Shawareb v. SSM Health Care of Okla., Inc.

• Decision Date: 24 November 2020
• Docket Number: No. 117,633,117,633
• Parties: Lamees SHAWAREB and Farouk Shawareb, Plaintiffs/Appellants, v. SSM HEALTH CARE OF OKLAHOMA, INC., d/b/a Bone and Joint Hospital at St. Anthony and Savannah Petty, Defendants/Appellees.
• Court: Oklahoma Supreme Court

480 P.3d 894

Lamees SHAWAREB and Farouk Shawareb, Plaintiffs/Appellants,

v.SSM HEALTH CARE OF OKLAHOMA, INC., d/b/a Bone and Joint Hospital at St. Anthony and Savannah Petty, Defendants/Appellees.

No. 117,633

Supreme Court of Oklahoma.

FILED NOVEMBER 24, 2020

Kenyatta R. Bethea, Holloway Bethea & Osenbaugh, Oklahoma City, Oklahoma, for Plaintiffs/Appellants.

Alexander C. Vosler, Alexandra G. Ah Loy, and Leslie L. Jones, Johnson Hanan Vosler Hawthorne & Snider, Oklahoma City, Oklahoma, for Defendants/Appellees.

EDMONDSON, J.

¶1 The two primary issues raised on certiorari are whether (1) the trial court's summary judgment procedure created reversible legal error, and (2) an expert medical opinion was necessary for plaintiffs on summary judgment. Plaintiffs argue an expert is not necessary to explain a hospital's standard of care and causation of plaintiff's injury when (1) a hospital employee gave plaintiff, as a hospital patient, a cup of hot water to make hot tea, (2) the patient was receiving narcotic therapy altering her ability to make a cup of hot tea in a safe manner, (3) this was the first cup of hot water received by patient during her hospitalization, (4) the employee fixed a lid securely on the top of the cup, (5) the employee did not assist the patient with the lid, and (6) upon the patient receiving the cup and attempting to remove the lid the water spilled on the patient causing deep second and "potential third degree" burns

to patient's thigh.

¶2 We hold the summary judgment must be reversed due to a prejudicial procedural error in the trial court. The trial court granted defendants' motion to strike plaintiffs' witness list when the list did not contain the name of plaintiffs' expert witness used by plaintiffs when responding to defendants' motion for summary judgment. The trial court ruled plaintiffs failed to have an expert witness necessary for a medical negligence action, and then granted summary judgment to defendants. The trial court's ruling granting the motion to strike and summary judgment occurred eight days after the motion to strike was filed. Oklahoma District Court Rule 4(e) allows fifteen days for a party to respond to a motion to strike. We need not adjudicate whether a medical expert's opinion is necessary to explain the standard of care for a hospital or the effect of narcotics on the patient's ability to use hot water in the circumstances presented by the parties in this case. However, we explain the case as presented by the parties for the context of the motion to strike.

¶3 Lamees Shawareb was a patient in the Bone and Joint Hospital at St. Anthony for postoperative care after her knee surgery. This was her second knee surgery at the same hospital where she had obtained favorable results, except for one incident which occurred after her second surgery on the day she was discharged from the hospital. She was handed a cup of hot water by a hospital employee and when Lamees tried to remove the lid from the cup of hot water it spilled on her thigh causing burns. She had not previously been given a cup of hot water to make tea during her hospitalization or warned of the water's temperature when the cup was handed to her.

¶4 The record on appeal states Lamees was "seen at Mercy" the day after she was burned, and she was treated at "Baptist Burn Center" for "deep second degree burns

and potential third degree burns" after her discharge from Bone and Joint Hospital.¹ Lamees Shawareb and her spouse, Farouk Shawareb, brought an action in District Court alleging the hospital and its employees failed to properly monitor a hot beverage machine, hot beverages were in excess of an acceptable and reasonable temperature for the public and a patient on narcotic therapy, and scalding hot water was served to Lamees without warning her concerning the water's temperature.

¶5 Plaintiffs state the business which monitored the vending machines at the hospital "received a complaint that the liquid coffee machines at St. Anthony's were too hot and needed to be tuned down." An employee of the business servicing the coffee machine testified concerning a work order he received in March of 2016 to make a service call at the hospital because "liquid coffee machines may be too hot, need to be turned down." Further, a comment was made to him from an employee in his dispatch center stating "several people have been burnt by machine." A photocopy of poor quality is attached to plaintiffs' response, and it appears to be a work order identified by the employee and stating "several people have been burnt by the machine."

¶6 The vending machine employee testified that while documents had been previously created relating to servicing a machine's temperature setting there was no longer any document that he knew of showing his test results for the vending machine in March 2016 because the business had been "transitioning from paper to internet." He testified that while he then currently takes video of a machine's temperature settings during servicing no such video was available for when he serviced the machine after Lamees received her burns. He testified his recollection was that the machine was checked "and it was already at the minimum so there was no action [taken at that time to change the temperature]." He testified he serviced the machine again in November 2017 and it was operating at the correct temperature. The vending machine company was a party in the trial court proceeding.

¶7 The hospital and its employee filed a combined motion for summary judgment. Defendants stated a nurse assistant (or "nurse aid") brought Lamees a cup of hot water at Lamees' request to make a cup of tea, and Lamees spilled the hot water on herself. Plaintiffs filed a response to defendants' motion for summary judgment on October 4, 2018. Plaintiffs filed their "final witness and exhibit list" on Wednesday, October 17, 2018, and it did not include the name of plaintiffs' expert they relied on in their response to defendants' motion for summary judgment. On October 26, 2018, defendants filed both a motion to strike plaintiffs' expert witnesses and a reply for summary judgment.

¶8 Defendants' motion to strike plaintiffs' expert witnesses was based upon: (1) Plaintiffs did not name this witness in plaintiffs' final witness and exhibit list filed October 17th; (2) No expert witness was named in this filing; (3) The trial court's previously entered scheduling order required preliminary list of witnesses and exhibits be exchanged no later than 60 days prior to pretrial conference (60 days prior to November 14, 2018); and (4) The final exchange of witness lists was required "30 days prior to Pretrial" conference.² The scheduling order states in the same numbered paragraph setting deadlines for the witness lists that "additional witness/exhibits shall be stricken by the Court, absent extraordinary circumstances." This scheduling order states the pretrial conference is on November 14, 2018. The sole objection of defendants to plaintiffs' expert testifying at trial was plaintiffs' failure to include the name of plaintiffs' expert on the final witness list filed by plaintiffs within the time limit set by the scheduling order.³ Defendants argued "Plaintiffs submitted their Final Witness and Exhibit List two days late on October 17, 2018."⁴

¶9 Defendants replied to plaintiffs' response on summary judgment. They argued plaintiffs' expert, a "certified nurse assistant" did not possess authority to prescribe or administer narcotics and was "clearly not qualified to render the neurologic and narcotics-related opinions relied upon by Plaintiffs."⁵ They argued the name of this witness was not included in plaintiffs' final list of witnesses and exhibits. Defendants asserted plaintiffs did not produce any qualified expert testimony to support their claims. They stated Lamees "had not yet taken her narcotics at the time she requested the hot water."⁶ They argued "It is uncontroverted that Mrs. Shawareb was not under the influence of narcotics at the time she spilled the hot water."⁷ Further: "Absent a qualified physician expert who can testify about the effects of narcotics on a person's neurological status, Plaintiffs cannot controvert these facts, and her arguments lack adequate evidentiary support."⁸

¶10 Defendants expressly stated on summary judgment "the affirmative defense of assumption of the risk is dispositive of this matter."⁹ Assumption of the risk is a defense raising a fact issue decided by a jury as required by the Oklahoma Constitution.¹⁰ The two well-known "exceptions" to submitting the defense to a jury are (1) if "the plaintiff fails to present evidence showing primary negligence on the part of the defendant, or (2) if there are no material facts in dispute, and reasonable minds exercising fair and impartial judgment could not reach differing conclusions."¹¹ The first exception, "lack of primary negligence" exception, is not, in a strict sense, an exception for applying or adjudicating the affirmative defense.¹² Rather, this exception is the fundamental premise underlying all negligence suits stating a defendant is not liable without primary negligence being shown.¹³ In other words, the affirmative defense need not be adjudicated by a jury when the negligence of the defendant is not shown by the plaintiff as required for the procedural context, which is summary judgment in the matter before us. The second exception, "no material facts in dispute," relates to no dispute on the facts relating to the assumption of risk affirmative defense, as opposed to the facts relating to primary negligence.¹⁴ The trial court focused on this first argument and examined whether a negligence cause of action had been shown by plaintiffs.

¶11 A summary judgment process requires the parties to raise pleaded and unpleaded uncontroverted material facts on the material legal issues relating to whether a single inference is created in favor of the movant for a...