Butterfield v. Okubo
| Decision Date | 07 April 1992 |
| Docket Number | No. 900272,900272 |
| Citation | 831 P.2d 97 |
| Parties | Albert John BUTTERFIELD and Angela Butterfield on behalf of Tiffany Ruth Butterfield, Plaintiffs and Petitioners, v. David OKUBO, Thomas Nickol, and Holy Cross Jordan Valley Hospital, Defendants and Respondents. |
| Court | Utah Supreme Court |
David Grindstaff, Salt Lake City, for the Butterfields.
R. Scott Williams and G. Eric Nielson, Salt Lake City, for Okubo.
Gary D. Scott and Michael A. Peterson, Salt Lake City, for Nickol.
David W. Slagle, Salt Lake City, for Holy Cross Jordan Hosp.
This medical malpractice case is before us on a writ of certiorari to the court of appeals. Albert and Angela Butterfield sued Dr. Nickol, an emergency room physician, Dr. Okubo, a primary care physician, and Holy Cross Jordan Valley Hospital ("the Hospital"), charging that their failure to diagnose and treat the Butterfields' baby's breathing problems caused the child to die of sudden infant death syndrome. The district court granted summary judgment for defendants, finding that the Butterfields had not put forth legally sufficient evidence of breach of the standard of care or proximate cause.
The Butterfields appealed. The court of appeals found that the expert's affidavit submitted by the Butterfields demonstrated a question of fact as to the breach of the standard of care, but it affirmed the grant of summary judgment on the ground that the affidavit was insufficient as to whether the doctors and the Hospital proximately caused the baby's death. Butterfield v. Okubo, 790 P.2d 94 (Utah Ct.App.1990).
We granted certiorari to determine whether the affidavit of the Butterfields' expert was sufficient to defeat summary judgment. We now reverse the court of appeals' holding that there was no issue of proximate cause. We therefore vacate the summary judgment and remand this case to the district court.
In reviewing a grant of summary judgment, we construe the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. E.g., Rollins v. Petersen, 813 P.2d 1156, 1158 (Utah 1991); Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989). We recite the facts in this case accordingly.
Tiffany Ruth Butterfield was born June 30, 1984, at Holy Cross Jordan Valley Hospital. Dr. Okubo examined Tiffany at birth and pronounced her healthy and normal. At that time, he observed no symptoms that indicated respiratory distress. Tiffany was discharged from the Hospital on July 1st. Three days later, the Butterfields brought Tiffany to the Hospital's emergency room, where Dr. Nickol was on duty. Mrs. Butterfield told Dr. Nickol that Tiffany was congested and having difficulty breathing. In her deposition testimony, Mrs. Butterfield said she also informed Dr. Nickol that Tiffany had turned blue and that on the way to the Hospital the Butterfields had had to "stimulate" her to catch her breath. However, on the emergency room record of the visit, neither Dr. Nickol nor the attending nurse mentioned a complaint of blue discoloration or the necessity to stimulate Tiffany in order to make her breathe.
Dr. Nickol examined Tiffany and found her to be normal and stable. Mrs. Butterfield testified in her deposition that Dr. Nickol and the nurse "sort of laughed" at the Butterfields' concerns and told them that Tiffany was simply developing her natural breathing pattern. At the conclusion of the visit, Dr. Nickol directed the Butterfields to monitor Tiffany's eating, defecation, and urination and to follow up with Dr. Okubo the next morning. Mrs. Butterfield initialed the emergency room record to verify that she had received the follow-up instructions.
Despite Dr. Nickol's follow-up instructions, the Butterfields did not take Tiffany to Dr. Okubo the next morning. Mrs. Butterfield testified that she telephoned Dr. Okubo that morning, but Dr. Okubo has no record or memory of the call. On July 16th, eleven days after they saw Dr. Nickol, the Butterfields took Tiffany to Dr. Okubo for a prearranged checkup. Dr. Okubo's office notes indicate that Tiffany was active and demanding, with good growth and development, but had a history of gasping. He noted that these gasps were not characterized by blue discoloration. In contrast, Mrs. Butterfield testified in her deposition that she told Dr. Okubo about Tiffany's July 4th breathing problems and said that she was worried that Tiffany's "color just wasn't right" and that the baby was "wheezing like she couldn't get her breath." Like Dr. Nickol, Dr. Okubo advised Mrs. Butterfield that Tiffany was developing her natural breathing pattern and told her not to worry about the baby.
One month later, Tiffany again suffered from breathing problems. Sometime after 8 p.m. on August 16th, the Butterfields noticed Tiffany "go limp and lose her breath." On the way to the Hospital's emergency room, Mrs. Butterfield patted and bounced the infant, finding that these motions stimulated Tiffany to breathe. Dr. Nickol was on duty at the Hospital. He checked Tiffany's lungs and abdomen, concluding again that Tiffany was establishing her natural breathing pattern and was in no danger. Because the emergency room nurse did not supply Dr. Nickol with the medical records of Tiffany's July 4th visit to the Hospital, it is unclear whether Dr. Nickol was aware that he had examined Tiffany for breathing difficulties once before.
Dr. Nickol's records and the nurse's notes of the August 16th visit indicate that Mrs. Butterfield was concerned that Tiffany had stopped breathing for four seconds, but both Dr. Nickol and the nurse recorded that the episode was not accompanied by blue discoloration. After almost an hour, Dr. Nickol discharged Tiffany with instructions to the Butterfields to use a humidifier and bulb suction to relieve Tiffany's congestion, to monitor her for increased respiratory distress and blue discoloration, and to follow up with Dr. Okubo at the baby's two-month checkup or earlier if problems occurred.
Mrs. Butterfield never returned to Dr. Okubo. In her deposition, she said she decided to look for another doctor because she felt that Dr. Okubo was "careless" during her July 16th visit and that he and his nurse had rushed her and Tiffany "in one door and out the other" during the appointment. She likened his office to "an assembly line." By late August, the Butterfields had decided to take Tiffany to Dr. Monty McClellan, a family practitioner.
From then on, Dr. McClellan was Tiffany's primary, if not sole, physician. The Butterfields say they took Tiffany to the emergency room in early October and again saw Dr. Nickol, but Dr. Nickol claims he was not on duty that night. The Butterfields have produced no Hospital records to show that the third visit took place. From August to December 1984, Dr. McClellan saw Tiffany five times, on August 31st, September 27th, November 5th, November 30th, and December 14th. At no time during the five visits did the Butterfields inform Dr. McClellan of the episodes when Tiffany stopped breathing or turned blue. In her deposition, Mrs. Butterfield said that she did not tell Dr. McClellan about these episodes because Dr. Okubo and Dr. Nickol had convinced her that Tiffany was in no danger. Dr. McClellan gave the baby checkups and treated her for various ailments such as thrush, a whitish coating of the mouth, and congestion.
On December 20, 1984, Tiffany died of sudden infant death syndrome ("SIDS"). Two years later, on December 15, 1986, the Butterfields, acting on Tiffany's behalf, filed suit in Third District Court against Dr. Nickol, Dr. Okubo, and Holy Cross Jordan Valley Hospital. 1 The Butterfields charged that defendants' negligent and improper acts and diagnoses breached the standard of care they owed to Tiffany and proximately caused her death. Specifically, the Butterfields asserted that the doctors and the Hospital acted negligently in failing to prescribe a home apnea monitor, a device that would have alerted the parents if Tiffany had stopped breathing in her sleep. At a hearing before the trial court, the Butterfields acknowledged that the doctors were independent contractors and therefore that the Hospital was not liable for their actions, but alleged that the Hospital was liable for the negligence of the emergency room nurse, a Hospital employee, who on August 16th failed to provide Dr. Nickol with the record of Tiffany's first visit to the emergency room. The Butterfields made no claims against Dr. McClellan, who had been Tiffany's primary physician since late August of 1984.
Dr. Okubo, Dr. Nickol, and the Hospital moved for summary judgment. Dr. Okubo and Dr. Nickol submitted expert testimony in support of summary judgment, while the Butterfields submitted expert testimony to defeat the motion. Because the Butterfields' expert testimony is central to this opinion, we will discuss it in some detail.
The Butterfields submitted the affidavit of Dr. H. Barry Jacobs, a physician licensed in the state of Maryland. Based on his review of Tiffany's medical records, the Butterfields' depositions, and a conversation with Mr. Butterfield, Dr. Jacobs testified that "care below an acceptable standard was provided to Tiffany Butterfield by Dr. Nichol [sic], Dr. Okubo, and the Holy Cross Jordan Valley Hospial [sic]...."
Dr. Jacobs' affidavit is composed of thirteen numbered paragraphs. Two paragraphs detail his qualifications and familiarity with the standards of care required of emergency room doctors, primary pediatricians, and managers of medical records. One paragraph describes the sources of the facts contained in the affidavit. One paragraph asserts that defendants' conduct fell below the standard of care; one paragraph asserts that this negligence proximately caused Tiffany's death; and one paragraph asserts that a home apnea monitor would have prevented Tiffany's death "to a reasonable degree of medical certainty." The remaining seven paragraphs list...
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Case Summaries
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