Martin v. Mott, 860103-CA

• Decision Date: 22 October 1987
• Docket Number: No. 860103-CA,860103-CA
• Citation: 744 P.2d 337
• Parties: Myrna I. MARTIN, Plaintiff and Appellant, v. Richard G. MOTT, et al., Defendants and Respondents.
• Court: Utah Court of Appeals

Page 337

744 P.2d 337

Myrna I. MARTIN, Plaintiff and Appellant, v. Richard G. MOTT, et al., Defendants and Respondents.

No. 860103-CA.

Court of Appeals of Utah.

Oct. 22, 1987.

Anthony M. Thurber, Salt Lake City, for plaintiff and appellant.

David G. Williams, Snow, Christensen & Martineau, J. Anthony Eyre, Kipp & Christian, P.C., Salt Lake City, for defendants and respondents.

OPINION

Before BENCH, GREENWOOD and GARFF, JJ.

BENCH, Judge:

Plaintiff appeals from the order of summary judgment entered against her based on her inability to present competent expert testimony in support of her malpractice action against defendant. We affirm.

On May 12, 1980, plaintiff Myrna Martin contacted defendant Richard Mott, a podiatrist, for treatment of a painful condition in her foot. Defendant diagnosed the problem as acute achilles tendonitis and treated it accordingly. The pain persisted. At defendant's request, plaintiff contacted Gordon R. Kimball, an orthopedic surgeon. On June 4, 1980, Dr. Kimball diagnosed peripheral vascular disease and an arterial occlusion. Robert Beveridge, a cardiovascular surgeon, was called in to operate. Plaintiff filed this action on November 4, 1981, alleging negligence by defendant in failing properly to diagnose and treat her condition.

The elements of an action for negligence include: 1) a duty of reasonable care owed by defendant to plaintiff; 2) a breach of that duty; 3) causation, both actual and proximate, of the injury; and 4) damages suffered by plaintiff. Robinson v. Intermountain Health Care, 740 P.2d 262, 264 (Utah App.1987). In a medical malpractice action, unless within the common knowledge and experience of a layman, a plaintiff must provide expert testimony to establish the standard of care or duty owed by defendant, defendant's failure to comply with the standard, and that defendant's violation of the standard caused plaintiff's injuries. Hoopiiaina v. Intermountain Health Care, 740 P.2d 270, 271 (Utah App.1987).

After a prolonged discovery process, plaintiff designated William H. Fleming, M.D., as her expert witness. In his deposition dated May 30, 1984, Dr. Fleming admitted he never saw nor reviewed defendant's medical records except for one bill which listed the number of plaintiff's visits to defendant. Dr. Fleming testified he did not know the standard of care expected of podiatrists, but that in his opinion, if defendant were a physician, then he did violate the standard of care applicable to physicians.

Defendant filed a motion for summary judgment on October 24, 1984. In support, defendant submitted the affidavits of Drs. Kimball and Beveridge who both testified they had reviewed defendant's records, were familiar with the standard of care applicable to podiatrists, and that defendant fully complied with said standard. In a memorandum decision, the trial court found no genuine issue as to any material fact existed and, in an order dated January 9, 1985, granted defendant's motion for summary judgment.

On appeal, plaintiff argues sufficient evidence was before the court to raise a material issue of fact as to defendant's negligence. Plaintiff cites Walkenhorst v. Kesler, 92 Utah 312, 67 P.2d 654 (1937), for the proposition that a physician, such as Dr. Fleming, is qualified to testify as an expert witness in all fields of medicine. In Walkenhorst the trial court allowed a medical doctor to testify against a chiropractor in an action for medical malpractice. On appeal, the Utah Supreme Court affirmed the trial court's action, noting the trial court allowed the medical doctor's testimony because "evidence submitted to the jury was sufficient to show appellant stepped out of the 'chiropractic' field" and into the field of medicine. Id. 67 P.2d at 666. The medical...