The case of a nursing home resident whose leg had to be amputated as a result of an uncontrolled infection will be allowed to move forward, a state supreme court panel ruled recently.
In Boyd v. Nunez, the trial court judge had denied the plaintiff the right to press forward with his nursing home neglect lawsuit on the grounds that an expert witness hadn’t been deposed in time.
An appellate court upheld that ruling, but the Mississippi Supreme Court reversed it, on the grounds that the sanction by the judge was improper because the judge never considered the underlying reason for the missed deadline – which was that the doctor set to testify had fallen ill.
This reversal means the plaintiff will have the opportunity to have his case heard and seek redress for the poor treatment he received.
The state supreme court records don’t offer up much about the underlying claim in detail. But what we do know is that the plaintiff received care at nursing home for about six months back in 2004. During that time, he suffered an infection that was reportedly due to deficient care he received on behalf of the nursing home staff and the medical doctor who oversaw the facility.
The infection spread out-of-control, and became so severe that it warranted an amputation of the patient’s leg.
The plaintiff filed suit against both the doctor and the nursing home. Although not necessarily required in nursing home abuse and neglect litigation, expert witnesses testifying to medical conditions can be extremely helpful. In medical malpractice cases or those where a medical doctor is facing possible sanctions, state law requires that someone of equal education and/or training be used if technical testimony is to be admitted.
In this case, the plaintiff timely designated as his medical expert a doctor with similar qualifications as the man he was suing. After receiving this information, the defendant doctor requested further supplementation. When this was not forthcoming, his lawyers filed a motion to compel, offering up some potential dates to depose the plaintiff’s expert witness.
In response, the plaintiff offered additional supplemental information and requested a continuance. The judge did not rule on the continuance motion, saying he was not inclined to push back the trial.
A deposition date was set for the plaintiff’s expert witness. However, one day prior to the deposition, the doctor had fallen ill and reported he would be unable to make it. The defense claimed they received no notice of this until the following Monday.
The plaintiff argued the doctor’s illness was unforeseen and again requested a continuance and a new deposition date. The judge refused, and ruled that the expert witness would not be allowed to testify on the plaintiff’s behalf.
This would effectively kill the case, and indeed, the judge granted a request for a summary judgment on the defendant doctor’s behalf.
(The claims against the nursing home and its other staff, meanwhile, had been settled out-of-court.)
The state supreme court later concluded that both the trial and appellate courts analyzed the incorrect statute, and that the plaintiff should not be punished for an unforeseen illness suffered by someone so critical to the case.
Amputations resulting from severe infections acquired at nursing homes are completely preventable, and we are encouraged that this plaintiff will be granted his day in court.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Boyd v. Nunez, January 9, 2014, Mississippi Supreme Court
More Blog Entries:
Nursing Home Neglect Case Will Move Forward, Dec. 31, 2014, Boca Raton Nursing Home Negligence Lawyer Blog