Robinson v. Intermountain Health Care, Inc., 860063-CA

• Citation: 740 P.2d 262
• Decision Date: 21 July 1987
• Docket Number: No. 860063-CA,860063-CA
• Parties: Amy G. ROBINSON, Plaintiff and Appellant, v. INTERMOUNTAIN HEALTH CARE, INC., a Utah corporation, dba Latter-Day Saints Hospital; and John Does I through XX inclusive, Defendants and Respondents.
• Court: Court of Appeals of Utah

Page 262

740 P.2d 262

Amy G. ROBINSON, Plaintiff and Appellant, v. INTERMOUNTAIN HEALTH CARE, INC., a Utah corporation, dba

Latter-Day Saints Hospital; and John Does I

through XX inclusive, Defendants and Respondents.

No. 860063-CA.

Court of Appeals of Utah.

July 21, 1987.

Charles W. Dahlquist, Norman J. Younker, Kirton, McConkie & Bushnell, Salt Lake City, for defendants and respondents.

Jeffrey Weston Shields, Shields, Shields & Holmgren, Salt Lake City, for plaintiff and appellant.

Before JACKSON, GARFF and BILLINGS, JJ.

OPINION

JACKSON, Judge:

Amy Robinson appeals the summary judgment entered against her, dismissing her medical negligence complaint for injuries from a severe infection allegedly introduced by an injection. We affirm the judgment below.

Under Utah R.Civ.P. 56(c), summary judgment can be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Utah Farm Prod. Credit Ass'n v. Wasatch Bank of Pleasant Grove, 734 P.2d 904, 905 (Utah 1987); Barlow Soc'y v. Commercial Security Bank, 723 P.2d 398 (Utah 1986). Any doubts or uncertainties concerning issues of fact must be construed in favor of the party opposing summary judgment. Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1987); Mountain States Tel. & Tel. v. Atkin, Wright & Miles, 681 P.2d 1258, 1261 (Utah 1984).

Viewed in this light, the record shows the following events leading up to this lawsuit. On March 18, 1982, Robinson entered respondent LDS Hospital for a routine tonsillectomy because of recurrent tonsillitis. It was performed by her physician, Dr. Elvon Jackson, the next day. During her hospital stay she was given three injections in her left hip, including one of Demerol just before her discharge on March 20. They were administered with prepackaged single-dose needles that were immediately discarded.

Appellant was readmitted through the hospital's emergency room the day after her release, with extreme pain and inflammation at the injection site and serious septic shock (bacterial poisoning of the blood). At the time of her readmission, there were no other clear signs of infection elsewhere in appellant. Because of this, Dr. Jackson, Dr. Harold Cole, the emergency room physician, and Dr. John Burke, respondent hospital's infectious disease consultant, concluded on March 21 that the infection was from clostridia introduced by a needle. On the basis of this diagnosis, she was immediately operated on to remove the infected hip tissue and muscle.

Twenty-four hours later, a laboratory culture of the removed abscess material showed that the infection was caused by the Beta Streptococcus Group A bacterium, the most typical cause of common tonsillitis, not by clostridium. Robinson's throat culture did not test positive for the streptococci. Significantly, however, a fluorescent antibody stain of tissue from her removed tonsil was also positive for Beta Streptococcus Group A on March 22. As part of the hospital's investigation of the incident, throat, hand, and anal cultures were taken on March 23 from the three nurses who had administered preoperative or postoperative injections to Robinson. All were negative for Beta Streptococcus Group A, strongly supporting the elimination of the nurses themselves as transmitters of the infection. Robinson spent three weeks in the hospital recovering from the infection and surgery.

Robinson filed suit in January, 1983, broadly alleging negligent failure to observe customary standards of cleanliness, injection technique, sterilization, and medical procedures. No claim was made that she had been negligently subjected to surgery based on a diagnosis that turned out to be incorrect. Discovery ensued. Appellant was advised of the positive March 22 stain of her tonsil tissue in respondent hospital's June 1, 1983 Answer to Plaintiff's First Set of Interrogatories. Appellant subsequently deposed Drs. Burke, Jackson, and Cole, as well as the hospital's infection control practitioner, Julie Jacobsen.

Respondents filed a motion for summary judgment in March, 1984, based on the supporting affidavits of Dr. Burke and of the nurses who administered injections to Robinson. The nurses averred that the shots had been given in accordance with accepted standards of practice for sterility and administration of injections. Dr. Burke stated that, based on the tissue stain results, it was probable Robinson's tonsils were infected with Beta Strep Group A when she was first admitted for the tonsillectomy on March 18, 1982. He further opined that the infection probably spread from Robinson's throat to the injection site, either internally through her bloodstream or externally by Robinson's (or someone else's) handling of the injection site. He concluded this made it probable that the infection and resulting injuries were caused by the pre-existing tonsillar infection, not by the injection administration. He also concluded the likelihood of an injection-related infection (presumably caused by a contaminated needle or solution) from a prepackaged, single-lot injection was remote.

Robinson did not file any affidavits in support of her opposition to the Motion for Summary Judgment. Instead, in accordance with Utah R.Civ.P. 56(e), she directed the court to the deposition testimony, asserting that it raised genuine issues of material fact about the most likely source of Robinson's infection and the applicability of the doctrine of res ipsa loquitur, thereby precluding summary judgment. She relied primarily on Dr. Cole's testimony that, on the evening of March 21, 1982, he and Drs. Jackson and Burke agreed it was most likely the infection had been introduced by the needle.

She argued, in the alternative, that, pursuant to the doctrine of res ipsa loquitur, her case did not require expert testimony to contradict Dr. Burke's opinion about the infection's probable source. She claimed hers was the kind of injury that laymen knew did not occur in the absence of negligence. Finally, she argued that, even if she did have to produce expert testimony on this point, she did not have to do so before trial.

The trial judge concluded that res ipsa loquitur was not an appropriate theory of negligence and granted the motion for summary judgment. Accepting respondents' suggestion, he also granted Robinson thirty days to provide an expert witness to establish another theory of negligence. Robinson did not do so, but proceeded with this appeal after entry of a final judgment which dismissed her complaint with prejudice. On appeal, Robinson presents the same basic arguments against summary judgment as she made to the trial court.

In evaluating whether the evidence reveals a genuine issue of material fact about the most likely cause of Robinson's infection, we must take into consideration the eventual standard of proof, at trial on the merits, on each element of her negligence claim. See, e.g., Weber v. Springville City, 725 P.2d 1360 (Utah 1986). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The elements of a negligence action are (1) a duty of reasonable care owed by the defendant to the plaintiff; (2) a breach of that duty; (3) the causation, both actually and proximately, of the injury; and (4) the suffering of damages by the plaintiff. Weber v. Springville City, 725 P.2d at 1363. In most medical negligence cases a plaintiff must introduce expert testimony to establish the first and second elements, i.e., the standard of care and a breach of that standard. Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980). In some exceptional circumstances, the plaintiff is permitted to use the doctrine of res ipsa loquitur to carry the burden of establishing these two elements, because expert testimony would add nothing to common knowledge that the injury was the result of negligence. The evidentiary doctrine establishes an inference of negligence from the circumstances incident to the medical treatment. Nixdorf v. Hicken, 612 P.2d at 352. The loss of surgical instruments in patients, as in Nixdorf, is a classic example of those exceptional cases.

The mere invocation of the doctrine, however, does not result in its automatic application. In order to rely on res ipsa loquitur, a plaintiff must first establish a sufficient evidentiary foundation to support application of the doctrine and its inference of negligence. Id. See Talbot v. Dr. W.H. Groves' Latter-Day Saints Hospital, 21 Utah 2d 73, 440 P.2d 872 (1968). The circumstances supplying that foundation have been enumerated by the Utah Supreme Court

The rule ... is applicable when: (1) The accident was of a kind which, in the ordinary course of events, would not have happened had the defendant used due care, (2) the instrument or thing causing the injury was at the time of the accident under the management and control of the defendant, and (3) the accident happened irrespective of any participation by the plaintiff.

Moore v. James, 5 Utah 2d 91, 96, 297 P.2d 221, 224 (1956). See also Ballow v. Monroe, 699 P.2d 719, 721 (Utah 1985); Kusy v. K-Mart Apparel Fashion Corp., 681 P.2d 1232, 1235 (Utah 1984). Commenting on the plaintiff's dilemma in making this preliminary foundational showing in a medical malpractice action, the Utah Supreme Court has noted:

Generally, this requires the introduction of expert medical testimony to establish the fact the outcome is more likely the result of negligence than some other cause. This testimony would be necessary to provide the evidentiary basis from which the jury could conclude the result is more probably than not due to the negligence of the attending physician.

Nixdorf v. Hicken, 612 P.2d at 353.

Appellant...