Morgan v. Intermountain Health Care Inc.

• Decision Date: 29 July 2011
• Docket Number: No. 20091044–CA.,20091044–CA.
• Parties: Midge MORGAN, Plaintiff and Appellant,v.INTERMOUNTAIN HEALTH CARE, INC.; IHC LDS Hospital; and John Does and Jane Does I through X, Defendants and Appellees.
• Court: Utah Court of Appeals

263 P.3d 405

687 Utah Adv. Rep. 40

2011 UT App 253

Midge MORGAN, Plaintiff and Appellant,

v.INTERMOUNTAIN HEALTH CARE, INC.; IHC LDS Hospital; and John Does and Jane Does I through X, Defendants and Appellees.

No. 20091044–CA.

Court of Appeals of Utah.

July 29, 2011.

Tim Dalton Dunn, Salt Lake City, for Appellant.Joann E. Bott and David C. Castleberry, Salt Lake City, for Appellee.Before Judges DAVIS, McHUGH, and VOROS.

OPINION

VOROS, Judge:

¶ 1 Midge Morgan appeals the trial court's entry of summary judgment in favor of Intermountain Health Care, Inc. and others (collectively, IHC). The trial court granted summary judgment on the ground that Morgan could not establish a prima facie case of medical malpractice without a designated medical expert. We affirm.

BACKGROUND

¶ 2 Many of the facts of this case are in dispute. Because this appeal arises from the trial court's grant of summary judgment in favor of IHC, we recite the facts in the light most favorable to Morgan, except as noted. See Neff v. Neff, 2011 UT 6, ¶ 16 & n. 5, 247 P.3d 380. In June 1998, Morgan was involved in an automobile accident and sustained injuries to her head, neck, and back. As a result, on February 27, 2003, she underwent back surgery at an IHC-owned hospital. The surgery involved harvesting bone from her right hip. The following morning, Morgan could not feel or move her right leg. She was unable to get out of bed to use the bathroom and therefore requested a bedpan from the nurse on duty (the Nurse). The Nurse told her that LDS Hospital did not use bedpans. Morgan stated that she had used one throughout the night following her surgery. When Morgan insisted that the Nurse bring her a bedpan, the Nurse replied, “You are getting up.” Morgan alleges that the Nurse “then proceeded to put her right arm across—underneath my left arm and across my chest and grabbed under my right armpit, and then she took her left hand on top ... and proceeded to try to pull me and jerk me forward and up and over the railing [of the bed] to put me on my feet.” Morgan felt a “horrible pain” and “let out screams.” At this point, the Nurse dropped Morgan and Morgan fell back onto the bed. Morgan's pain level increased thereafter and she was later discovered to have tears in the rotator cuffs in both her shoulders, requiring surgery. She filed suit against IHC, alleging medical malpractice, negligence, and vicarious liability.

¶ 3 This was not Morgan's first medical issue relating to her neck and shoulders. In 1970, she dislocated her shoulder and had a staple inserted and removed. After the car accident in 1998, Morgan began repeatedly seeing Dr. Stephen Warner. In 1999, Dr. Warner noted that Morgan complained of neck pain, headaches, and “bilateral arm pain and numbness.” In 2001, Dr. Warner noted that Morgan complained of “right shoulder pain” and numbness in both of her arms; he also noted her previous shoulder surgery. In January 2003, Dr. Warner noted that Morgan suffered from neck pain followed by pain and numbness in her left arm. He also noted that rotating her shoulders “precipitate[d] shoulder and arm pain.”

¶ 4 In July 2008, IHC designated a list of expert witnesses, including Dr. Bruce Evans. Based on his review of relevant medical records and deposition testimony, Dr. Evans opined in an affidavit that Morgan's shoulder problems pre-existed her surgery in February 2003. Dr. Evans cited Morgan's dislocated shoulder and subsequent surgery in 1970, her 1998 car accident and subsequent bilateral shoulder pain, and her shoulder pain before the 2003 surgery. Dr. Evans also opined that it was “hard to imagine that both” of Morgan's rotator cuffs could have been torn during the incident following her surgery. He further opined that Morgan's age, medical history, and neck injury accident could have caused degenerative tearing of her rotator cuffs.

¶ 5 Morgan did not designate an expert witness. However, in opposing summary judgment, she relied on the deposition of her treating physician, Dr. Warner. Dr. Warner stated that, before Morgan's surgery, “the pain that she was experiencing seemed to be coming from her neck.” However, with rotator cuff tears in particular, he testified, “I'm not aware of any article that describes neck problems as a cause of rotator cuff tears. If you could produce some literature, I would like to see it.” He further testified that “it's possible” that the tears in Morgan's rotator cuffs were caused by the incident with the Nurse. Dr. Warner did not state that it was more likely than not that Morgan's injuries were caused by the incident with the Nurse.

¶ 6 IHC filed a motion for summary judgment. IHC contended that without a medical expert, Morgan was unable to establish the standard of care, breach of the standard, and proximate cause. In particular, IHC argued that expert testimony was necessary to establish the element of causation in light of Morgan's pre-existing shoulder injuries and shoulder pain. Morgan responded that expert testimony was not necessary to prove her claims. She also argued that genuine issues of material fact precluded summary judgment. The trial court agreed with IHC that expert testimony was required to establish causation: “This Court concludes that lay testimony is not sufficient to explain whether Plaintiff's shoulder injuries were the result of a previous injury and surgery or the act of a nurse.” ¹ The trial court therefore granted IHC's motion for summary judgment.

ISSUE AND STANDARD OF REVIEW

¶ 7 On appeal, Morgan contends that the trial court erred in entering summary judgment against her based on her lack of an expert witness.² Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). We “review[ ] a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and view[ ] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 10, 235 P.3d 730 (citation and internal quotation marks omitted).

ANALYSIS

¶ 8 Morgan contends that expert testimony was not required to establish her medical malpractice claim because the cause of her injury was within the common knowledge and experience of a lay juror. To establish medical malpractice, a plaintiff must prove four elements: (1) the standard of care required of health care providers under the circumstances; (2) breach of that standard by the defendant; (3) injury proximately caused by the breach; and (4) damages. See Jensen v. IHC Hospitals, Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076; Schuurman v. Shingleton, 2001 UT 52, ¶ 10, 26 P.3d 227; Dalley v. Utah Valley Reg'l Med. Ctr., 791 P.2d 193, 195 (Utah 1990). “A plaintiff's failure to present evidence that, if believed by the trier of fact, would establish any one of the [elements] of the prima facie case justifies a grant of summary judgment to the defendant.” Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct.App.1997) (alteration in original) (citation and internal quotation marks omitted).

¶ 9 “There is a general requirement in medical malpractice cases that the element of proximate cause be supported by expert testimony.” Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754 (citing Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992) (“To recover for medical malpractice, the plaintiff must produce expert testimony that the medical professional's negligence proximately caused the plaintiff injury.”); Dalley, 791 P.2d at 195 (“To establish the standard of care required of a physician in a particular field, breach of that standard, and proximate cause, the plaintiff is generally required to produce an expert witness....”); Nixdorf v. Hicken, 612 P.2d 348, 354 n. 17 (Utah 1980) (“The plaintiff also has the burden of proving the negligence of the defendant was the proximate cause of the injury. This proof requires some expert testimony in medical malpractice cases.”)); see also Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 22, 176 P.3d 446 (“[W]here the injury involves obscure medical factors which are beyond an ordinary lay person's knowledge, necessitating speculation in making a finding, there must be expert testimony that the negligent act probably caused the injury.” (citation and internal quotation marks omitted)). “This requirement is grounded in the fact that most medical malpractice cases depend upon knowledge of the scientific effect of medicine.” Bowman, 2008 UT 9, ¶ 7, 179 P.3d 754 (citation and internal quotation marks omitted). “Because the standard of care and the causal link between the negligence and the injury are usually not within the common knowledge of the lay juror, testimony from relevant experts is generally required in order to ensure that factfinders have adequate knowledge upon which to base their decisions.” Id.³

¶ 10 This general rule is subject to a limited “common knowledge” exception:

There is a limited “common knowledge” exception to the general requirement, which may excuse a lack of expert testimony in some circumstances. This exception applies when the causal link between the negligence and the injury would be clear to a lay juror who has no medical training—i.e., when the causal connection is readily apparent using only “common knowledge.”

Id.⁴ However, “[i]t is only in the most obvious cases that a plaintiff may be excepted from the requirement of using expert testimony to prove causation.” Fox, 2007 UT App 406, ¶ 22, 176 P.3d 446 (citation and internal quotation marks omitted); see also Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct.App.1988) (noting that the exception is applied only in “unusual circumstances”). Although the common knowledge exception has usually been applied to the element of standard of care, see Bowman, 2008 UT 9, ¶ 10, 179 P.3d 754, it is not true “that proximate cause must alway...