BURLESON v. WAYNE
2021 OK CIV APP 25
| Okla. Civ. App. | 2021Background
- On August 25, 2014 Dr. Ivan Wayne harvested rib cartilage from Bridgette Burleson to repair her nasal septum; two days later Burleson discovered her left breast implant was deflated.
- Burleson sued for medical negligence and moved for partial summary judgment on liability and causation, relying on res ipsa loquitur rather than affirmative expert proof of breach and causation.
- Plaintiff submitted an unsworn expert letter and later the expert (Dr. Duboys) testified he believed implant rupture is a possible complication of rib-harvest and that rupture can occur even when the procedure meets the standard of care; he could not say whether Wayne met the standard or what caused this rupture.
- The trial court granted partial summary judgment for Burleson on liability and causation under res ipsa loquitur and limited the jury trial to damages; the jury awarded $125,000.
- On appeal the Court of Civil Appeals held the record did not establish the foundational facts required for res ipsa loquitur (including that the injury would not ordinarily occur absent negligence) and that factual disputes remained about timing/causation; the court reversed the judgment and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of res ipsa loquitur to establish negligence and support partial summary judgment | Burleson: implant deflated after surgery from an instrumentality solely controlled by Wayne; therefore negligence may be presumed | Wayne: timing and cause disputed; plaintiff failed to prove the injury would not occur absent negligence; expert admitted rupture can happen without negligence | Reversed — plaintiff failed to establish res ipsa foundational facts; summary judgment on liability/causation improper |
| Sufficiency of plaintiff's expert evidence on standard of care and causation | Burleson: her expert’s opinions (letter/testimony) support negligence or at least permit res ipsa inference | Wayne: expert conceded rupture can occur despite proper care and could not opine Wayne breached or caused the rupture | Held for Wayne — plaintiff did not present expert proof that injury would not ordinarily occur absent negligence; res ipsa foundation lacking |
| Whether implant deflation occurred during surgery (timing/causation) | Burleson: implant was intact pre-op and deflated within two days post-op, implying intraoperative damage | Wayne: two-day delay and other evidence (prior contact by plastic surgeon) create a factual dispute about when/why implant deflated | Court: timing is disputed; cannot be resolved for summary judgment in plaintiff’s favor |
| Procedural propriety of trying damages only | Burleson: partial summary judgment resolved liability so trial on damages alone was proper | Wayne: liability was not established as a matter of law, so damages-only trial was improper | Held: trial on damages only was improper because liability/causation were not established; judgment reversed and remanded |
Key Cases Cited
- Smith v. Hines, 261 P.3d 1129 (Okla. 2011) (explains res ipsa loquitur rule and expert testimony interplay)
- Boxberger v. Martin, 522 P.2d 370 (Okla. 1976) (expert testimony not required to establish cause when competent non-expert evidence shows cause with reasonable certainty)
- Harder v. F.C. Clinton, Inc., 948 P.2d 298 (Okla. 1997) (court must decide if res ipsa inference is appropriate; factual conflict may require jury)
- Sisson v. Elkins, 801 P.2d 722 (Okla. 1990) (negligence not presumed from mere unsuccessful treatment)
- Mitchell v. Cox, 948 P.2d 317 (Okla. 1997) (policy rationale for shifting burden under res ipsa)
- Grayson v. State by & through Children’s Hosp. of Okla., 838 P.2d 546 (Okla. Civ. App. 1992) (medical negligence ordinarily requires expert proof of standard and causation)
- Thompson v. Presbyterian Hosp., Inc., 652 P.2d 260 (Okla. 1982) (elements of negligence claim)
- Ross v. City of Shawnee, 683 P.2d 535 (Okla. 1984) (summary judgment review framework)