Tamilia v. Gulf Coast Med Ctr

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-60303
Summary Calendar
TAMILIA, JOSEPHINE, ESTATE OF
Plaintiff - Appellant
VERSUS
GULF COAST MEDICAL CENTER
Defendant - Appellee
Appeal from the United States District Court
For the Southern District of Mississippi, Biloxi
1:02-CV-53
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Nicholas Tamilia challenges the district court’s order
granting summary judgment in favor of defendant, Gulf Coast Medical
Center in this wrongful death action filed by appellant following
the death of his wife, Josephine Tamilia.
Appellant, who is pro se, alleged in his sworn complaint that

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in March 2001 his wife became ill while they were traveling near
Biloxi, Mississippi. He brought her to the defendant’s medical
center in Biloxi. His wife was put on a respirator and at about
6:30 p.m. on March 7, 2001 his wife asked appellant to get her
something to eat. When he left she was awake and writing in her
diary. When he returned with cheeseburgers ten or fifteen minutes
later appellant’s wife was unconscious and never regained
consciousness thereafter. When Mr. Tamilia returned he also saw
that she had black and blue marks on her neck, face and chest and
her purse was missing. A nurse returned Mrs. Tamilia’s purse a few
minutes after he returned to the room.
Mrs. Tamilia never regained consciousness and was transported
to Memorial Hospital in Gulfport the next day around 11:00 p.m.
Around 1:00 a.m. on March 9, 2001 appellant was told that his wife
had died.
Appellant in later pleadings asserted that he claimed damages
for assault and battery as well as negligent failure of the
hospital to train and supervise its staff. The district court
first granted summary judgment in favor of the defendant on the
intentional tort claims because they were time barred under the
Mississippi one year statute of limitations for intentional torts.
Appellant does not challenge that ruling. The district court
initially denied the defendant’s motion for summary judgment on the
negligence claims but then on reconsideration granted the
defendant’s motion to dismiss the negligence claims as well.

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The defendant Gulf Coast Hospital filed no supporting
documentation in support of the summary judgment except for the
deposition of appellant. Gulf Coast did not rely on its hospital
records or file any affidavits from its employees or
representatives explaining what occurred during Mrs. Tamilia’s
hospitalization. Gulf Coast simply relied on the lack of factual
support by the plaintiff to support its claims that Gulf Coast, its
employees and representatives were negligent.
Under the circumstances presented in today’s case where the
defendant stands mute as to any explanation for the sudden change
in Mrs. Tamilia’s condition while she was under the defendant’s
care, including Mr. Tamilia’s ten or fifteen minute absence, or a
general explanation of its treatment of Mrs. Tamilia and her
reaction to that treatment, we conclude that plaintiff’s sworn
complaint is sufficient to raise an inference that defendant’s
employees were negligent. This completely un-rebutted inference
precludes summary judgment.
In light of our conclusion that the district court erred in
granting summary judgment to the defendant on plaintiff’s
negligence claims, we vacate the district court’s judgment and
remand this case to the district court for further proceedings
consistent with this opinion.
VACATED AND REMANDED.

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