Yarbrough v. Keith D. Wilkey & Orthopedic Assocs., LLC

• Decision Date: 15 December 2016
• Docket Number: Case No. 4:15-CV-926-CEJ
• Parties: IMOGENE YARBROUGH, Plaintiff, v. KEITH D. WILKEY and ORTHOPEDIC ASSOCIATES, LLC, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

IMOGENE YARBROUGH, Plaintiff, v. KEITH D. WILKEY and ORTHOPEDIC ASSOCIATES, LLC, Defendants.

Case No. 4:15-CV-926-CEJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 15, 2016

MEMORANDUM AND ORDER

This matter is before the Court on the joint motion of defendants Keith D. Wilkey, M.D., and Orthopedic Associates, LLC, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff has responded in opposition and the issues are fully briefed.

I. Background

Plaintiff Imogene Yarbrough brings this medical malpractice action against defendants Keith D. Wilkey, M.D. and Orthopedic Associates, LLC.¹ It is undisputed that plaintiff sought treatment from defendants for lower back pain and spinal stenosis with left leg radiculopathy (severe lower back and leg pain). Plaintiff underwent lumbar spine surgery at St. Clare Hospital on June 13, 2013, to treat these conditions.² While operating, Wilkey "inadvertently created a nick or tear inthe dura, which is the outermost layer of membrane covering the spinal cord and nerve roots." Id. The parties agree that Wilkey then used sutures and DuraSeal³ to repair the tear. Subsequent to the surgery plaintiff allegedly developed cauda equina syndrome. Plaintiff alleges that she suffered loss of bladder control, experienced "substantial increase in pain in her back and lower extremities," and "lost feeling in her buttocks and vaginal areas." Id. at 4.

Plaintiff asserts that her injuries resulted from the defendants' negligence. Specifically, plaintiff contends that defendants were negligent (1) in the application of DuraSeal to the dural tear and (2) in failing to perform post-operative diagnostic studies, such as an MRI or CT myelogram, after observing new symptoms prior to plaintiff's discharge on June 16, 2013. Plaintiff's sole expert witness, Robert Beatty, M.D., has opined that Wilkey failed to meet the standard of care in performing plaintiff's spinal surgery and addressing post-operative symptoms.

In their motion for summary judgment, defendants argue that plaintiff lacks sufficient evidence necessary to prove that their negligence was the but-for cause of plaintiff's injuries. They further contend that plaintiff has not established damages or provided admissible expert testimony.

II. Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the moving party shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, thecourt is required to view the facts in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If the moving party meets its burden, the non-moving party may not rest on the allegations of its pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012); Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Matsushita, 475 U.S. at 587).

III. Discussion

Medical Malpractice Standard

Federal jurisdiction in this matter arises from diversity of citizenship. Accordingly, Missouri law applies. See Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996); Dugger v. United States, 936 F. Supp. 662, 663 (E.D. Mo. 1996).

Under Missouri law, a plaintiff must prove three factors to establish a prima facie case of medical malpractice: (1) "an act or omission of the defendant failed to meet the requisite medical standard of care; (2) the act or omission was performed negligently; and (3) the act or omission caused the plaintiff's injury." Mueller v.Bauer, 54 S.W.3d 652, 656 (Mo. Ct. App. 2001) (citing Brickey v. Concerned Care of the Midwest, Inc., 988 S.W.2d 592, 596 (Mo. Ct. App. 1999)). Here, defendants argue that plaintiff has failed to establish a causal connection between Wilkey's alleged negligence and plaintiff's injuries.

"Usually, the test for a causal connection between a defendant's negligence and a plaintiff's injury is whether the evidence shows that the injury would not have been sustained but for the negligence." Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 566 (Mo. Ct. App. 2002). The defendant's negligence, however, need not be the sole cause, but can be "a cause or a contributing cause" of the plaintiff's injury. Id. at 567 (emphasis added). A prima facie showing of causation requires the plaintiff to show that defendant's "negligent conduct more probably than not was the cause of the injury." Id. (citing Morrison v. St. Luke's Health Corp., 929 S.W.2d 898, 901 (Mo. Ct. App. 1992)).

In a complex medical malpractice cases—i.e., one necessitating "surgical intervention or other highly scientific technique for diagnosis"—expert testimony is required to establish causation. Nadolski v. Ahmed, 142 S.W.3d 755, 761 (Mo. Ct. App. 2004) (internal quotations and citations omitted). When there are two or more possible causes, such expert testimony "must be given to a reasonable degree of certainty." Coon v. Dryden, 46 S.W.3d 81, 91 (Mo. Ct. App. 2001). "When an expert merely testifies that a given act or failure to act "might" or "could" have yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value." Id. In other words, an expert's mere conjecture and speculation are insufficient to show causation. Mueller v. Bauer, 54 S.W.3d 652,657 (Mo. Ct. App. 2001) (citing Gaddy v. Skelly Oil Co., 259 S.W.2d 844, 853 (1953)).

Negligent Application of DuraSeal

Plaintiff maintains that Wilkey improperly applied DuraSeal to repair the dural tear. According to plaintiff's expert, Wilkey employed DuraSeal in an enclosed space containing nerves rather than along the suture line (thereby violating the product's explicit warning). [Doc. #26-7 at 18, 30]. In support of this contention, Dr. Beatty relied on a July 18, 2014, CT scan revealing a mass in plaintiff's spine compressing the cauda equina. Id. at 20-24. On the basis of this scan, he also noted that Wilkey removed "very little bone" and "didn't remove the lamina"; therefore, when Wilkey managed the leak in the dura by syringe, he could have inadvertently used DuraSeal near "confined bony structures where nerves are present." Id. at 17-19, 21. Dr. Beatty concluded that it was more likely than not and within a reasonable degree of medical certainty that the DuraSeal caused plaintiff's cauda equina syndrome. Id. at 50.

Dr. Beatty gave the following relevant deposition testimony in response to defense counsel's questions:

Q: Tell me why you felt that [the DuraSeal] [is] a key part of the case.

A: Well, if you want to get into the thinking from the very beginning, the lady has the cauda equina syndrome right after the surgery. Within [a] day or two, she's got 900 cc's of residual urine. She can't feel her stool pass eventually. So there's no question she has this.

And looking at the CT scan that she had a year later, she has a mass in the spinal canal . . . What it is, I don't know. It may well be organized material that's product simulated. I don't know. But there's a lump there and we can look at the films eventually here.

Q: Okay.

A: But the point is that when I looked at this, I wasn't sure what it was. And then I thought about the DuraSeal and if you read the literature on it, it is - - there's a warning not to use it in an enclosed space where there are nerves.

And I went through these films again. He's removed very little bone and then he's encountered a leak in the dura . . . So something is occupying space. He says he sewed up the little dura - - the hole in the dura and then he put in this material which swells. According to this it's cautioned that you don't put it into an enclosed space.

Id. at 17-18.

Q: So it's your opinion to a reasonable degree of medical certainty that the DuraSeal caused cauda equina for Ms. Yarbrough?

A: Yeah, right, right. And in the presence of not removing -- putting it into an enclosed space and in the presence of a -- of a hole in the dura.

Id. at 50.

Defendants contend that Dr. Beatty provides inadequate evidence as to (1) how Wilkey applied DuraSeal during plaintiff's surgery, (2) the nature of the mass on the CT scan, (3) whether this mass existed immediately after the surgery or while plaintiff was under Wilkey's care, (4) whether this mass could be DuraSeal, which generally absorbs into the body within eight weeks, and (5) whether DuraSeal stimulated a tissue response that produced this mass. [Doc. #25 at 7-9; Doc. #30 at 2]. Defendants further argue that Dr. Beatty's use of the words "probably" and "gut feeling" demonstrate that plaintiff has not made out a prima facie case of medical malpractice. [Doc. #25 at 6-7]. Finally, defendants note that the neurosurgeon that ordered plaintiff's July 2014 CT scan did not share Dr.Beatty's diagnoses. Each of these issues, according to defendants, shows that Dr. Beatty's "opinion about the cause of [plaintiff's cauda equina syndrome] is based on speculation and is unsupported by facts" and therefore "devoid of evidentiary value." Id. at 8.

The Court finds that there are genuine issues of material fact regarding a possible "causal connection between [the] procedure[] and the injury sustained...