Ellis v. Oliver

Decision Date16 April 1996
Docket NumberNo. 24452,24452
Citation323 S.C. 121,473 S.E.2d 793
CourtSouth Carolina Supreme Court
PartiesMichael Anthony ELLIS, Deceased, By Deborah Scott Ellis, as Personal Representative of the Estate of Michael Anthony Ellis, Respondent, v. David L. OLIVER, M.D., Appellant. . Heard

Kay G. Crowe and R. Lewis Johnson, Barnes, Alford, Stork & Johnson, LLP, Columbia, for appellant.

Kimberly A. Raber, Columbia; Michael J. Miller and Deborah A. Vitale, Alexandria, Virginia, for respondent.

BURNETT, Justice:

This is a medical malpractice action in which the jury returned a verdict in favor of respondent. We affirm.

FACTS

On October 3, 1988, Michael Anthony Ellis was severely injured in a one car accident. The paramedics who arrived at the scene of the accident administered first aid and immobilized Ellis by placing him in a cervical collar and securing him to a rigid board. The paramedics then transported Ellis to Richland Memorial Hospital's trauma center. The initial examination at the hospital revealed Ellis had suffered, among other things, closed head trauma, a fractured scapula, a torn right brachial plexus, and a cervical spine injury. Although Ellis could no longer move his right arm because of the torn brachial plexus, Ellis had some voluntary movement of the left arm, pain reflexes in his legs, and rectal tone, an indication he was not paralyzed below the waist.

Because of Ellis' closed head injury, the chief surgical resident Dr. William Moore called for an anesthesiologist to establish an airway in order to reduce the swelling of Ellis' brain by means of hyperventilation. Dr. David L. Oliver (Appellant) responded and was informed of Ellis' condition by Dr. Moore. Thereafter, appellant made five attempts to establish an airway by inserting a tube through Ellis' nasal passage. When these attempts failed, appellant made five unsuccessful attempts at oral intubation using a laryngoscope, an instrument placed into the patient's mouth to visualize the trachea so that a tube can be passed into the windpipe. 1 Following these attempts by appellant and one further unsuccessful attempt by Dr. Moore, Dr. Moore established a surgical airway by making an incision in Ellis' neck and windpipe and inserting a tube directly into Ellis' trachea. The following day, it was discovered that Ellis had suffered a spinal cord injury rendering him a quadriplegic.

In 1990, Ellis brought this medical malpractice action against appellant. 2 Shortly thereafter, Ellis died from a blood infection allegedly related to his quadriplegia. Consequently, Deborah Scott Ellis (Respondent) was substituted as plaintiff and amended the complaint to allege survival and wrongful death causes of action. At the conclusion of

a trial held in 1994, a jury returned a verdict in favor of respondent. 3

ISSUES

(1) Did respondent present sufficient evidence to establish the requisite causal connection between appellant's acts and Michael Ellis' injuries?

(2) Did the trial court err in admitting into evidence an ambulance run report and certain medical records under the business records exception to the hearsay rule?

(3) Did the trial court err in allowing respondent's experts to give opinions based in part on hearsay statements and deposition testimony taken in other proceedings?

(4) Did the trial court err in allowing certain testimony concerning the applicable standard of care?

(5) Did the trial court err in excluding evidence of Ellis' pre-existing medical conditions and in admitting certain medical bills?

DISCUSSION
(1) Proximate Cause

Appellant first argues the trial court erred in not granting a directed verdict or a judgment notwithstanding the verdict because respondent failed to present sufficient evidence to establish the requisite causal connection between appellant's acts and Ellis' injuries. Specifically, appellant argues respondent's experts failed to present sufficient evidence that Ellis' injuries "most probably" resulted from the alleged negligence of appellant. We disagree.

In a medical malpractice action, it is incumbent on the plaintiff to establish proximate cause as well as the negligence of the physician. Armstrong v. Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976). Negligence is not actionable unless it is a proximate cause of the injury complained of, and negligence may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided. Hughes v. Children's Clinic, P.A., 269 S.C. 389, 237 S.E.2d 753 (1977). When one relies solely upon the opinion of medical experts to establish a causal connection between the alleged negligence and the injury, the experts must, with reasonable certainty, state that in their professional opinion, the injuries complained of most probably resulted from the defendant's negligence. Armstrong v. Weiland, supra. The reason for this rule is the highly technical nature of malpractice litigation. Since many malpractice suits involve ailments and treatments outside the realm of ordinary lay knowledge, expert testimony is generally necessary. When it is the only evidence of proximate cause relied upon, it must provide a significant causal link between the alleged negligence and the plaintiff's injuries, rather than a tenuous and hypothetical connection. Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978).

In this case, respondent's first expert, Dr. Morris Pulliam, testified about the standard of care for physicians attempting to intubate a patient with a known or suspected cervical spine injury in a situation where establishing an airway is not "urgent." 4 Dr. Pulliam stated that in his opinion, appellant violated this standard of care by inappropriately and excessively attempting to intubate Ellis orally. According to Dr. Pulliam, one attempt at oral intubation without moving the patient would have been acceptable, but multiple attempts using a laryngoscope was a violation of the standard of care because such a procedure inevitably causes movement of the patient's head and neck. As for causation, Dr. Pulliam stated that his review of the medical records indicated Ellis did not become a quadriplegic because of the motor vehicle accident. Dr. Pulliam specifically testified it was his opinion, to a reasonable degree of medical certainty, that the injury to Ellis' spinal cord occurred during the oral intubation attempts, and that this injury resulted in quadriplegia and eventual death. Further, Dr. Pulliam testified that in his opinion, had appellant not made multiple attempts at oral intubation, Ellis would have walked out of the hospital within two or three weeks.

Respondent's second expert, Dr. Brian McAlary, also testified about the standard of care for physicians attempting to intubate a patient with a known or suspected cervical spine injury. He stated that appellant violated this standard by making multiple attempts at oral intubation using in-line traction. 5 Dr. McAlary also stated that appellant violated the standard of care by allowing the resident Dr. Moore to attempt oral intubation following the first five unsuccessful attempts by appellant. Further, Dr. McAlary testified it was his opinion, to a reasonable degree of medical certainty, that Ellis' quadriplegia was not directly related to the injuries sustained in the motor vehicle accident, but was the direct result of the "unacceptable manipulation" of Ellis' airway following the accident. Dr. McAlary based his opinion on a review of the medical records which indicated Ellis had no spinal cord disfunction prior to the attempts at intubation, and that Ellis showed signs of neurogenic shock 6 during the intubation attempts. In addition, Dr. McAlary testified that a comparison of X-rays taken before and after the intubation attempts indicated greater displacement between the second and third cervical vertebrae of Ellis' spine.

Assuming the only evidence of a causal connection was the testimony of Dr. Pulliam and Dr. McAlary, we find this testimony, when viewed in a light most favorable to respondent, was sufficient to show that Ellis' injuries (i.e. quadriplegia) most probably resulted from the alleged negligence of appellant. 7 See Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991) (in determining whether expert medical testimony is sufficient to establish causation, it is not necessary that the expert actually use the words "most probably"). Consequently, the circuit court did not err in denying appellant's motions for a directed verdict or judgment notwithstanding the verdict. See Unlimited Services, Inc. v. Macklen Enterprises, Inc., 303 S.C. 384, 401 S.E.2d 153 (1991) (the denial of a motion for a directed verdict or judgment non obstante veredicto will be upheld if the evidence, when viewed in a light most favorable to the non-moving party, is susceptible of more than one reasonable inference).

(2) Ambulance Report and Medical Records

The two paramedics who treated Ellis and transported him to the hospital testified at trial. One of the paramedics, Greg Randall, testified that after Ellis was transported, he (Randall) filled out an "Ambulance Run Report" required by the Department of Health and Environmental Control. A copy of the report was marked for identification and, without objection, the trial court allowed Randall to use the report to refresh his memory about Ellis' accident. 8 Referring to the report, Randall testified as follows:

A. ... I got down here he had a normal range of movement with no deformity found.

Q. And based on the training you had had up to that point in time, what did a normal range of motion then mean to you, sir?

A. That he had movement in his extremities, or some of the extremities had been moved.

. . . . .

Q. Would you have written the word "norm" n-o-r-m, or the acronym norm in your report if this man were paralyzed at the scene of the accident?

A. No,...

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