Nelson v. Enid Med. Assocs., Inc.

Decision Date14 June 2016
Docket NumberNo. 110,665,110,665
Citation2016 OK 69,376 P.3d 212
Parties William P. Nelson, and Jon Nelson, individually and as Co–Personal Representatives and/or Co–Executors of the Estate of Ethel A. Nelson, and as Co–Trustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel A. Nelson, Plaintiffs/Appellants, v. Enid Medical Associates, Inc., and David Shepherd, Defendants/Appellees, and Universal Health Services, Inc., (UHS), individually and d/b/a St. Mary's Regional Medical Center; UHS of Oklahoma, Inc., individually and d/b/a St. Mary's Regional Medical Center, St. Mary's Regional Medical Center, Henry D. Vaughan, a.k.a H. Dean Vaughan a.k.a. Henry D. Vaughn a.k.a H. Dean Vaughn, Ronald W. Shreck, and Enid Emergency Physicians, L.L.P., Defendants.
CourtOklahoma Supreme Court

Robert C. Smith, Jr., Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Oklahoma, for Appellants.

Hilton H. Walters, R. Gene Stanley, Rife Walters Stanley & Natarajan LLP, Oklahoma City, Oklahoma, for Appellees.


¶ 1 In a medical malpractice action we are asked to review orders excluding testimony from plaintiffs' two expert witnesses and a summary judgment granted to defendants based upon the excluded testimony. We conclude the testimony should not have been excluded. We reverse the orders of the District Court excluding the testimony and granting summary judgment, and remand the cause for further proceedings consistent with the Court's opinion.

¶ 2 Mrs. Nelson went to the Emergency Department of St. Mary's Regional Medical Center seeking medical assistance at 7:20 p.m. on the evening of July 21, 2006. The emergency room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson's internist and primary care provider. Dr. Shepherd instructed Dr. Vaughan to telephone Dr. Shreck, a surgeon. Dr. Shreck came to the hospital, reduced Mrs. Nelson's hernia, and she was admitted to the hospital.

¶ 3 One of the tests order by Dr. Vaughan was a CT scan. The CT scan showed free air in Mrs. Nelson's abdomen and required immediate surgery. The CT scan results were faxed to the hospital at 1:50 a.m. on the morning of July 22nd, but neither Dr. Vaughan or Dr. Shreck saw the report at that time.

¶ 4 The medical record indicates Dr. Shreck reduced Mrs. Nelson's incarcerated hernia by manipulation. Mrs. Nelson became septic, went into septic shock during the morning of July 22nd, and she had a cardiac arrest while being prepared for surgery to address a perforated or dead bowel. She was resuscitated. After the surgery, Mrs. Nelson was given dopamine and Levophed to raise and control her blood pressure. At 3:00 p.m. on July 22nd, Dr. Shepherd switched Mrs. Nelson's medication to vasopressin. At approximately 11:00 p.m., Mrs. Nelson's blood pressure started to fall, her pulse became unstable and she died.

¶ 5 A medical malpractice action was brought against Mrs. Nelson's medical providers for her last illness. Two defendants, Dr. Shepherd and Enid Medical Associates, moved to exclude the proposed testimony of plaintiffs' two expert witnesses. They argued each witness had not provided legally proper testimony on the issue of the cause of Mrs. Nelson's demise because the testimony did not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The two defendants also sought summary judgment because the causation element of the malpractice claim action was missing from plaintiffs' claim.

¶ 6 The trial court ruled inadmissible the testimony from plaintiffs' two expert witnesses and granted summary judgment to the two defendants. The trial court made an express determination that there was no just reason for delay and expressly directed the filing of a final judgment. The plaintiffs appealed and the Court of Civil Appeals affirmed the trial court's order. This Court granted plaintiffs' petition for certiorari.

Appellate Review Standard for Summary Judgment and a Daubert Order Excluding Testimony on Causation

¶ 7 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment.1 Summary judgment is proper when a party is entitled to judgment “as a matter of law” based upon the submitted evidentiary materials.2

¶ 8 Plaintiffs' action is based upon allegations that the two defendants proximately caused the injuries. A medical malpractice claim, like all negligence claims, contains three elements: (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) plaintiff's injuries proximately caused by the defendant's failure to exercise the required duty of care.3

¶ 9 Evidence of causation necessary for a negligence action, proximate cause,4 is usually an issue of fact to be determined by a jury; and proximate causation “becomes a question of law for the court only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury.”5 If a defendant establishes there was no legally cognizable causal connection between the defendant's conduct and the injuries suffered by the plaintiff, then the issue of causation becomes a question of law, and a defendant is entitled to summary judgment as a matter of law.6

¶ 10 Defendants' combined motion for summary judgment argued: Plaintiffs cannot establish causation, an element of negligence, against Dr. Shepherd. Therefore, Dr. Shepherd is entitled to summary judgment.” Defendants supported this statement referencing the trial court's previous determination that Dr. Russell's testimony was inadmissible upon application of the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc. , supra .

¶ 11 In Christian v. Gray we explained a clear abuse of discretion appellate standard applies when we review a decision on the admissibility of expert testimony, and a clear abuse of discretion may be shown by an error of law or an error of fact: “An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.”7 A trial court determination that no fact exists of record to support the issue of fact submitted for resolution is a determination of an issue of law and requires a de novo review.8 Thus, a trial court determination that no fact exists in the trial court record, i.e., a complete absence of proof, to support the reliability of a particular expert for the purpose of admission of that expert's opinion presents an issue for de novo review.9

¶ 12 In summary, we use a nondeferential appellate standard and review de novo a trial court's order granting summary judgment, and we use a nondeferential appellate standard and review de novo a trial court's Daubert order which determines the lack of facts supporting the reliability of a particular expert's opinion for the purpose of admission at trial.

The Daubert Challenge and the Record

¶ 13 The Oklahoma Evidence Code, 2702, provides: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case.”10 An expert's opinion must be “based on what is known,”11 i.e. facts and data, that are then used as part of a reliable method in forming an opinion.

¶ 14 Plaintiffs' response to the Daubert motion included Dr. Russell's opinion, and various articles and portions of depositions. His opinion relies on various published peer-reviewed articles. One of these is an article stating doses of vasopressin greater than 0.04 units/minute have been associated with decreases in cardiac output and cardiac arrest. Mrs. Nelson received a vasopressin “fixed dose” of 0.20 units/minute which was not tapered during infusion, although the order had been given by Dr. Shepherd to taper her dose. Dr. Russell testified that “the use of vasopressin in septic shock is off label ... [and] many of the drugs we use in intensive care are by some definition off label ... [and this results in dosing off label] because there's no label for vasopressin in septic shock.” Dr. Russell did not object to Mrs. Nelson receiving vasopressin, he objected to the dosage she received and that it was not a tapered dosage.

¶ 15 Defendants argue the recommended dosage for vasopressin in the published articles relied on by Dr. Russell are overly cautious concerning potential cardiac complications and not based upon science. Attached to plaintiffs' response is a statement by Dr. Russell stating that it is not speculation that a 0.2 units/min dose of vasopressin can cause cardiac arrest. He stated that “the precise dose of vasopressin that causes coronary vasoconstriction in humans is difficult to know, but that based on my studies and the literature the dose is in the range of 0.08 to .1 units/minute.” He relies upon a 2001 published study,12 and statements in this study are challenged by defendants. Defendants argue the opinions by Dr. Russell and Dr. Sheena are mere speculation and are not based upon scientific research or proper clinical observation. Defendants' motion is accompanied by photocopies of several articles in their Appendix of Literature.

¶ 16 Dr. Russell relies upon his clinical experience (observation), a published report based upon a review of the literature for...

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