NELSON v. ENID MEDICAL ASSOCIATES, INC.
Case Number: 110665
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 06/14/2016
2016 OK 69
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
WILLIAM P. NELSON, and JON NELSON, individually and as Co-Personal Representatives and/or Co-Executors of the Estate of Ethel A. Nelson, and as Co-Trustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel A. Nelson, Plaintiffs/Appellants,
v.
ENID MEDICAL ASSOCIATES, INC., and DAVID SHEPHERD, Defendants/Appellees,
and
UNIVERSAL HEALTH SERVICES, INC., (UHS), individually and d/b/a St. Mary‘s Regional Medical Center; UHS OF OKLAHOMA, INC., individually and d/b/a St. Mary‘s Regional Medical Center, ST. MARY‘S REGIONAL MEDICAL CENTER, HENRY D. VAUGHAN, a.k.a H. DEAN VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a H. DEAN VAUGHN, RONALD W. SHRECK, and ENID EMERGENCY PHYSICIANS, L.L.P., Defendants.
CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. I
¶0 A medical malpractice action was brought against several defendants in the District Court for Garfield County. The District Court, Hon. Dennis Hladik, District Judge, granted motions to exclude testimony and for summary judgment requested by two defendants. The trial judge directed entry of a final judgment for the two defendants and certified the order for immediate review. Plaintiffs appealed and the Oklahoma Court of Civil Appeals, Division I, affirmed the order granting summary judgment. Plaintiffs sought certiorari from this Court. We hold the opinions of the two witnesses on the issue of causation satisfied the requirements of
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED; AND THE PROCEEDING IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT
Robert C. Smith, Jr., Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Oklahoma, for Appellants.
Hilton H. Walters, R. Gene Stanley, Rife Walters Stanley & Natarajan LLP, Oklahoma City, Oklahoma, for Appellees.
EDMONDSON, J.
¶1 In a medical malpractice action we are asked to review orders excluding testimony from plaintiffs’ two expert witnesses and a summary judgment granted to defendants based upon the excluded testimony. We conclude the testimony should not have been excluded. We reverse the orders of the District Court excluding the testimony and granting summary judgment, and remand the cause for further proceedings consistent with the Court‘s opinion.
¶2 Mrs. Nelson went to the Emergency Department of St. Mary‘s Regional Medical Center seeking medical assistance at 7:20 p.m. on the evening of July 21, 2006. The emergency room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson‘s internist and primary care provider. Dr. Shepherd instructed Dr. Vaughan to telephone Dr. Shreck, a surgeon. Dr. Shreck came to the hospital, reduced Mrs. Nelson‘s hernia, and she was admitted to the hospital.
¶3 One of the tests order by Dr. Vaughan was a CT scan. The CT scan showed free air in Mrs. Nelson‘s abdomen and required immediate surgery. The CT scan results were faxed to the hospital at 1:50 a.m. on the morning of July 22nd, but neither Dr. Vaughan or Dr. Shreck saw the report at that time.
¶4 The medical record indicates Dr. Shreck reduced Mrs. Nelson‘s incarcerated hernia by manipulation. Mrs. Nelson became septic, went into septic shock during the morning of July 22nd, and she had a cardiac arrest while being prepared for surgery to address a perforated or dead bowel. She was resuscitated. After the surgery, Mrs. Nelson was given dopamine and Levophed to raise and control her blood pressure. At 3:00 p.m. on July 22nd, Dr. Shepherd switched Mrs. Nelson‘s medication to vasopressin. At approximately 11:00 p.m., Mrs. Nelson‘s blood pressure started to fall, her pulse became unstable and she died.
¶5 A medical malpractice action was brought against Mrs. Nelson‘s medical providers for her last illness. Two defendants, Dr. Shepherd and Enid Medical Associates, moved to exclude the proposed testimony of plaintiffs’ two expert witnesses. They argued each witness had not provided legally proper testimony on the issue of the cause of Mrs. Nelson‘s demise because the testimony did not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The two defendants also sought summary judgment because the causation element of the malpractice claim action was missing from plaintiffs’ claim.
¶6 The trial court ruled inadmissible the testimony from plaintiffs’ two expert witnesses and granted summary judgment to the two defendants. The trial court made an express determination that there was no just reason for delay and expressly directed the filing of a final judgment. The plaintiffs appealed and the Court of Civil Appeals affirmed the trial court‘s order. This Court granted plaintiffs’ petition for certiorari.
Appellate Review Standard for Summary Judgment and a Daubert Order Excluding Testimony on Causation
¶7 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment.1 Summary judgment is proper when a party is entitled to judgment “as a matter of law” based upon the submitted evidentiary materials.2
¶8 Plaintiffs’ action is based upon allegations that the two defendants proximately caused the injuries. A medical malpractice claim, like all negligence claims, contains three elements: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty and (3) plaintiff‘s injuries proximately caused by the defendant‘s failure to exercise the required duty of care.3
¶9 Evidence of causation necessary for a negligence action, proximate cause,4 is usually an issue of fact to be determined by a jury; and proximate causation “becomes a question of law for the court only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury.”5 If a defendant establishes there was no legally cognizable causal connection between the defendant‘s conduct and the injuries suffered by the plaintiff, then the issue of causation becomes a question of law, and a defendant is entitled to summary judgment as a matter of law.6
Proximate cause consists of both “cause in fact” and “legal cause,” the former contains the threshold “but for” causation issue, while the latter is a determination whether liability should be imposed as a matter of law where cause in fact has been established. Jones v. Mercy Health Center, Inc., 2006 OK 83, ¶ 15, 155 P.3d at 14, citing McKellips v. St. Francis Hosp. Inc., 1987 OK 69, ¶ 9, 741 P.2d 467, 470 and Akin v. Missouri Pacific R. Co., 1998 OK 102, n. 79, 977 P.2d 1040, 1054. Akin relies upon W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 41, at 263 (5th ed. 1984).
Notes
Christian v. Gray, 2003 OK 10, at ¶ 44, 65 P.3d at 609.
The U. S. Court of Appeals for the Tenth Circuit reviews de novo “the question of whether the district court applied the proper legal test in admitting an expert‘s testimony.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). In addition to reviewing de novo the application of the proper standard and actually performing a gatekeeper role in the first instance, the federal appellate court also determines whether a federal district court‘s actual application of Daubert was an abuse of discretion: “we will not disturb the district court‘s ruling unless it is ‘arbitrary, capricious, whimsical or manifestly unreasonable’ or when we are convinced that the district court ‘made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.‘” Dodge v. Cotter Corp., 328 F.3d 1212 at 1223, quoting Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163-64 (10th Cir.2000).
Bitler v. A. O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004) quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999).
See also
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The Federal Judicial Center, Reference Manual on Scientific Evidence, 463 (2d ed.2000) (“To arrive at an underlying internal cause, the physician must process the multiple symptoms and signs from a working diagnosis into a single diagnosis or disease, such as multiple vascular strokes as an explanation for dementia).
The Federal Judicial Center, Reference Manual on Scientific Evidence, 468 (2d ed.2000), (Evaluation of External Causation: “For the physician, both causal and probabilistic reasoning are the basis for establishing external causation, which is the relationship between environmental factors [work, chemical exposures, lifestyle, medications] and illness, as well as making the more common analysis of internal causation....“).