Burleson v. Wayne
| Decision Date | 10 May 2021 |
| Docket Number | Case No. 118,672 |
| Citation | 495 P.3d 146 |
| Parties | Bridgette BURLESON, Plaintiff/Appellee, v. Ivan WAYNE, M.D., Defendant/Appellant |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Brad Miller, Jami Rhoades Antonisse, MILLER & JOHNSON, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee
J. Blake Patton, WALDING & PATTON PLLC, Oklahoma City, Oklahoma, for Defendant/Appellant
OPINION BY STACIE L. HIXON, PRESIDING JUDGE:
¶1 Ivan Wayne, M.D. (Wayne), appeals judgment in favor of Bridgette Burleson in a medical negligence action, memorializing the grant of partial summary judgment to Burleson on the issue of liability, and a jury verdict awarding damages in the amount of $125,000.00.1
¶2 Burleson alleged that Wayne negligently deflated one of her breast implants
while harvesting cartilage from a rib to repair her nasal septum. The trial court awarded partial summary judgment to Burleson on November 5, 2018 on liability and causation, and limited trial to the issue of damages. Burleson did not present expert testimony on summary judgment establishing that Wayne breached his standard of care, or that this breach caused her injury. Instead, Burleson relied on a res ipsa loquitur pattern of proof to present a prima facie case of negligence. However, Burleson failed to meet her burden to establish the necessary foundational facts to support that theory. Her own expert acknowledged that her injury could occur even when the physician has acted completely within his standard of care.
¶3 Based on our review of the record and applicable law, we find the trial court erred by awarding Burleson partial summary judgment on liability and causation, and by proceeding with a trial on damages. The Journal Entry of Judgment of February 4, 2020 is reversed and this action is remanded for new trial.
BACKGROUND
¶4 On August 25, 2014, Wayne performed a surgery to repair Burleson's nasal septum. To do so, Wayne harvested cartilage from one of Burleson's left ribs. Two days later, Burleson noticed that the saline implant in her left breast had deflated and subsequently reported it to Wayne.
¶5 Two years later, Burleson sued Wayne for medical negligence. She moved for partial summary judgment on liability and causation, asserting that Wayne was liable for negligence under a res ipsa loquitur pattern of proof. In support, Burleson asserted it was undisputed that Wayne knew Burleson had previously had a breast augmentation
, that her implants were not deflated before the surgery, that the implant was deflated two days after the surgery, that she had suffered no trauma or injury to her left breast prior to the surgery, and that Wayne had offered to correct the deflation.2
¶6 Burleson also presented an unsworn letter from her proposed expert, Elliot B. Duboys, M.D. Duboys' letter stated in part that "deflation of a breast implant
during the harvest of a rib graft by a ‘Facial Plastic Surgeon’ performing a harvest of a rib graft without recognizing a breast implant was deflated/damaged would be considered to be a departure from the normal standard of care ..." and opined that certain precautions should be taken during a surgery to avoid damaging the implant. Duboys' letter did not opine that deflation of the implant would not have occurred in the absence of negligence, and did not address whether Wayne employed his recommended precautions during surgery.3 Duboys did not identify the cause of the damage to the implant or opine that Wayne's negligence caused it to deflate.
¶7 Wayne filed an initial response to Burleson's Motion before he had deposed Duboys, disputing that he was informed of Burleson's implants, and arguing that delay between the surgery and when Burleson noticed the deflation raised a question of fact on causation. He also presented an email from a plastic surgeon dated several months before the surgery, suggesting the surgeon's office had attempted to call Burleson and reschedule an appointment regarding an exchange of her implants.4 After Wayne deposed Duboys, he supplemented his response to Plaintiff's Motion for Summary Judgment to add Duboys' sworn testimony. Specifically, Wayne presented the following testimony of Duboys:
Q. Is deflation of a breast implant
a known complication of a harvest graft?
A. I believe it's a potential complication.
Q. The deflation of a breast can occur during the harvest of a rib graft, true?
A. I think yes, true.
Q. Even if the harvest of the rib graft is performed completely within the standard of care, deflation of a breast implant is still possible, correct?
A. Yes.5
(Emphasis added.) Duboys contended that Wayne should have employed certain precautions to perform a rib graft upon a patient with breast implants
. However, he testified he did not have sufficient information to opine whether or not Wayne had taken those precautions and had met the proposed standard of care:
(Emphasis added.)
¶8 The trial court granted Burleson partial summary judgment on "liability (causation) only," on November 5, 2018, stating, in part:
1. Defendant Wayne knew that Plaintiff Burleson had a left breast implant
in place at the time of the surgical procedure that included a rib graft;
2. Defendant Wayne knew that deflation of a breast implant is a potential complication when performing a rib graft;
3. That the presence of an implant requires taking the necessary precautions to avoid damaging the implant which is in the way of the rib graft;
4. Plaintiff Burleson's left breast implant was not deflated before the August 25, 2014 procedure performed by Defendant Wayne;
5. Once her anesthesia had worn off after the August 25, 2014 procedure, Plaintiff Burleson detected that her left breast implant was deflated;
6. Defendant Wayne should have checked for the deflation of Plaintiff Burleson's left breast during the surgical procedure, but failed to do so.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that, under the doctrine of res ipse [sic] loquitur and 76 O.S § 21, Plaintiff Burleson has established that her injury was proximately caused by an instrumentality solely in the control of Defendant Wayne, and that such injury would not have occurred absent the negligence of Defendant Wayne. See also
Smith v. Hines, 2011 OK 51, 261 P.3d 1129 ; Robinson v. Okla. Nephrology Assoc., Inc., 2007 OK 2, 154 P.3d 1250.
¶9 The trial court denied a subsequent motion to reconsider its interlocutory ruling, and certified the interlocutory order for immediate appeal. Wayne petitioned the Oklahoma Supreme Court for certiorari to consider the trial court's certified interlocutory order, which was denied.7 Thereafter, the case proceeded to jury trial on damages on December 9-11, 2019. Wayne's request that the trial court revisit its holding on summary judgment was denied at trial, as was his request to instruct the jury and present evidence on the issue of liability. The jury returned a unanimous verdict for Burleson, awarding her $125,000 in damages. The trial court entered a journal entry of judgment on February 4, 2020, memorializing the grant of partial summary judgment and the jury's verdict.
¶10 Wayne appeals.
STANDARD OF REVIEW
¶11 Wayne appeals from the Court's final judgment, which incorporated its prior partial summary judgment on liability and causation. Lincoln Farm, L.L.C. v. Oppliger , 2013 OK 85, ¶ 14 n.15, 315 P.3d 971 (emphasis omitted) (citations omitted). As noted above, the grant of partial summary judgment to Burleson was not immediately appealable by right, but was certified for immediate appeal. Because the Oklahoma Supreme Court declined review, the trial court's grant of summary judgment on liability and causation remains at issue, and may be reviewed on appeal of the final judgment.
¶12 Review of a court's ruling on summary judgment is a purely legal issue, and is reviewed de novo , considering the evidence and inferences to be drawn therefrom in the light most favorable to the non-moving party. See Smith v. City of Stillwater , 2014 OK 42, ¶ 21, 328 P.3d 1192. The Court will "examine the pleadings and evidentiary materials to determine what facts are material to plaintiff's cause of action, and to determine whether the evidentiary materials introduced indicate whether there is a substantial controversy as to one material fact and that this fact is in the movant's favor." Ross by and through Ross v. City of Shawnee , 1984 OK 43, ¶ 7, 683 P.2d 535. All inferences and conclusions to be drawn therefrom are viewed in the light most favorable to the nonmoving party. Id .
ANALYSIS
¶13 Wayne contends the trial court erred by granting Burleson partial summary judgment on liability and causation as a matter of law, and proceeding to a trial on damages. Wayne asserts disputed issues of fact exist, precluding summary judgment. The Court agrees.
¶14 To recover damages on her medical negligence claim, Burleson was required to establish: (1) that Wayne owed her a duty to protect her from injury; (2) that Wayne failed to properly exercise or perform his duty; and (3) that Burleson's injuries were proximately caused by Wayne's failure to exercise his...
To continue reading
Request your trial