The appellants are the surviving children and parents of Judy Lynch (“the patient” or “Mrs. Lynch”), who died at the age of 53 as a consequence of a lethal overdose of Oxycontin pain medication while Mrs. Lynch was a post-surgical inpatient at University Specialty Hospital (“the hospital”), appel-lee. In opposition to a motion for summary judgment filed by the hospital, the patient produced expert testimony expressing an opinion that the patient’s death should not have occurred in the absence of negligence on the part of the defendant hospital. The Circuit Court for Baltimore City was not persuaded that the testimony of the patient’s experts was sufficient to take the claim of medical negligence to the jury, and entered summary judgment for the hospital. Appellants noted this appeal.
ISSUES
Appellants present two questions:
I. Did the trial court err in granting summary judgment by not allowing the appellants to rely upon Meda v. Brown in establishing legally sufficient evidence of negligence?
II. Did the trial court err in granting summary judgment by not finding legally sufficient evidence to meet the requirement of res ipsa loquitur?
Because we conclude that the expert testimony presented by appellants was legally sufficient to take their case to the jury under
Meda v. Brown,
FACTS
The evidentiary documents and deposition transcripts in the record reflect the following. Having previously undergone surgery at another facility, Mrs. Lynch was admitted to appellee’s facility for wound care and rehabilitation on March 13, 2002. During her stay at the appellee hospital, she received multiple prescription medications, including Oxycontin, a narcotic medication used for relief of pain. She died on March 24, 2002, and the cause of her death was a toxic overdose of Oxycontin.
At approximately 7:00 p.m. on March 23, 2002, Alma Ebra-do, R.N., came on duty and was assigned to care for Mrs. Lynch. According to Nurse Ebrado’s deposition testimony, she administered 20 mg of Oxyfast (a fast acting form of Oxycontin) to Mrs. Lynch at 9:00 p.m., and administered the daily order medications, which included 40 mg of Oxycontin, at 10:00 p.m. Nurse
At 7:00 a.m. on March 24, 2002, Nurse Ebrado’s shift ended, and she was relieved by Denise Mosley, R.N. According to Nurse Mosley’s deposition testimony, she and Nurse Ebrado physically counted the narcotics assigned to Mrs. Lynch’s room and confirmed that no medication was missing. At 7:25 a.m. Nurse Mosley entered Mrs. Lynch’s room and found her blue, with frothy secretions coming from her mouth. A “code blue” was called, and Mrs. Lynch was transferred to University of Maryland Medical Center, but despite efforts to resuscitate her, Mrs. Lynch was pronounced dead at 8:20 a.m.
On March 25, 2002, the Medical Examiner’s Office for the State of Maryland performed an autopsy. The medical examiner concluded that Mrs. Lynch died of “narcotic intoxication complicating chronic obstructive pulmonary disease.” The evidence established — and the parties agree — that Mrs. Lynch died as a result of a lethal dose of Oxycontin.
The deposition testimony of Nurse Mosley included evidence that the hospital’s policy was to strictly control and limit access to Oxycontin. The hospital had “protocols ... that there is a certain way that nurses have to treat narcotics in the dispensing of narcotics.” The protocols, which were made part of the record, describe the steps that must be taken in administering medications, and state in part:
Check patient’s ID band for name and medical record number against MAR/TAR. Administering nurse m,ust witness medication consumption. Never leave medications unattended at the bedside. Medications may not be kept at the bedside for self administration unless ordered by the physician/designee.
(Emphasis added). Nurse Mosley also testified that the only people supplying Oxycontin to Mrs. Lynch were staff members of the hospital.
Although the hospital suggested it would have been possible for a family member to provide the excess Oxycontin, and noted that there was evidence that one of Mrs. Lynch’s daughters had taken Oxycontin many years before her mother’s hospitalization, that daughter testified that she had had no access to Oxycontin as of 2002. There was also testimony that no family members were present at the hospital when Mrs. Lynch died. Deposition testimony of the family members reflected that they had last visited Mrs. Lynch two days prior to her death.
Appellants designated two experts — Gary Witman, M.D., and Yale Caplin, Ph.D. — to testify in support of their claim of medical negligence. The deposition testimony of both experts expressed the opinion that the lethal dose of Oxycontin was ingested within approximately one hour of Mrs. Lynch’s death. Dr. Witman testified that the lethal concentration of Oxycontin could not have resulted from the dosage of Oxycontin prescribed by Mrs. Lynch’s treating physician, stating: “[I]t is impossible that the dose of medication that was prescribed was responsible for the drug levels that this patient had at the time of her death.”
Addressing the standard of care issue, Dr. Witman acknowledged that he could not determine specifically how Mrs. Lynch got the lethal dose of Oxycontin, or who administered it, but he nevertheless expressed his opinion that the appellee breached the standard of care it owed to the patient. In this regard, Dr. Witman
Q. So you do see violations of the standard of care in this case, you’re just not sure who committed them; is that correct?
A. Yes, counsel.
A. What I stated is that the type of occurrence in a hospital setting, with a toxic level of Oxycodone, which should not occur except if there is negligence.
University Specialty Hospital moved for summary judgment, arguing that appellants’ expert testimony was insufficient to make out a prima facie case of negligence under Meda, supra. Appellee also contended that Maryland law does not permit recovery under the doctrine of res ipsa loquitur in medical malpractice cases. In granting the defendant’s motion for summary judgment, the motions judge ruled that Meda was not applicable. The motions judge further ruled that appellants were not entitled to have their case submitted to the jury on a res ipsa loquitur theory.
DISCUSSION
Having reviewed in a light most favorable to the non-moving party the documents and transcripts submitted in connection with the motion for summary judgment, we are persuaded that the appellants presented sufficient evidence, including expert testimony, to permit inferences of negligence under the rule enunciated by the Court of Appeals in Meda. Because these inferences of negligence were permissible from the evidence in the record, it was inappropriate to enter summary judgment in favor of the hospital.
Standard of Review
The standard of review when a motion for summary judgment has been granted in favor of the defendant is well settled. As the Court of Appeals stated in
Lee v. Cline,
A. The requirement of expert testimony in medical malpractice cases.
Because of the complexity of medical malpractice cases, the Court of Appeals has made clear that, in such cases, there ordinarily must be expert testimony to establish breach of the standard of care and causation.
Meda, supra,
B. Res ipsa loquitur — as recognized in Maryland — is not available in cases requiring expert testimony.
Res ipsa loquitur
(translated as “the thing speaks for itself’) simply describes a set of evidentiary conditions that
permit, but do not require, a fact finder to infer negligence based upon proof that certain facts are more probable than not.
Norris v. Ross Stores, Inc.,
But the Court of Appeals has held that the doctrine of
res ipsa loquitur
is not available in cases requiring expert testimony. In
Meda, supra,
a medical malpractice case against an anesthesiologist was tried to a verdict in favor of the plaintiff. The claim arose out of an ulnar nerve injury that manifested immediately after surgery. The plaintiff in
Meda
presented evidence through expert witnesses that the anesthesiologist had a duty to assure that the patient was properly positioned on the operating room table so as to prevent the application of pressure against vulnerable nerves. The plaintiffs experts testified that the probable cause of the nerve injury was compression of the ulnar nerve, though other possible causes could not be totally excluded.
Id.
at 427 n. 2,
When the case was submitted to the jury, no instruction on res ipsa loquitur was given. After a verdict in favor of the plaintiff, the trial judge granted a judgment notwithstanding the verdict, concluding that the opinions of the plaintiffs experts rested, in part, on res ipsa loquitur, a doctrine then thought to be completely unavailable in medical malpractice cases.
This Court subsequently reversed, and directed entry of judgment in accordance
Upon further review, the Court of Appeals affirmed
“not on the basis of the applicability of res ipsa loquitur,
but because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiffs experts.”
Id.
at 420,
Each doctor, based upon his knowledge of the facts and upon his expertise, concluded that Mrs. Brown’s injury was one that ordinarily would not have occurred in the absence of negligence on the part of the anesthesiologist. This inferential reasoning has a familiar ring to it. It is a major part of the concept of res ipsa loquitur. It is not, however, res ipsa loquitur. Res ipsa loquitur, as we now utilize that concept in the law of negligence, means that in an appropriate case the jury will be permitted to infer negligence on the part of the defendant from a showing of facts surrounding the happening of the injury, unaided by expert testimony, even though those facts do not show the mechanism of the injury or the precise manner in which the defendant was negligent.
Id.
at 425,
The Court of Appeals further observed in
Meda
that, “if the plaintiff had offered no expert testimony, but had simply shown the onset of an ulnar nerve injury to her arm following a breast biopsy, the jury would not have been permitted to infer negligence from the facts alone.” In other words,
res ipsa loquitur
— as recognized in Maryland — is simply not available in cases that are of such a complex nature that they require expert testimony.
Accord Dover Elevator Co. v. Swann,
C. Expert Witnesses are permitted to use inferential reasoning in reaching and expressing their opinions.
Although a jury is not permitted to apply a
res ipsa
analysis to infer negligence, unaided by expert testimony, in a complex case, the Court of Appeals made clear in
Meda
that a qualified expert may use inferential reasoning in reaching the expert’s opinions and conclusions. In other words, in cases requiring expert testimony, experts may testify not only to their understanding of the facts and circumstances, but they may also use their knowledge, training, and experience to draw inferences from those facts and circumstances. And the fact that an expert is unable to identify the specific act of negligence or the precise mechanism of injury does not preclude that expert from drawing an inference of negligence from the circumstances.
Meda, supra,
In
Kennedy v. Burgess,
As the Court of Appeals explained in
Dover, supra,
If expert testimony is used to raise an inference that the accident could not happen had there been no negligence, then it is the expert witness, not an application of the traditional res ipsa loquitur doctrine, that raises the inference. The expert testimony offered in these “quasi res ipsa loquitur cases” differs somewhat from more traditional expert testimony because, instead of testifying that a particular act or omission constituted a failure to exercise due care, the expert testifies to the probability that the injury was caused by the failure to exercise due care. See Meda,318 Md. at 428 ,569 A.2d at 207 . The expert also testifies that the accident ordinarily would not occur unless there was a failure to exercise the appropriate degree of care. Like a res ipsa loquitur case, such expert testimony is offered to explain why there is a probability of negligence, which may be inferred from the circumstances of the accident, even though the expert is unable to pinpoint any particular negligent conduct. Although such testimony does not isolate the specific negligent conduct, it does allow the jury to find negligence as the result of the expert’s opinion rather than by circumstantial evidence and common knowledge as in the usual res ipsa loquitur case.
D. The expert testimony in this case was sufficient to survive the defendant’s motion for summary judgment.
As the authorities quoted above indicate, the appellants in this case could not prove their claim of professional negligence on a pure
res ipsa loquitur
theory. Under the principles set forth by the Court of Appeals in
Meda,
however, appellants were entitled to rely on the inferential reasoning of their experts to establish the negligence of the hospital’s staff. And appellants were entitled to rely on this inferential reasoning despite their experts’ inability to identify the specific act of negligence or the precise mechanism of injury.
Dover, supra,
With these principles in mind, we must examine whether the evidence before the motions court — including the expert testimony — was sufficient to generate disputes of material fact that made summary judgment on the issue of liability inappropriate. We focus on the testimony of Dr. Witman, the expert who expressed the inferential opinion that Mrs. Lynch’s death occurred as a consequence of appellee’s negligence. Dr. Wit-man clearly testified at his deposition that Mrs. Lynch’s death due to narcotic intoxication is the kind of event that does not occur absent negligence in the in-patient hospital setting. Dr. Witman also testified that it was his opinion that Mrs. Lynch’s death resulted from a breach in the standard of care on the part of the hospital’s staff. Dr. Witman based his opinions on his familiarity with the in-patient hospital setting, and, in particular, with the way controlled dangerous substances
Not surprisingly, the hospital disputes the inferences and conclusions drawn by Dr. Witman. But when a court considers a motion for summary judgment, all reasonable or permissible inferences must be resolved in favor of the non-moving party.
Goodwich v. Sinai Hospital of Baltimore,
The issue then is whether the inferences drawn by Dr. Witman from the available facts were “reasonable” or “permissible.” Dr. Witman explained that Mrs. Lynch died as a result of a lethal dose of narcotic medication that was far greater than that which had been prescribed by her attending physician. The evidence was that narcotic medications are, or should be, kept under lock and key in the in-patient setting. The evidence was that the hospital’s staff was responsible for counting out and administering narcotic medications in strict accordance with physicians’ orders.
The evidence clearly established that the hospital’s staff had access to the specific medication that caused Mrs. Lynch’s death, and further, that it was undisputed that the hospital’s staff had been administering the specific medication to Mrs. Lynch in a variety of formulations and dosages over a period of eleven days. The evidence also reflected that the hospital staff administered Oxycontin to Mrs. Lynch on some occasions by placing the medication directly in the patient’s gastric feeding tube. The information available to Dr. Witman was that the hospital’s staff was the only known supplier of narcotic medications to Mrs. Lynch in the time frame prior to her death. The evidence available to Dr. Witman was that neither Mrs. Lynch, nor any other non-staff member, had access to the hospital’s supply of narcotic medications. Dr. Witman observed that there was no evidence that Mrs. Lynch, who was very ill and confined to her bed, had contributed to her own death by somehow procuring and consuming narcotic medications in addition to the medication provided by hospital staff. Given these facts and circumstances, we cannot say, as a matter of law, that Dr. Witman’s opinion (that Mrs. Lynch’s death was more likely than not the result of negligence on the part of the hospital’s staff) was an “unreasonable” or “impermissible” inference for him to draw as an expert witness.
The hospital suggests that the inference of negligence drawn by Dr. Witman was “impermissible” as a matter of law
because the appellants did not establish that appellee was in “exclusive control” of the situation at the time of the overdose, and did not exclude the possibility that Mrs. Lynch was responsible for her own death. In essence, the hospital contends that any inferential expert opinion offered by the appellants is, as a matter of law, insufficient to support a finding of professional negligence unless the facts underlying the expert opinion meet the three-pronged
res ipsa loquitur
test,
viz.,
(1) a casualty that does not usually occur in the absence of negligence, (2) caused by an instrumentality within the exclusive control of the defendant, (8) under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.
Meda,
Appellee argues that there was insufficient proof of “exclusive control” because (1) Mrs. Lynch’s hospital room was “open and accessible” to persons other than hospital staff; (2) Mrs. Lynch was conscious at 6:55 a.m., when reportedly last seen by a member of the hospital staff, approximately one hour before the patient’s death; and (3) Mrs. Lynch’s daughter “at some point in her past ... was prescribed and used Oxycontin for headache.” The short answer to appellee’s highly speculative arguments that someone other than a member of the hospital staff theoretically could have gained access to the excess Oxycontin and caused the lethal overdose, is that it is for the jury, not the court, to determine whether the suggestion of such a possible alternative will overcome the conclusions drawn and opinions expressed by Dr. Witman. That Mrs. Lynch received a lethal overdose of a carefully monitored and strictly controlled narcotic pain medication at a time when she was very ill and confined to bed in the appellee’s facility is sufficient evidence of “control” to permit Dr. Witman’s inference that the hospital was “probably” responsible. Under Meda, this is all that is necessary to take the case to the jury.
For the same reason, Dr. Witman’s opinion as to the hospital staffs negligence is not overcome, at the summary judgment stage, by the hospital’s hypothesis that Mrs. Lynch might have caused her own death. The hospital argues that the evidence did not exclude that possibility. In this regard, appellee speculates — without any specific evidentiary support — that Mrs. Lynch may have hoarded doses of Oxycontin dispensed by the hospital’s staff over the days before her death, and “self medicated” with a massive dose on the morning of her death. But this theoretical possibility would not negate potential liability on the part of the hospital for violating its own protocol regarding dispensing the hoarded medication. The evidence in the record indicated that the hospital’s medication protocol required that the “administering nurse must witness consumption” of all medication, and that the nursing staff should “never leave medications unattended at the bedside.” Consequently, even if there was any evidence in the record that Mrs. Lynch hoarded Oxycontin for several days (and we note that the evidence in the record was arguably much more supportive of a conclusion to the contrary), such evidence would provide support for an alternative, albeit specific, theory of negligence, rather than support for the entry of summary judgment in favor of the hospital. The evidence available to Dr. Witman was that Mrs. Lynch was bedridden, and had no access to narcotic medications except to the extent that access was provided by the hospital’s staff. This evidence was sufficient to support an inference at the summary judgment stage that Mrs. Lynch was probably not responsible for her own death.
Moreover, even in traditional
res ipsa loquitur
cases — in which juries are permitted to infer negligence unaided by expert testimony — evidence of total and complete control of the instrumentality of harm is not required. As the Court of Appeals stated in
Leidenfrost v. Atlantic Masonry,
Inc.,
In summary, the appellants presented expert testimony that Mrs. Lynch’s death resulted from negligence on the part of the hospital staff. The expert testimony, which was based upon reasonable inferences drawn from the available evidence, was sufficient to establish that the hospital was not entitled to judgment in its favor as a matter of law. The weight to be given to that testimony is for the jury.
JUDGMENT VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEE.