McKellips v. Saint Francis Hosp., Inc., 66636

CourtSupreme Court of Oklahoma
Citation1987 OK 69,741 P.2d 467
Docket NumberNo. 66636,66636
Parties, 1987 OK 69 Gretta M. McKELLIPS, Nelrose Margaret Palenske, David McKellips, and Paul Mark McKellips, Appellants, v. SAINT FRANCIS HOSPITAL, INC., Emergency Care, Inc., and George B. Caldwell, M.D., Appellees.
Decision Date21 July 1987

Page 467

741 P.2d 467
81 A.L.R.4th 467, 1987 OK 69
Gretta M. McKELLIPS, Nelrose Margaret Palenske, David
McKellips, and Paul Mark McKellips, Appellants,
SAINT FRANCIS HOSPITAL, INC., Emergency Care, Inc., and
George B. Caldwell, M.D., Appellees.
No. 66636.
Supreme Court of Oklahoma.
July 21, 1987.

Page 469

Briggs, Patterson, Eaton & Berg by Dale J. Briggs and Steven J. Berg, Tulsa, for appellants.

T.J. Sinclair, General Counsel, Saint Francis Hosp., Inc., and Jones, Givens, Gotcher, Doyle & Bogan, Inc. by Deryl L. Gotcher and Joan Godlove, Tulsa, for appellee Saint Francis Hosp., Inc.

Best, Sharp, Thomas, Glass & Atkinson by Joseph A. Sharp and Patricia K. Lamb, Tulsa, for appellees Emergency Care, Inc. and George B. Caldwell, M.D.

HODGES, Justice.

On June 3, 1986, the United States Court of Appeals for the Tenth Circuit certified the following two questions of law to this Court pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1981 § 1602:

I. In a medical malpractice action under Oklahoma law, absent evidence that the patient more likely than not would have survived with proper treatment, may a plaintiff establish causation under the loss of chance doctrine by presenting evidence that the alleged negligence lessened the chance of survival?

II. If the loss of chance doctrine is recognized in Oklahoma, is expert testimony that "unquestionably [the deceased's] chances would have been significantly improved" sufficient under that doctrine to create a question for the jury, notwithstanding the expert cannot quantify the increased chance of survival?

A review of the decisional law which sets forth the traditional causation standard to be applied in ordinary negligence actions in Oklahoma, as well as decisions from other jurisdictions which reevaluate the use of that standard in reference to a medical malpractice claim where a defendant has negligently breached an undertaking to prevent a certain harm, and adopt the loss of chance doctrine in those limited situations, persuade this Court to answer both questions in the affirmative.

This is an action for the wrongful death of Reverend Allan David McKellips (decedent) brought by his widow, Gretta M. McKellips, and his adult surviving children; Nelrose Margaret Palenske, David McKellips, John McKellips and Paul Mark McKellips (collectively plaintiffs/appellants). The action is brought against Saint Francis Hospital, Inc., a general hospital operated in the City of Tulsa, Oklahoma, and providing emergency room services to the public;

Page 470

Emergency Care, Inc., which was under contract with the hospital to provide physicians for operation of the emergency room; and George B. Caldwell, M.D., the attending physician on duty in the emergency room at the time services were provided to decedent (collectively defendants/appellees).

On July 12, 1981, at 2:30 p.m., decedent was brought to the Saint Francis Hospital emergency room. The decedent was sixty-one years of age and moderately obese. He had a family history of heart disease although decedent himself did not have a prior history of heart disease. Decedent complained of pain over his breastbone radiating to both sides of his chest. After examination and testing, Dr. Caldwell diagnosed decedent's condition as gastritis and released him at approximately 4:15 p.m. Thereafter decedent suffered cardiac arrest and was returned to the hospital by helicopter. At 9:30 p.m. decedent was pronounced dead.

In 1983, suit was filed in the United States District Court for the Northern District of Oklahoma. At trial, appellants' expert witness, a board certified emergency physician, testified by deposition that appellees were negligent in diagnosing decedent as suffering from gastritis instead of a heart attack, and in releasing him rather than keeping him under observation for a reasonable period of time at the hospital. He further testified in his opinion based upon the hospital records decedent's "heart attack was probably well under way at the time of his visit to the emergency department the first time" and admitting decedent to the hospital for observation at that time would not have prevented the heart attack. However, he testified with regard to decedent's chances for survival or prevention:

"As far as improving his chances, I think unquestionably his chances would have been significantly improved. As to whether or not it would have, in fact, changed the outcome, I think is a statistical probability statement that is difficult to answer. But as far as improving his chances, there's no question that that's true."

At the conclusion of appellants' evidence, appellees moved for a directed verdict on the ground that causation had not been established. The district court granted the motion for failure of appellants to prove the essential elements of their claim. The transcript reflects the district court assumed without deciding that Oklahoma would apply the loss of a chance doctrine, and determined appellants' evidence was insufficient with or without application of the doctrine.


The first certified question presented by this case is whether Oklahoma adheres to the loss of a chance doctrine in a medical malpractice action.

The three elements essential to a prima facie case of negligence are: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty and (3) the plaintiff's injuries are proximately caused by the defendant's failure to exercise his duty of care. 1

Proximate cause consists of two elements: cause in fact and legal causation. 2 Legal causation concerns a determination whether legal liability should be imposed as a matter of law where cause in fact is established and depends upon considerations of common sense and policy. Cause in fact, on the other hand, deals with the "but for" consequences of an act. "The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct." 3 The present matter involves only the question whether appellees or the decedent's underlying condition was the real cause--cause in fact--of his death. Therefore, our opinion does not

Page 471

deal with the scope of proximate cause involved in the concept of legal causation. Generally, the question of cause in fact is for the jury. It is only when there is no evidence from which the jury could reasonably find a causal nexus between the negligent act and the resulting injury it becomes a question of law for the court.

The sufficiency of the evidence to show cause in fact presents a question of law for the court. 4 Sufficiency of evidence is the "legal standard which is applied to determine whether the case may go to the jury." 5 A plaintiff's burden of proof of causation is twofold. 6 First, a plaintiff has the burden of producing evidence, satisfactory to the judge, that a reasonable person could believe in the existence of the causal link and that the evidence should be weighed by the jury. A verdict will be directed for the defendant if a plaintiff fails to carry this burden. 7 Secondly, a plaintiff bears the burden of persuasion should the evidence be allowed to reach the jury. 8 The standard for sufficiency of proof of evidence, related to a plaintiff's first burden, should not be confused with the standard of proof, associated with a plaintiff's second burden, which is applied by the jury in reaching a final verdict. Generally, in civil cases the standard of proof means a preponderance of the evidence. The certified questions concern the burden of production and sufficiency of proof of causation standard as to whether the causation issue should be submitted to the jury.

In Oklahoma, the general principles of proof of causation in a medical malpractice action are the same as an ordinary negligence case. The reasonable probability standard for sufficiency of proof of causation is applied although it has been stated in varying language, such as "[t]he circumstances proved must lead to the conclusion with reasonable certainty and probability" 9 or "[w]hen such lay and expert testimony is considered together, it must warrant the conclusion that a preponderance of the evidence discloses facts and circumstances establishing a reasonable probability that defendant's negligence was the proximate cause of the injury". 10 Absolute certainty is not required, however, mere possibility or speculation is insufficient. 11 As stated above, if a plaintiff fails to meet his burden of sufficiency of proof of evidence to establish a prima facie issue of causation where the probabilities are evenly balanced or less, a defendant may be entitled to a directed verdict. 12

An evolving trend has developed to relax the standard for sufficiency of proof of causation ordinarily required of a plaintiff to provide a basis upon which the jury may consider causation in the "lost chance of survival" cases. In the typical loss of a chance case, a plaintiff already has a condition or is subject to risk from a hazard, unlike a healthy plaintiff in most personal injury cases. A plaintiff claims the negligence has increased the risk of harm by hastening or aggravating the effect of the pre-existing condition or risk. Additionally, the typical case often involves a situation in which the duty breached by a tortfeasor is imposed to prevent the harm which ultimately becomes the basis for the damages sought. Often times these cases are problematic

Page 472

as the tort may prevent a determination of whether the exercise of due care under the circumstances could have produced a better result. 13 The concept was first recognized in non-medical negligence cases in failure to attempt to rescue situations. 14

Various theories have been followed by the courts which have addressed the loss of chance concept in medical negligence cases. Several courts have recognized the loss of a significant chance as a new cause of action viewing...

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