Johnson aka Macleod v. Watts

Johnson aka Macleod v. Watts

IN THE UTAH COURT OF APPEALS
 

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Lucy Johnson aka Lucy Macleod,

Plaintiff and Appellant,

v.

Gary Watts, M.D.; and Douglas Kohler, M.D.,

Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031019-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 122

 

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Fourth District, Provo Department

The Honorable James R. Taylor

Attorneys: Clark Newhall, Salt Lake City, for Appellant

Curtis J. Drake, Scott Dubois, and Tawni J. Sherman, Salt Lake City, for Appellee

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Before Judges Bench, Jackson, and Thorne.

THORNE, Judge:

    Lucy Johnson appeals the trial court's grant of summary judgment, dismissing Dr. Gary Watts as a defendant in this matter. We affirm.

    The trial court determined that Watts's initial duty of care to Johnson ended when he referred her to Dr. Douglas Kohler, and that Kohler's independent actions broke the chain of causation between Watts and Johnson's allegedly unnecessary surgery. The trial court also determined that Johnson had failed to present expert testimony linking Watts's postoperative care of Johnson to any particular harm, or establishing that Johnson's second surgery would have been performed any sooner had Watts consulted Kohler. The trial court certified its summary judgment order as final under rule 54(b), and Johnson appeals. See Utah R. Civ. P. 54(b).

    A negligence claim consists of four essential elements: duty, breach, proximate cause, and damages. See Thurston v. Workers Comp. Fund, 2003 UT App 438,¶12, 83 P.3d 391. "Proximate cause is that cause which, in the natural and continuous sequence (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause--the one that necessarily sets in operation the factors that accomplish the injury." Id. at ¶14 (citations, quotations, and alteration omitted). Because of the complex issues involved in determining proximate cause in a medical malpractice case, a plaintiff usually must provide expert testimony establishing the proximate cause of his or her injury. See Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct. App. 1997). While ordinarily a question of fact, see Thurston, 2003 UT App 438 at ¶13, "summary judgment may be granted on proximate cause in appropriate circumstances," id. at ¶16. This case presents such circumstances.

    The trial court was correct in concluding that Johnson's first theory of recovery against Watts is barred by the concept of efficient intervening cause. See id. at ¶14. There is no dispute that Kohler acted independently in his diagnosis and treatment of Johnson. Absent some allegation of Watts's knowledge of, or participation in, Kohler's decision, Watts's mere referral of Johnson to Kohler cannot be said to be the proximate cause of the allegedly unnecessary surgery or its complications.

    Johnson's second theory of recovery fails as a matter of law for lack of expert testimony that her second surgery would have taken place any earlier had Watts consulted Kohler or another surgeon upon readmitting Johnson to the hospital. Without such testimony, the question of whether any particular delay in treatment was caused by Watts's failure to consult would be "left to conjecture." Id. at ¶13 (quotations and citation omitted). "[W]hen causation is left to conjecture, the plaintiff must fail as a matter of law." Id. at ¶23 (quotations and citation omitted).

    Both of Johnson's claims against Watts fail as a matter of law for lack of evidence of causation.(1) Accordingly, the trial court's summary judgment in Watts's favor is affirmed.

______________________________

William A. Thorne Jr., Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. We also note that Johnson failed to present evidence linking Watts to any harm allegedly occurring after Johnson's November 24, 1998 discharge from the hospital.