Kelly ex rel. Williams v. Schumpert

GARRETT, J.,

concurring.

hi respectfully concur in the result. The issue presented by this appeal is whether the lower court correctly ruled that the plaintiffs medical malpractice claim against Dr. Davis was prescribed. Since the plaintiff inexplicably presented no evidence whatsoever in the court below to support her position that she was unaware until the summer of 2014 that Dr. Davis had misdiagnosed her son’s condition, the trial court correctly ruled that the plaintiff failed to carry the burden of proof. The plaintiff clearly understood that the burden of proof was on her. She acknowledged this on the first court date on which the prescription exception was scheduled. The hearing was continued. The burden of proof still remained on her when the matter was eventually re-docketed and heard on June 1, 2015. No evidence was presented by thé plaintiff.

The trial court was clearly correct under the procedural posture presented by this case because the plaintiff produced no evidence. -Although the plaintiff continues to argue in her briefs she did not discover Dr. Davis’s role until the summer of 2014, there is simply no evidence presented by the plaintiff to support her position. Many of the matters now addressed in the majority opinion were never urged below, by *20the plaintiff, were not considered below, and are not now before this court.