Jones v. Block

Jones v. Block (99-336); 171 Vt. 569; 762 A.2d 846 

[Filed 16-Oct-2000]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 1999-336

                            SEPTEMBER TERM, 2000


Laurie E. Jones	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Bennington Superior Court
                                       }	
Robert S. Block and 	               }
Orthopaedic and Hand Surgery, PC       }	DOCKET NO.75-2-96 Bncv

                                                Trial Judge: John P. Morrissey 

             In the above-entitled cause, the Clerk will enter:


       Plaintiff Laurie Jones appeals from the Bennington Superior Court's
  order granting the motion  of defendants Dr. Robert Block (defendant) and
  Orthopaedic and Hand Surgery, P.C. (OHS), for  judgment as a matter of law
  on counts I and II of her medical malpractice complaint.  On appeal, 
  plaintiff argues that she introduced enough evidence to get to the jury on
  those counts.  We agree and  reverse and remand.

       Plaintiff injured her neck in February 1992 and sought treatment first
  from her family doctor  and then from defendant.  At her first appointment
  with defendant, he reviewed her MRI scan, taken  in September 1992, and
  determined from it that she had ruptured a disk.  He recommended surgery, 
  and scheduled it for March 1993.  Prior to the surgery, however, plaintiff
  aggravated the injury when  she slipped on ice and fell.  She informed
  defendant of this, and he concluded that her injury now  involved the
  spinal cord.  Despite this conclusion, he did not order a new MRI and went
  forward as  scheduled with the surgery.  During the surgery, plaintiff
  suffered trauma to the spinal cord, resulting  in permanent neurological
  dysfunction diagnosed as Brown Sequard Syndrome.

       Plaintiff brought a four-count medical malpractice complaint against
  defendant and OCS,  defendant's professional corporation.  The first two
  counts alleged that defendant was negligent in  treating her and this
  negligence caused her permanent neurological dysfunction.  The second count 
  sought damages from OCS based on respondeat superior.  The third and fourth
  counts claimed  liability because of lack of informed consent to the
  surgical procedure.  The first two counts were  dismissed when the court
  granted judgment as a matter of law to defendant and OCS on these counts. 
  The third and fourth counts went to the jury, which rendered a verdict for
  defendants.

       A judgment as a matter of law may be granted if "a party has been
  fully heard on an issue and  there is no legally sufficient evidentiary
  basis for a reasonable jury to find for that party on that 

 

  issue."  V.R.C.P. 50(a)(1).  When applying this standard, we view the
  evidence in the light most  favorable to the nonmoving party and exclude
  the effect of any modifying evidence.  See Haynes v.  Golub Corp., 166 Vt.
  228, 233, 692 A.2d 377, 380 (1997).  The motion must be denied "if any 
  evidence fairly or reasonably supports a lawful theory of the plaintiff." 
  Id.

       In an action for medical malpractice, plaintiff has the burden of
  proving the applicable  standard of care, that defendant breached that
  standard, and that as a proximate result plaintiff  suffered injuries that
  would not otherwise have occurred.  See 12 V.S.A. § 1908(1)-(3). 
  Ordinarily,  these elements must be proved by expert testimony.  See Begin
  v. Richmond, 150 Vt. 517, 520, 555 A.2d 363, 365 (1988).

       The issue before us centers on the adequacy of the testimony of
  plaintiff's expert, Dr. Paul  Asdourian.  He testified that the relevant
  standard of care required defendant to obtain a new MRI  before performing
  the operation and that defendant failed to do so, thus breaching the
  standard of  care.  Defendant concedes that this testimony was sufficient
  to establish negligence, but contests  whether the expert testified
  adequately that this negligence was a proximate cause of plaintiff's 
  injuries.

       Plaintiff's expert witness testified that, in his opinion, plaintiff's
  spinal cord was traumatized  during surgery; plaintiff was left with a
  "permanent neurological deficit" - that is, Brown Sequard  Syndrome, and
  this injury would not have happened but for the lack of requisite care.  He
  went on to  testify that he believed that the extent of plaintiff's prior
  injury was not fully appreciated by  defendant before surgery, that the
  surgery was performed without sufficient information, and as a  result
  plaintiff suffered an injury that should have been avoided.  We believe
  this evidence is  sufficient to allow a jury to find proximate cause.  See
  Lockwood v. Lord, 163 Vt. 210, 213-16, 657 A.2d 555, 557-59 (1994).

       Defendant argues that even if the expert's direct examination was
  sufficient, this testimony was  so undermined by cross-examination that it
  left the testimony as a "bare opinion," inadequate to  avoid the Rule 50
  motion.  See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,
  711-14 (Tex. 1997).  We have reviewed the cross-examination, as well as
  the expert's additional  testimony on redirect examination.  While we agree
  that the cross-examination might have affected  the weight that the jury
  would have given the expert opinion, we conclude it is modifying evidence 
  that does not support the granting of the Rule 50 motion.

       Finally, defendant argues that this case is controlled by Utzler v.
  Medical Ctr. Hosp. of  Vermont, 149 Vt. 126, 540 A.2d 652 (1987), a medical
  malpractice case in which the superior court  granted a directed verdict on
  the care given by defendant doctor after surgery.  The Court upheld the 
  directed verdict reasoning:

    In support of this claim, plaintiff effectively offers only  the
    broad and conclusory testimony of an expert to the  effect that it
    was not "appropriate" for defendant to  discontinue caring for
    plaintiff in 1978 unless there was  a transference of care to
    another surgeon.  The expert 


 

    gave no reasons for his conclusion and no detail as to the 
    alleged failure of defendant to act "appropriately."

         Such testimony hardly establishes a duty of care,  deviation
    from that standard, and causation of injury.

  Id. at 128, 540 A.2d  at 654.  This is a very different case from Utzler. 
  Rather than giving a broad,  general statement of appropriateness, the
  expert in this case testified specifically on each element of  12 V.S.A. §
  1908, explaining why he believed each element was met in this case. 
  Defendant  believes his testimony on causation is speculative and
  unsupported by the record, but that criticism  goes to weight, not
  admissibility or sufficiency to meet plaintiff's burden.

       Plaintiff also argues here that her negligence claim should have
  reached the jury under the  doctrine of res ipsa loquitur.  Defendant
  argues that the facts do not support the application of the  doctrine in
  this case.  Although plaintiff presented this theory below, the trial court
  never stated  specifically that it was rejecting the theory or gave any
  reasons for a rejection.  Since we are  reversing the court's judgment as a
  matter of law, it is unnecessary for us to reach this question.  In  the
  light of the limited record, we also conclude it is inappropriate for us to
  reach it.

       Reversed and remanded.
  

                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice