Date: 01-07-2013

Case Style: Joseph P. Fanning v. James E. Mays, III, M.D.

Case Number: CJ-2010-6620

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Raphael Thomas Glapion

Defendant's Attorney: Randall L. Sewell and Blaine R. Boyd

Description: Joseph P. Fanning and Sarah F. Fanning sued James E. Mays, III, M.D. and James E. Mays, III, M.D., Inc. on medical negligence (medical malpractice) theories claiming:

1. Plaintiff Joseph P. Fanning (“Plaintiff’) is and was at all times pertinent to this Petition a resident of Oklahoma County, State of Oklahoma.

2. Plaintiff Sarah F. Fanning is and was at all times pertinent to this Petition a resident of Oklahoma County, State of Oklahoma. Sarah F. Fanning is the lawfully wed spouse of Plaintiff Joseph P. Fanning and brings her claim in said capacity.

3. Defendant James E. Mays III, M.D. is and was at all times pertinent to this Petition a physician licensed under the laws of the State of Oklahoma and practicing as such within Oklahoma County, State of Oklahoma, and provided medical care to Plaintiff wi thin Oklahoma County as more for fully set forth below.

4. Defendant James E. Mays III, M.D, Inc. (“Mays, Inc.”) is, upon information and belief, an Oklahoma Corporation with a principal place of business located in Oldahoma County. Mays, Inc. performs, among other healthcare services, adult male sterilization procedures, including but not limited to vasectomies and related medical procedures, for Oklahoma patients, including Plaintiff as more for fully set forth below. Mays, Inc. grants staff privileges to and/or hires physicians, physician’s assistants, nurses, technicians, and other healthcare employees who provide said medical services to patients, including Plaintiff.

JURISDICTION AND VENUE

5. Jurisdiction is proper pursuant to OKI,A. STAT., tit. 12, § 2004(1); venue in this district is proper pursuant to OKLA. STAT., tit. 12, §* 130, 134, 139 and 143.

PRELIMINARY STATEMENT OF THE CASE

6. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

7. On or about August 15, 2008, Plaintiff Joseph P. Faiming presented to Defendants’ care for a bilateral vasectomy. Rather than appropriately performing a right-side vasectomy, Defendants wantonly, recklessly and otherwise negligently ligated vascular structures to the said right testicle, preventing the flow of adequate blood supply to the testicle, and consequently requiring an epididymectomy, and subsequently causing testicular atrophy. In addition to the loss of his testicle, Plaintiff has endured severe and substantial pain in both mind and body, and related damages, including, but not limited to, permanent disfigurement and loss of dignity.

FIRST CAUSE OF ACTION

Negligence

8. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition,

9. Defendants’ failure to render appropriate medical care, as more hilly set forth in the Preliminary Statement of the Case, fell below the minimally acceptable standards of care for practitioners in the same or similar profession or practice, and, as such, was a breach of the Defendants’ professional duties and thus constitutes negligence. Defendants owed Plaintiffs a duly of care under the circumstances that was consistent with accepted medical standards of practice, to wit, Defendants owed a duty in which they were to exercise reasonable and ordinary care and attention for Plaintiff Joe Fanning under all the circumstances that would be appropriate for his physical, emotional and mental well-being. 10. Defendants’ acts or omissions in the rendition of healthcare services, as more hilly set forth in the Preliminary Statement of the Case, fell below the minimum andlor accepted standards of medical care andlor was a breach of Defendant’s duly of reasonable care owing to Plaintiff, and directly and proximately caused Plaintiff to sustain personal injuries, specifically including the loss of his testicle, and, moreover, including, without limitation, permanent physical, mental and emotional pain and suffering.

SECOND CAUSE OF ACTION

Gross Negligence

11. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

12. Defendants’ wanton and reckless rendition of medical care to Plaintiff, as more fully set forth in the Preliminary Statement of the Case, constitutes gross negligence, to wit, Defendants were aware or should have been aware that there was a substantial and unnecessary risk that their reckless provision of medical care would cause serious and permanent injury to Plaintiff.

13. Defendant’s grossly negligent treatment of Plaintiff directly and proximately caused Plaintiff’s injuries.

THIRD CAUSE OF ACTION

Intentional Infliction of Emotional Distress

14. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

15. Defendant’s failure or refusal to exercise reasonable and ordinary care and attention for Plaintiff, as more fully set forth in the Preliminary Statement of the Case, committed intentionally, willfully, and/or in reckless disregard of Plaintiff s physical, mental and emotional well-being, constitutes extreme and outrageous conduct which no person should reasonably be expected to endure.

16. Defendants’ intentional, willful, and/or reckless disregard for Plaintiff’s well-being was the direct and immediate cause of the loss of Plaintiffs testicle, and further caused Plaintiff to sustain severe physical, mental and emotional pain and suffering.

FOURTH CAUSE OF ACTION

Negligent Infliction of Emotional Distress

17. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

18. Defendants’ failure to exercise reasonable and ordinary care and attention for Plaintiff, as more frilly set forth in the Preliminary Statement of the Case, was in disregard of Plaintiff’s physical, mental and emotional welfare.

19. Defendants’ failure to appropriately treat Plaintiff under the circumstances presented, the same of which was the direct and immediate cause of the loss of Plaintiff’s testicle, constitutes extreme and outrageous conduct which no person should reasonably be expected to endure, and further caused Plaintiff to sustain severe physical, mental and emotional pain and suffering.

FIFTH CAUSE OF ACTION

Negligent Hiring, Staffing, Training, and Supervision

20. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

21. Defendants owed Plaintiffa duty to ensure that appropriate medical care was provided by competent medical personnel; a duty to ensure that said personnel are properly and sufficiently trained in their profession; and a duty to supervise the care rendered to Plaintiff.

22. Defendants also had a duty to adopt, implement and follow appropriate policies and procedures to ensure the physical, mental and emotional welfare of patients entrusted to its care.

23. Defendants breached their duty of care by failing to hire, staff train, and supervise their medical personnel and by failing to supervise the care provided by same, thereby causing Plaintiff injuries,

SIXTH CAUSE OF ACTION

Breach of Contract

24. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

25. For good and valuable consideration, Plaintiffs entered into a contract with Defendants which contemplated, among other things, that the provision of medical services would be provided under an appropriate standard of care, and that Defendants would not cause Plaintiff any undue harm.

26. Plaintiffs assert that Defendants did not provide that which was promised, and thereby breached their contract, causing Plaintiffs damages in excess of $10,000.00.

SEVENTH CAUSE OF ACTION

Loss of Consortium

27. Plaintiffs restate and incorporate herein by reference the preceding and subsequent allegations of this Petition.

28. As a result of Defendants’ negligent treatment of Plaintiff Joseph P. Fanning, and injuries said Plaintiff sustained as a consequence thereof, Plaintiff Sarah F. Fanning has been denied her right to and expectation of the love, comfort, companionship, society, and services of her spouse, Plaintiff Joseph P. Fanning, and is entitled to recover therefor.

WHEREFORE, Plaintiffs respectthlly request that the Court rule in their favor and against Defendants, finding and ordering that Defendants owed Plaintiffs a duty of care consistent with accepted medical standards, and from which duty Defendants deviated and breached; that Defendants’ acts or omissions constitute negligence and/or a wanton and reckless disregard for Plaintiffs’ welfare; and that Plaintiffs are thereby entitled to recover damages in an amount in excess of $10,000, with the exact amount to be determined by a jury, for all damages proximately caused thereby, including, but not limited to, actual, compensatory and consequential damages; damages for permanent disfigurement and loss of dignity; damages for emotional, mental and physical pain and suffering; damages for current and future medical expenses; and punitive damages in excess of $10,000, with the exact amount to be determined by ajury. Plaintiffs further pray the Court find that Plaintiffs entered into a contract with Defendants, whereby Defendants were to perform particular medical services; that said services were not performed; that such failure of performance constitutes a breach of contract; and that Plaintiffs are entitled to recover all actual, compensatory, and consequential damages resulting from said breach. Finally, Plaintiffs request an award for the costs and expenses incurred in bringing this lawsuit; interest; attorney fees; and any other relief this Court deems fit and proper under the circumstances. Plaintiffs’ Affidavit in Support of Medical Malpractice Petition is attached in accordance with OKEA. STAT., tit. 12, § 19(A).

Defendant appeared and answered as follows:

Defendants deny generally each and every allegation in plaintiffs’ Petition which is not hereinafter specifically admitted. Furthermore, defendants deny generally each and every allegation in plaintiffs’ Petition which states, implies, or infers the medical services provided by the defendants was negligent or fell below the standard of care. Defendants are without sufficient information or knowledge as to the allegations contained in paragraph 1 and 2 of plaintiffs’ Petition, and, therefore, the same are denied, and strict proof is demanded thereof.

III.

With respect to paragraph 3 of plaintiffs’ Petition, defendants admit that James E. Mays, Ill, M.D., is a licensed physician practicing in Oklahoma County, State of Oklahoma, and that he provided medical care to plaintiff within Oklahoma County.

IV.

V.

With respect to paragraph 5 of plaintiffs’ Petition, defendants admit that venue and jurisdiction are proper with this Court.

VI.

With respect to paragraph 6 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

VII.

With respect to paragraph 7 of plaintiffs’ Petition, defendants admit that Dr. Mays performed a bilateral vasectomy on Joseph P. Fanning on or about August 15, 2008. Defendants deny the remaining allegations contained in paragraph 7 of plaintiffs’ Petition, and demand strict proof thereof.

With respect to paragraph 4 of p1 E. Mays, III, M.D., Inc., is an Oklahoma located in Oklahoma County, and that healthcare services, including, but not Paintiffs’ Petition, defendants admit that James corporation with its principle place of business the corporation is in the business of providing limited to, adult male sterilization procedures.

VIII.

With respect to paragraph B of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

IX.

Defendants admit that Dr. Mays had a patient/physician relationship with Joseph P. Fanning. Defendants deny the remaining allegations contained in paragraph 9 of plaintiffs’ Petition, and demand strict proof thereof.

X.

Defendants deny the allegations contained in paragraph 10 of plaintiffs’ Petition, and demand strict proof thereof.

XI.

With respect to paragraph 11 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

XII.

Defendants deny the allegations contained in paragraphs 1 2 and 13 of plaintiffs’ Petition, and demand strict proof thereof.

XIII.

With respect to paragraph 14 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

XIV.

Defendants deny the allegations contained in paragraph 15 and 1 6 of plaintiffs’ Petition, and demand strict proof thereof.

XV.

With respect to paragraph 1 7 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

XVI.

Defendants deny the allegations contained in paragraphs 1 8 and 1 9 of plaintiffs’ Petition, and demand strict proof thereof.

XVII.

With respect to paragraph 20 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

XVIII.

Defendants deny the allegations contained in paragraphs 21, 22 and 23 of plaintiffs’ Petition, and demand strict proof thereof.

XIX.

With respect to paragraph 24 of plaintiffs’ Petition, defendants deny all prior allegations unless specifically admitted.

XX.

Defendants denys the allegations contained in paragraphs 25 and 26 of plaintiffs’ Petition, and demands strict proof thereof.

XXI.

With respect to paragraph 27 of plaintiffs’ Petition, defendant denies all prior allegations unless specifically admitted.

XXII.

Defendants deny the allegations contained in paragraph 28 of plaintiffs’ Petition and demands strict proof thereof.

Affirmative Defenses

First Defense

Failure to state a claim upon which relief may be granted. Second Defense

Damages shall be governed under the applicable statutory caps. Third Defense Defendants contend the claim for punitive damages’s not only unfounded, but as applied under Oklahoma law, is violative of these defendants’ constitutional rights. Defendants contend 23 OS. § 9.1 is unconstitutional, overly vague, and violative of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment.

Fourth Defense

Defendants care and treatment of Joseph P. Fanning did not fall below accepted standards.

Fifth Defense

Defendants reserve the right to plead additional defenses, including additional affirmative defenses, within a reasonable time upon completion of discovery, or according to a scheduled established by the Court.

WHEREFORE, defendants, James E. Mays, Ill, M.D., and James E. Mays, Ill, M.D., Inc., pray that plaintiffs take nothing by virtue of their Petition, judgment be entered in defendants’ favor, and that defendants be awarded costs and such other just and equitable relief as the Court shall deem just.

Outcome: Defendant's verdict.

Plaintiff's Experts:

Defendant's Experts:

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