BENSON v. TKACH

BENSON v. TKACH
2001 OK CIV APP 100
30 P.3d 402
72 OBJ 2443
Case Number: 94640
Decided: 03/20/2001
Mandate Issued: 07/26/2001
DIVISION II
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

RUTH B. BENSON, surviving daughter and next of kin of Edd A. Robbins, deceased, Plaintiff/Appellant, v.
STEPHEN TKACH, M.D.; BONE AND JOINT HOSPITAL (trade name for OKLAHOMA ORTHOPEDIC AND ARTHRITIS FOUNDATION); HEALTHSOUTH REHABILITATION HOSPITAL (trade name for HEALTHSOUTH OF OKLAHOMA, INC., a Delaware corporation); McBRIDE CLINIC, INC., an Oklahoma Corporation; and DOES ONE THROUGH FOUR, Defendants/Appellees

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE DANIEL L. OWENS, TRIAL JUDGE

REVERSED AND REMANDED

M. Michael Arnett, C. Ronald Britton, Arnett Law Firm, Oklahoma City, Oklahoma, for Plaintiff/Appellant
Stephen Peterson, Taylor J. Wyand, Fenton, Fenton, Smith, Reneau & Moon, for Defendant/Appellee, Oklahoma City, Oklahoma, Bone and Joint Hospital
Christy L. Butler, John R. Paul, The Paul Law Firm, Tulsa, Oklahoma, for Defendant/Appellee Healthsouth Rehabilitation Hospital
Robert C. Margo, L. Earl Ogletree, Short, Wiggins, Margo & Butts, Oklahoma City, Oklahoma, for Defendants/Appellees,Stephen Tkach, M.D., and McBride Clinic, Inc.

TAYLOR, Judge

¶1 In this medical malpractice action, Plaintiff, Ruth Benson, appeals the trial court's denial of her motion to reconsider following its grant of summary judgment in favor of defendants, Dr. Stephen Tkach, Bone and Joint Hospital, Healthsouth Rehabilitation Hospital, and McBride Clinic, Inc. Based on the record and applicable law, we reverse and remand.

¶2 Plaintiff is the daughter of Edd A. Robbins. In October 1994, Mrs. Robbins underwent hip replacement surgery. The surgery was performed by Dr. Tkach (who Plaintiff asserts is an employee of McBride Clinic) at Bone and Joint Hospital. Mrs. Robbins was later transferred to Healthsouth Rehabilitation Hospital for rehabilitation. After the surgery, Mrs. Robbins developed an infection and died on June 11, 1995.

¶3 Plaintiff filed a malpractice lawsuit. She asserted Defendants acted negligently, causing Mrs. Robbins pain and suffering and, ultimately, her death. Defendants filed motions for summary judgment, and Plaintiff dismissed her case without prejudice to refiling.

¶4 Plaintiff refiled her petition, and again Defendants sought summary judgment. Defendants asserted they were entitled to summary judgment because Plaintiff had failed to produce any expert testimony in support of her allegations. Defendants submitted affidavits from Dr. Tkach and Healthsouth's director of nursing denying any negligence.

¶5 Plaintiff filed a response, attaching two affidavits. One was from an Arizona physician, Dr. Vadee Kroft. His affidavit, in its entirety, stated:

My name is Vadee Kroft, M.D., and I am a physician residing at 2000 Camino Rancho, Sierra Vista, Arizona. I am a graduate of the University of Arkansas School of Medicine and have practiced in Arkansas and also in Arizona.

I also am knowledgeable of the applicable standards and procedures for the medical practitioners, nursing facilities and [30 P.3d 404] hospitals involved in the treatment and care of the deceased, Edd Robbins. After reviewing the above referenced case involving the deceased Edd Robbins, it is my professional opinion that the defendants named in this lawsuit breached the standards of care owed to the deceased, Edd Robbins. Further the negligence and breaches of standards of care owed the deceased, Edd Robbins, by these defendants, proximately caused the death of Edd Robbins.

Further Affiant sayeth not.

¶6 Plaintiff also attached her own affidavit, in which she states:

A few days after her left hip was removed, my mother was transferred to Healthsouth Rehabilitation Hospital. The arrangements were made by Bone and Joint Hospital. While at Healthsouth Rehabilitation Hospital, my mother, Edd Robbins, was conscious and complained all the time of great pain, in the area of the surgery. Her wound from the surgery was draining. I trusted Dr. Tkach, McBride Clinic, and Healthsouth and Bone and Joint Hospital to provide the proper care to my mother. A few days after my mother was transferred to Healthsouth Rehabilitation Hospital, I observed her when I came in to visit sitting unattended in a wheelchair saturated from the waist down from drainage coming from her surgical wound. I was upset and pointed out this condition to the staff at Healthsouth. My mother was in agony from her pain.

Thereafter, she was transferred back to Bone and Joint Hospital and Dr. Tkach and other members of McBride Clinic treated her. They performed more surgery on her by opening up the hip again and cleaning the area. Anticiotics [sic] were administered through a tube. Again, I trusted Dr. Tkach, the McBride Clinic staff that the care given my mother was appropriate to stop the infection. My mother continued to suffer greatly from her left hip and upon several occasions, I asked Dr. Tkach about replacing the left hip joint, or at least removing it so the infected area could heal. Dr. Tkach refused to do so and stated that "Medicare had his hands tied," which told me he would not remove the source of the infection because there was no money to pay for the surgery.

¶7 Defendants filed replies, asserting Dr. Kroft's affidavit failed to include qualifying statements and specific allegations of negligence, and thus was insufficient to avoid summary judgment. Defendants also asserted Plaintiff's affidavit was insufficient to establish malpractice because Plaintiff was not a medical expert.

¶8 The trial court granted Defendants' motions for summary judgment. Plaintiff filed a motion to reconsider, reasserting that her affidavits created a substantial controversy as to material facts. The trial court denied her motion. Plaintiff appeals.

¶9 Summary judgment should be granted only where it is clear there is no substantial controversy as to any material fact, and should be denied if facts are conflicting, or if reasonable people, in the exercise of fair and impartial judgment, might reach different conclusions concerning an issue. First Nat'l Bank &Trust Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502. Plaintiff's motion to reconsider is the functional equivalent of a motion for new trial, see Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, 681 P.2d 757; therefore, our standard of review here is abuse of discretion, Graves v. Lewis, 1958 OK 176, 327 P.2d 672.

¶10 Normally, when a patient sues a physician for failure to properly diagnose or treat the patient, the issue of fact is one of science and must be established and determined upon the testimony of skilled, professional witnesses. White v. Burton, 1937 OK 381, 71 P.2d 694 (syllabus 1 by the court). In other words, the rule in medical malpractice cases is that a physician's negligence must ordinarily be established by expert medical testimony. Harder v. F.C. Clinton, Inc., 1997 OK 137, n.30, 948 P.2d 298. A plaintiff has the burden of proving through expert testimony: (1) the standard of medical care required of physicians, (2) that a duty existed and was breached, and (3) that this breach of duty resulted in harm to the plaintiff. See Grayson v. State, 1992 OK CIV APP 116, ¶¶ 12-13, 838 P.2d 546, 549.

[30 P.3d 405]

¶11 Plaintiff essentially asserts she has satisfied this rule by introducing Dr. Kroft's affidavit, in which he generally opines that all the defendants were negligent and all caused Plaintiff's mother's injury. We hold that the affidavit is not sufficient to satisfy the rule.

¶12 In Grayson, the plaintiff's only expert opined that the patient died in the hospital of a drug overdose. In holding that the trial court had correctly sustained the defendants' demurrers, the Court of Civil Appeals observed:

There is a total lack of evidence, however, in the instant case showing the required standard of care, [or breach or causation]. . . . [The expert witness] failed to give an opinion as to what type of care would come within the national standard of care [which is used to measure the appropriate standard of care of physicians in Oklahoma], or the care which would be insufficient to meet that standard.

Id.

¶13 Similarly, Plaintiff has failed to produce any evidence showing the required standard of care. The rationale for this rule is that a trier of fact must have sufficient technical and scientific testimony at its disposal to answer a scientific and technical question of fact. Boxberger v. Martin, 1976 OK 78, ¶ 14, 552 P.2d 370, 373. Dr. Kroft's blanket statement opining liability, without providing any information as to the required standard of care, and without offering any reason for his conclusions, is simply not sufficient to satisfy the rule. In regard to the affidavit's failure to offer reasons, the Oklahoma Supreme Court has recognized that:

The reasons given in support of the opinions rather than the abstract opinions are of importance, and the opinion is of no greater value than the reasons given in its support. If no rational basis for the opinion appears, or if the facts from which the opinion was derived do not justify it, the opinion is of no probative force, and it does not constitute evidence sufficient to authorize submission of the issue to the jury. . . .

Downs v. Longfellow Corp.,

¶14 However, we nonetheless agree with Plaintiff that summary judgment is inappropriate. While expert testimony is ordinarily required in cases involving medical negligence, courts have made exceptions to that rule. In Boxberger,

¶15 According to Plaintiff's affidavit, Dr. Tkach refused to perform additional surgery to allow her mother's infected area to heal because, "'Medicare had his hands tied,' which told me he would not remove the source of the infection because there was no money to pay for the surgery." Reasonable persons could infer from this remark and the surrounding circumstances that Dr. Tkach did not provide what he considered proper treatment because of financial considerations.

¶16 In some respects, the instant case is similar to Robertson v. LaCroix,

¶17 In Robertson, there was additional evidence tending to show causation. Nevertheless, we view Dr. Tkach's statement as an extrajudicial admission of negligence. Reasonable persons could conclude from the statement that Dr. Tkach failed to provide Plaintiff's mother with what he considered proper treatment. We hold the trial court abused its discretion in failing to grant Plaintiff's motion to reconsider the grant of summary judgment as to Dr. Tkach and McBride Clinic.

¶18 As to the remaining defendants, Bone and Joint Hospital and Healthsouth Rehabilitation Center, the court in Boxberger,

Where an injury is patent, objective rather than subjective, the plaintiff is competent to testify as to the injury, the treatment received therefor, and the reaction of such treatment, and this testimony is sufficient for the jury to render a verdict . . . and no expert medical testimony is necessary.

Similarly, in Turney v. Anspaugh,

¶19 The plaintiff brought a medical malpractice action against the first surgeon, and the jury rendered a verdict in the plaintiff's favor. On appeal, the surgeon alleged reversible error on the ground that the patient had provided no expert testimony about the proper standard of care the surgeon should have followed in post-operative treatment. In affirming the jury verdict, the court stated:

Here, with the surgeon having just performed a hysterectomy using an abdominal approach, the discovery and noting of a hard lump near the umbilicus, complaints of the patient after the operation, . . . subsequent discovery of the sponge through x-ray and of its removal by another doctor, no use of x-ray post-operatively though a known technique for detecting a sponge remaining internally after an operation, only common knowledge and experience is required to understand and judge any lack of care by the physician.

Id. at ¶ 21, 581 P.2d at 1308 (emphasis added).

¶20 Boxberger and Turney are instructive in the instant case. In her affidavit, Plaintiff attested that prior to the surgery on her mother's hip, she was not suffering from infections or receiving medication for infection, but that, after the surgery and the transfer to Healthsouth, the wound began to drain and the decedent was in great pain. Plaintiff stated:

A few days after my mother was transferred to Healthsouth Rehabilitation Hospital, I observed her when I came in to visit sitting unattended in a wheelchair saturated from the waist down from drainage coming from her surgical wound. I was upset and pointed out this condition to the staff at Healthsouth. My mother was in agony from her pain.

Plaintiff further stated that, in spite of subsequent corrective surgery, her mother continued to suffer great pain until her death.

¶21 Based upon Plaintiff's testimony, reasonable persons could conclude that the failure of Bone and Joint Hospital and Healthsouth Rehabilitation Hospital to provide proper [30 P.3d 407] medical treatment constituted gross negligence. The decedent's injury was so apparent and objective that expert testimony was not necessary for the issue of negligence to reach the jury.

¶22 We therefore hold that the trial court abused its discretion in granting summary judgment to the defendants. The grant of summary judgment is reversed, with the cause remanded for further proceedings.

¶23 REVERSED AND REMANDED.

¶24 RAPP, P.J., and COLBERT, J., concur.