446 P.3d 132
Utah Ct. App.2019Background
- Morley Sprague, an elderly man with advanced multiple sclerosis, was admitted to Avalon Care Center and presented with a small stage-one pressure ulcer on admission that worsened to exposed bone and infection within a month; he later died after unsuccessful treatments over ~22 months.
- Sprague’s estate sued Avalon for medical malpractice and wrongful death, alleging multiple breaches in wound care during a 29-day stay at Avalon (seven specific failures alleged by plaintiff’s wound-care expert).
- At trial plaintiff presented extensive expert testimony (including a wound-care nurse Kevin Emmons, treating physician Scott Southworth, and physicians Mary Parsons and David Pegues). Avalon presented a wound-care physician (Dr. Kwon Lee) who testified the ulcer was unavoidable.
- Avalon moved for a partial directed verdict on five of the seven alleged breaches, arguing plaintiff’s expert had not stated opinions to a reasonable degree of medical probability; the trial court denied the motion.
- The court admitted a medical-expense summary prepared by Emmons and allowed various expert opinions and cross-examination lines; the jury returned a $2 million verdict for Sprague (eight of eight jurors found breach; seven found breach proximately caused death).
- Avalon appealed, challenging denial of the directed verdict and admission/scope of several experts’ testimony; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of partial directed verdict (sufficiency of expert certainty) | Emmons repeatedly prefaced opinions as formed to a reasonable degree of medical probability and his testimony overall showed sufficient certainty | Emmons failed to state each opinion “to a reasonable degree of medical probability,” so five alleged breaches lacked admissible expert support | Court: Expert need not repeat the exact phrase for each opinion; Emmons’s testimony read as a whole met the reliability threshold and denial was proper |
| Admissibility of Southworth’s testimony on nursing standard of care | Southworth could testify about wound care from his physician perspective and the court limited that testimony to his medical knowledge | Avalon: a physician cannot testify to nursing standard of care and this was prejudicial | Court: Court partially sustained objection and gave limiting instruction; testimony admissible in limited scope and no demonstrated prejudice |
| Scope of cross-examination of Avalon’s expert (Dr. Lee) | Plaintiff could impeach Lee and probe general nursing standards because Lee testified broadly on direct | Avalon: Lee was designated to testify narrowly about Fonoti and causation; cross-exam went beyond scope | Court: Cross-examination permitted; rule 611(b) allows broad inquiry and impeachment when expert testified broadly on direct |
| Admission of Emmons’s medical-expense summary; Rule 703 and Rule 26 disclosure | Emmons personally reviewed the bills and relied on records; summary was accurate and Avalon received records | Avalon: Emmons didn’t identify each provider in his report, so he lacked personal knowledge and disclosure was defective under Rule 26(a)(4)(B) | Court: Summary admissible under Rule 703; Avalon abandoned/ invited relief on disclosure objection and conceded accuracy, so no preserved prejudicial error |
| Admission of treating physician Parsons’s and Dr. Pegues’s causation opinions and death certificate | Parsons and Pegues had foundational experience, reviewed records, treated Sprague, and opined to reasonable medical probability that ulcer caused death; death certificate cumulative | Avalon: testimony and death certificate lacked required indicia of reliability for expert causation | Court: Parsons’s foundation satisfied Rules 702/703; death certificate cumulative; Pegues’s causation testimony not preserved for appeal; no abuse of discretion shown |
Key Cases Cited
- Liley v. Cedar Springs Ranch Inc., 405 P.3d 817 (Utah Ct. App. 2017) (directed verdict review and deference to trial court on sufficiency of evidence)
- Morgan v. Intermountain Health Care, Inc., 263 P.3d 405 (Utah Ct. App. 2011) (elements of medical malpractice require expert proof of standard, breach, causation, damages)
- Dalley v. Utah Valley Regional Medical Center, 791 P.2d 193 (Utah 1990) (medical malpractice generally requires expert testimony on standard and proximate cause)
- State v. Jarrell, 608 P.2d 218 (Utah 1980) (expert medical opinions must be more than speculation and expressed with reasonable certainty)
- Campbell v. State Farm Mutual Automobile Insurance Co., 65 P.3d 1134 (Utah 2001) (reversal for expert testimony error requires a showing of prejudice)