 907 So. 2d 376 (Miss. Ct. App. 2005), this Court held that "[a]bsent expert medical testimony that articulates the duty of care a physician owes to a particular patient under the circumstances and identifies the particular point that the physician breached that duty and caused injury to the plaintiff, the plaintiff's claim for negligence must fail." Id. at 380 (citing Phillips v. Hull, 516 So. 2d 488, 491 (Miss. 1987)). D. The trial court properly held that Dr. Avery's Affidavit and Supplemental Affidavit were insufficient to create a question of fact on the issues of standard of care, alleged breach of the standard of care and/or medical causation This Court should analyze the Affidavit and Supplemental Affidavit of Dr. Avery against the foregoing legal backdrop. To this end, there are a number of deficiencies in the Affidavit and Supplemental Affidavit of Dr. Avery. With regard to the purported standard of care applicable to Dr. Dimitriades and the alleged breach of same, Dr. Avery avers in his Affidavit as follows: 8. When Mrs. Gray's anemia did not respond to treatment, and when Mrs. Gray suffered her first thoracic fracture, the standard of care required a reasonably prudent internist to further investigate potential causes of the refractory anemia and thoracic 14

fracture. Specifically Dr. Dimitriades should have done further testing to determine protein levels in the blood and urine such as a serum and urine electrophoresis. Had Dr. Dimitriades conformed to the standard of care, I opine to a reasonable degree of medical certainty that he would have documented results that would have led to further studies to confirm the diagnosis of multiple myeloma. Other studies that would have documented Multiple Myeloma such as a bone marrow examination or results of May 13, 2009, biopsy of which Dr. Dimitriades had notice would have confirmed a diagnosis of multiple myeloma. (R.II. 259-263). Expert testimony under Mississippi law must "(a) articulate [ ] the duty of care the physician owes to a particular patient under the circumstances, and (b) identify [ ] the particular(s) wherein the physician breached that duty and caused injury to the plaintiff patient." Phillips v. Hull, 516 So. 2d 488, 491 (Miss. 1987) (en banc) (overruled on other grounds by, Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005)). Assuming for purposes of argument only that Dr. Dimitriades should have ordered a serum and urine electrophoresis immediately following Plaintiff's initial thoracic fracture on November 26, 2008, Dr. Avery does not state what, if anything, the serum and urine electrophoresis would have definitively shown and why the results of same would or should have led to further testing. Other than the serum and urine electrophoresis that Dr. Avery alleges should have been ordered following the November 26, 2008, T-7 fracture, Dr. Avery does not ascribe any other standard of care (or alleged breach) to Dr. Dimitriades other than that Dr. Dimitriades should have ordered a bone marrow examination (other than the frivolous assertion that Dr. Dimitriades had notice of the May 13, 2009, Pathology Report) but Dr. Avery does not indicate when the bone marrow examination should have been ordered, nor does he provide any clinical basis or facts as to why the bone marrow examination should have been ordered. What is clear is that Plaintiff has no proof that Dr. Dimitriades received the May 13, 2009, Pathology Report. 15

causation: In the Supplemental Affidavit of Dr. Avery, he avers as follows on the issue of medical 7. Based upon lab results obtained by Dr. Dimitriades, Gray s clinical presentation, and the May 13, 2009, bone biopsy results, I opine to a reasonable degree of medical certainty that Gray suffered from symptomatic Multiple Myeloma at least as of May 13, 2009. To a reasonable degree of medical probability, Gray s fractures at T-7, T- 5, T-8, T-10, L-1 and L-2 were caused or substantially contributed to by her untreated Multiple Myeloma. * * * 9. Based upon the manner in which Mrs. Gray responded to chemotherapy at M.D. Anderson, I opine to a reasonable degree of medical certainty that had Mrs. Gray been timely informed of the May 13, 2009, biopsy results, and initiated treatment for multiple myeloma shortly thereafter, most if not all of the fractures and bony lesions which were discovered during June and July of 2010, more likely than not would have been avoided. MRI studies conducted during 2008 and 2009, did not indicate any spinal fractures other than at T-5 and T-7. Nor were any lytic lesions noted. To a reasonable degree of medical certainty I opine that Mrs. Gray s multiple myeloma was left untreated for over a year, allowed to progress, and produce the additional spinal fractures at T-8, T-10, L-1 and L-2. Earlier treatment of Mrs. Gray s multiple myeloma, although not curative, more likely than not would have prevented additional fractures. 10. It is my opinion to a reasonable degree of medical probability that, had Dr. Graham, Nurse Graham, Dr. Dimitriades, or Dr. Frieze exercised the minimum level of care in diagnosing and treating Ms. Gray s condition of multiple myeloma in a timely fashion, the patient would certainly have received chemotherapy consisting of a three drug regimen which in this case consisted of combinations of bortezomib, cyclophosphamide, lenalidomide, and dexmethosone that is known to be effective when this condition is diagnosed early enough. Additionally, the doctors at M.D. Anderson administered this very treatment and it has proven to be effective in mitigating the effects of Ms. Gray s disease in this case. Gray achieved a partial remission once this chemotherapy was instituted, and suffered no more lytic lesions or spinal fractures. Therefore, it is my opinion to a reasonable degree of medical probability or certainty (most definitely a greater that 50% likelihood) that had proper and timely diagnosis and the above-referenced treatment been rendered, Mrs. Gray would have more likely than not had a more favorable medical outcome and more specifically, would have more likely than not avoided the additional spinal fractures at T-4, T-8, T-10, L-1 and L-2, and lytic lesions she suffered in this case as a result of the delay in proper diagnosis and treatment and would have likewise would not have suffered the accompanying pain and suffering, and medical treatment necessitated thereby, medical billing and loss of enjoyment of life all proximately 16

caused by the additional medical damages and problems that should have been avoided by defendants, had they rendered timely and appropriate care and treatment to Ms. Gray within the applicable standard of care as set forth herein. (R.II. 266-271). Dr. Avery implies that Dr. Dimitriades did nothing in response to Plaintiff's anemia and thoracic fractures. The fact of the matter is that Dr. Dimitriades referred Plaintiff to an orthopedic specialist, Dr. Eric Graham, to evaluate and treat her initial T-7 fracture. Indeed, Dr. Graham performed a kyphoplasty on the Plaintiff at T-7 and T-5 on February 18, 2009, and May 13, 2009, respectively. Moreover, Dr. Dimitriades initiated a number of tests and/or interventions to address Plaintiff's anemia, all of which are documented in Dr. Dimitriades' medical records. Notwithstanding, it was during the May 13, 2009, kyphoplasty that Dr. Graham took a biopsy at T-5, the Pathology Report of which is the subject of this litigation. It is disengenuous, at a minimum, for Dr. Avery to aver that the "results of the May 13, 2009, biopsy of which Dr. Dimitriades had notice would have confirmed a diagnosis of multiple myeloma", when Dr. Avery knows or, in the exercise of reasonable care, should know that there is not a shred of evidence adduced thus far to indicate Dr. Dimitriades received a copy of the May 13, 2009, Pathology Report. Where is Plaintiff's proof in this regard? Plaintiff's argument that Dr. Dimitriades had a duty to follow-up with the pathologist at Garden Park Medical Center and obtain a copy of Plaintiff's pathology report is baseless. Obviously, had Dr. Dimitriades received a copy of the May 13, 2009, Pathology Report, or if there is any proof to suggest that Dr. Dimitriades received a copy of the May 13, 2009, Pathology Report, this Court might find otherwise. Plaintiff's argument begs the question how would Dr. Dimitriades know, or how could Dr. Dimitriades be expected to divine all of the treatment and ancillary services provided by or through Dr. Graham? 17

The crux of Plaintiff's theory is that "had Mrs. Gray been timely informed of the May 13, 2009, biopsy results, and initiated treatment for multiple myeloma shortly thereafter, most, if not all of the fractures and bony lesions which were discovered during June and July 2010, more likely than not would have been avoided." (R.II. 266-271). Again, this is significant because the May 13, 2009, Pathology Report was directed only to Plaintiff's treating physician at the time, not Dr. Dimitriades. (Appellees' R.E. 24-28). Dr. Avery's Affidavit and Supplemental Affidavit conspicuously fail to mention that the February 18, 2009, Pathology Report (which appears to have been directed to Dr. Dimitriades' office) was negative for multiple myeloma, i.e., normal. (R.III. 355-356). So, would any of the further testing suggested by Dr. Avery, assuming it should have been performed prior to February 2009, have shown anything of significance? At least in February 2009, the biopsy of Plaintiff's bone at T-7 was negative for multiple myeloma. Taking Plaintiff's theory to its logical conclusion, in February 2009, Dr. Dimitriades should have known or predicted that Plaintiff was going to develop a diagnosis of multiple myeloma at some point in the future. Clearly, this is not the standard of care. More importantly, Dr. Avery does not opine as to what, if anything, additional testing to determine protein levels in the blood and urine (such as serum and urine electrophoresis) would have shown, other than the conclusory statement that it would have confirmed a diagnosis of multiple myeloma. Again, this begs the question when would these tests have confirmed a diagnosis of multiple myeloma? As explained by this Court, Plaintiff is required to provide expert testimony that not only articulates the standard of care Dr. Dimitriades owed to the Plaintiff, but also must "identify the particular point that the physician breached that duty and caused injury to the [P]laintiff...." Potter, 907 So. 2d at 380. 18

There is an absence of factual foundation and scientific underpinnings to support the bare and conclusory opinions of Dr. Avery regarding the purported standard of care, alleged breach of the standard of care and/or medical causation. Simply put, conclusory opinions without factual support are still opinions without factual support. Accordingly, since the opinions of Dr. Avery regarding the standard of care, alleged breach or deviation from the standard of care and/or medical causation are conclusory and without sufficient factual detail, then essential elements of Plaintiff's case against Memorial fail and summary judgment must be granted. CONCLUSION For the reasons stated hereinabove, this Court should affirm the trial court's grant of Summary Judgment in favor of Defendants, Dimitrios Dimitriades, M.D. and Memorial Hospital at Gulfport, and dismiss Plaintiff's Complaint against them, with prejudice. th RESPECTFULLY SUBMITTED, this the 10 day of September, 2015. DIMITRIOS DIMITRIADES, M.D. AND MEMORIAL HOSPITAL AT GULFPORT BY: SAMSON & POWERS, PLLC SAMSON & POWERS, PLLC 2217 Pass Road (39501) P.O. Box 1417, Gulfport, MS 39502-1417 Telephone: 228/822-1109 Facsimile: 228/822-2317 BY: /s/ Roland F. Samson, III ROLAND F. SAMSON, III Mississippi Bar No. 8764 19

CERTIFICATE OF SERVICE I, ROLAND F. SAMSON, III, of the law firm of Samson & Powers, PLLC, do hereby certify that I have this day electronically filed the foregoing with the Clerk of Court using the MEC system, which sent notification of such filing to the following: Stephen Burrow, Esq., Jonathan B. Fairbank, Esq., Edward Gibson, Esq., John F. Hawkins, Esq., James H. Heidelberg, Esq. and Stephen G. Peresich, Esq., and I hereby certify that I have mailed, by United States Mail, postage prepaid, a true and correct copy of the above and foregoing to the following: Honorable Lawrence P. Bourgeois, Jr. Circuit Court Judge P.O. Box 1461 Gulfport, MS 39502-1461 th THIS, the 10 day of September, 2015. /s/ Roland F. Samson, III ROLAND F. SAMSON, III MS BAR NO. 8764 SAMSON & POWERS, PLLC Attorneys at Law 2217 Pass Road (39501) P.O. Box 1417, Gulfport, MS 39502-1417 Telephone: 228/822-1109 Facsimile: 228/822-2317 20