Smith v. Hines
2011 OK 51
| Okla. | 2011Background
- Smith, a police officer, underwent knee arthroscopy for chondromalacia on Jan 23, 2006; post-op left thigh/femoral nerve function deteriorated with atrophy; EMG/nerve studies urged MRI to assess compression; neurologist opined injury likely occurred during surgery but cautioned need for more information; MRI later showed no definite femoral nerve issue; surgeon asserted no nerve damage occurred; plaintiff sued for medical negligence and res ipsa loquitur; trial court granted summary judgment to surgeon; Zeier decision post-dates filing and affects affidavit requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation proof to survive summary judgment | Smith need not prove certainty; neurologist's opinion suffices to raise triable issue | Causation requires expert proof and probability beyond guesswork | Summary judgment improper; prima facie causation shown by expert and facts raise inference of negligence. |
| Res ipsa loquitur applicability | Res ipsa may apply given exclusive control by surgeon and unusual thigh injury | Res ipsa not guaranteed; disputed instrumentality and causation | Res ipsa loquitur issues for trial; not proper for SJ; questions of fact remain. |
| Effect of Zeier and affidavit requirements on pleading | Affidavit rule not required in window; Zeier decisions void local statute impact | Affidavit requirements govern medical-negligence actions; compliance needed | Affidavit requirement not dispositive here; does not foreclose prima facie case. |
Key Cases Cited
- Robinson v. Oklahoma Nephrology Associates, Inc., 154 P.3d 1250 (Okla. 2007) (causation proof in medical negligence cases; expert not always needed to prove negligence may be shown by circumstance)
- Cohenour v. Smart, 240 P.2d 91 (Okla. 1951) (testimony of possibility insufficient without corroboration; need probable causation)
- Harder v. F.C. Clinton, Inc., 948 P.2d 298 (Okla. 1997) (re res ipsa: raises inference; jury resolution when in conflict; directed verdict improper)
- Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 2006) (constitutionality of affidavit requirement; res ipsa may obviate need for expert proof)
- Sisson By and Through Allen v. Elkins, 801 P.2d 722 (Okla. 1990) (explanation of res ipsa doctrine and its relation to negligence inference)