Montague, Pittman & Varnado, P.A.

MPV Law Blog

What You Need to Know About Medical Malpractice Cases

Monday, May 19, 2014

At Montague, Pittman & Varnado, we handle a numerous cases involving medical malpractice.  However, there are also numerous medical malpractice cases we decide not to take due to the difficulty in proving that a doctor’s negligence caused substantial injury.

In a medical malpractice case a plaintiff must prove certain elements.  Those elements are:  1) the defendant had a duty to conform to a standard of care, 2) the defendant breached the standard of care, 3) the defendant's breach was the proximate cause of the plaintiff's injuries, and 4) the plaintiff was substantially injured as a result of the defendant's breach. 

Therefore, the plaintiff’s success turns on the fact of whether the defendant’s breach was a proximate cause of the plaintiff’s injuries.  In most cases, the plaintiff must use testimony from an expert to prove the proximate cause element.  

In Cates v Woods, the Mississippi Court of Appeals addressed the expert testimony issues in a dental malpractice case.  The plaintiff sued her dentist for injuries to her neck during a routine visit to have an impression made of her bottom teeth. During her visit, the plaintiff's head was jerked back and forth while the dentist attempted to remove the tray of the compound from her mouth.  The intense jerking back and forth caused the plaintiff to sustain various neck injuries.   During trial, the plaintiff produced medical records indicating the injuries to her neck as proof.  However, the plaintiff did not provide any expert testimony on the proximate cause of her injuries.

An expert’s testimony is required in a medical malpractice case to prove proximate cause of the injury and the other elements. (In a very few cases, the layman's exception may suffice).  In this particular case, the plaintiff failed to designate an expert witness to testify to the proximate cause of her injury.  This mistake was enough for the trial court to grant summary judgment to the defendant.

The Mississippi Court of Appeals upheld the trial court’s dismissal of the case due to the absence of any expert testimony provided by the plaintiff. The appeals court stated, “Medical negligence may be established only by expert testimony, but there is an exception where a layman can observe and understand the negligence as a matter of common sense and practical experience.” 

As you can see, an expert opinion is almost always needed to prevail in a medical malpractice case.   At Montague, Pittman, and Varnado, one of our first considerations when representing you in a medical malpractice case is whether we would be able to produce an expert opinion on the proximate causes of your injury.  Our attorneys have years of experience in representing clients in medical malpractice cases.  Our experience assists us in giving you excellent advice and representation. 

VALIDITY OF WILLS OR DEEDS MAY BE CHALLENGED DUE TO POSSIBLE UNDUE INFLUENCE

Monday, May 5, 2014

When a person signs a Last Will and Testament in Mississippi they are presumed to understand the effects of signing such a document, and they are also presumed to be acting of their own free will and not being influenced by another person in making the Will.  These presumptions can be overcome by evidence to the contrary.  The validity of a Will may be challenged if the persons challenging the Will can prove that the person signing the Will (called the “Testator”) lacked the mental capacity to understand the significance of the document he or she was signing.  Proof of lack of mental capacity can be difficult in Mississippi because our courts have held that a person can sign a valid Will in a “lucid interval” even though they are usually not capable of understanding the significance of a Will.

Undue influence in the making of a Will can also invalidate a Will.  The party challenging the Will must prove that the Testator was influenced in making the Will by a person who exerted such financial or psychological control over the Testator so that the Testator was not acting on their own free will.  Typically this assertion involves a situation in which an older person was dependent on someone else to the point that independent free will could not be exercised when the other party exerted duress to compel the Testator to favor that party in the Will.

The Mississippi Court of Appeals recently decided a case which applied the legal principal of undue influence to signing of a Deed.  Conveyances of property can also be set aside if the court finds that the person signing a Deed did not do so of their own free will but was coerced into doing so by the person who obtained the title to the property in the Deed.

The attorneys at Montague, Pittman & Varnado are experienced and skilled in preparing Wills and Deeds and have represented parties in cases where undue influence or lack of capacity were alleged.


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