Provost v. Fletcher Allen Health Care, Inc.

Provost v. Fletcher Allen Health Care, Inc. (2004-185); 179 Vt. 545; 890 A.2d 97

2005 VT 115

[Filed 06-Oct-2005]

                                 ENTRY ORDER

                                 2005 VT 115

                      SUPREME COURT DOCKET NO. 2004-185

                              MARCH TERM, 2005

  Dale Provost, et al.	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }      	Chittenden Superior Court
                                       }	
  Fletcher Allen Health Care, Inc.     }
                                       }	DOCKET NO. S1573-02 CnC

                                                Trial Judge: Matthew I. Katz

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

       ¶  1.  Plaintiffs Dale and Brenda Provost appeal a decision of the
  Chittenden Superior Court granting defendant Fletcher Allen Health Care,
  Inc.'s (FAHC) motion for summary judgment in a medical malpractice suit. 
  We agree that the trial court should not have granted summary judgment, and
  therefore reverse and remand.  

       ¶  2.  On October 26, 2000, plaintiff Dale Provost went to the
  Colchester Family Health Care Clinic, which is owned and operated by FAHC,
  to receive treatment for a severe allergic reaction.  Dr. Vivian Esparza,
  M.D., treated Mr. Provost, and, among other things, administered an
  intramuscular injection of benadryl into his left arm.  During the shot,
  Mr. Provost said "ouch."  Dr. Esparza asked if the shot hurt and then said,
  "perhaps I touched the bone with the needle.  I'll pull it back out a
  little bit."  She then finished the injection.  Shortly after receiving the
  shot and returning to his home, Mr. Provost began experiencing numbness and
  pain in his left arm.  He contacted the Clinic and was told to return to
  see Dr. Esparza the next day.  After seeing Mr. Provost at the follow-up
  appointment on October 27 and consulting with a neurologist, Dr. Esparza
  concluded that he most likely had a radial nerve palsy "secondary to [a]
  hematoma beneath the neuronal sheath from yesterdays [sic] benadryl
  injection."

       ¶  3.  In November 2001, Dr. John Johansson, D.O., evaluated Mr.
  Provost.  Dr. Johansson determined that Mr. Provost had sustained
  permanent, significant impairment to the radial nerve in his left arm as a
  result of the benadryl injection.  

       ¶  4.  In December 2002, Mr. Provost and his wife filed suit,
  alleging that Dr. Esparza had negligently administered the injection,
  damaging the radial nerve, and that FAHC was vicariously liable under the
  doctrine of respondeat superior.  
   
       ¶  5.  FAHC filed a motion for summary judgment in December 2003,
  contending that plaintiffs had failed to produce sufficient expert
  testimony to establish the elements of medical malpractice.  Plaintiffs
  then designated Dr. Johansson as their medical expert, filed a supplemental
  interrogatory response, and filed a brief in opposition to summary judgment
  supported by an affidavit from Dr. Johansson.  Dr. Johansson based the
  statements in his affidavit upon his review of Mr. Provost's medical
  records, Dr. Esparza's deposition transcript, and his November 2001
  examination of Mr. Provost.  

       ¶  6.  Specifically, Dr. Johansson opined, "to a reasonable degree
  of medical certainty," that "Dr. Esparza failed to exercise the appropriate
  degree of care" when she administered the benadryl injection because she
  "insert[ed] the needle to the point it made contact with the bone of the
  arm and injured the radial nerve."  He also stated that as a "direct
  result" of the injection, Mr. Provost "suffered significant nerve injury to
  the radial nerve in his left arm," equating to "28% whole person
  impairment."  Finally, he concluded that Dr. Esparza's failure to exercise
  the appropriate degree of care was a proximate cause of Mr. Provost's
  injuries, without which the injuries would not have occurred.

       ¶  7.  In response, FAHC challenged whether Dr. Johansson, who is an
  osteopathic physician with a practice in sports medicine, was competent to
  serve as an expert in the case.  FAHC also questioned whether Dr.
  Johansson's statements were made upon personal knowledge.  Finally, FAHC
  argued that summary judgment was required because Dr. Johansson's affidavit
  did not articulate a relevant standard of care, offer any details on how
  Dr. Esparza's treatment breached the standard of care, or establish that a
  breach of the requisite standard of care proximately caused Mr. Provost's
  injury.  Plaintiffs filed a response that addressed Dr. Johansson's
  credentials and reaffirmed that statements in the affidavit were made
  according to Dr. Johansson's personal knowledge. 

       ¶  8.  The superior court granted FAHC's motion, ruling that
  plaintiffs' expert affidavit consisted of conclusions that fail to "stand
  up to even a lenient scrutiny of proof."  In particular, the court
  emphasized that Dr. Johansson did not enunciate the standard of care owed
  to Mr. Provost by Dr. Esparza and failed to explain how Dr. Esparza
  deviated from the standard of care and thereby caused Mr. Provost's injury. 

       ¶  9.  On appeal, plaintiffs assert that the court failed to give
  them, as the nonmoving party, the benefit of all reasonable doubts and
  inferences when it concluded that plaintiffs' expert affidavit was
  insufficient to survive summary judgment.  We agree.  Plaintiffs provided
  an expert affidavit that states, to a reasonable degree of medical
  certainty, that Dr. Esparza deviated from the standard of care, proximately
  causing Mr. Provost's injury.  While the affidavit provides little explicit
  reasoning, it articulates a theory of the case sufficient to withstand
  summary judgment.  In effect, the trial court weighed Dr. Johansson's
  theory against other possible explanations for Mr. Provost's injury and
  granted summary judgment because plaintiffs had not eliminated those
  explanations as viable theories.  On summary judgment, however, the
  question is not how plaintiffs' theory measures up against any other-that
  weighing is left to the trier of fact.
        
       ¶  10.  On appeal, this Court reviews a motion for summary judgment
  de novo, employing the same standard as applied by the trial court. 
  Hardwick Recycling & Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, ¶ 14,
  15 Vt. L. Wk. 397, 869 A.2d 82.  To prevail on a motion for summary
  judgment, the moving party must show there is no genuine issue as to any
  material fact and that it is entitled to judgment as a matter of law. 
  V.R.C.P. 56.  Where a genuine issue of material fact exists, summary
  judgment may not serve as a substitute for a determination on the merits. 
  Human Rights Comm'n v. Benevolent & Protective Order of Elks, 2003 VT 104,
  ¶ 11, 176 Vt. 125, 839 A.2d 576.  

       ¶  11.  Defendant advocates that we should apply an abuse of
  discretion standard in our review of this case.  The abuse of discretion
  standard is inapposite here, however, because the trial court did not rule
  on the admissibility or foundation of Dr. Johansson's affidavit.  See
  General Electric Co. v. Joiner, 522 U.S. 136, 141-43 (1997) (holding that
  on a motion for summary judgment the admissibility of expert testimony is
  reviewed under the abuse of discretion standard); Sharp v. Transp. Bd., 141
  Vt. 480, 486, 451 A.2d 1074, 1076 (1982) ("Rulings as to the foundation of
  an expert's testimony is a matter of discretion with the [trial] court."). 
  The issue in the present case is whether plaintiffs have established a
  genuine issue of material fact such that the case cannot be resolved on
  summary judgment.  Therefore, the usual Rule 56 standard applies. 

       ¶  12.  A plaintiff bringing a medical malpractice claim must prove: 

    (1) The degree of knowledge or skill possessed or the degree of
    care ordinarily exercised by a reasonably skillful, careful, and
    prudent health care professional engaged in a similar practice
    under the same or similar circumstances whether or not within the
    state of Vermont.

    (2) That the defendant either lacked this degree of knowledge or
    skill or failed to exercise this degree of care; and

    (3) That as a proximate result of this lack of knowledge or skill
    or the failure to exercise this degree of care the plaintiff
    suffered injuries that would not otherwise have been incurred.

  12 V.S.A. § 1908.  The statute codified the common law elements of medical
  malpractice, which have "traditionally included a requirement that the
  plaintiff adduce evidence of a reasonable probability or reasonable degree
  of medical certainty that the defendant's conduct caused the injury." Smith
  v. Parrott, 2003 VT 64, ¶ 11, 175 Vt. 375, 833 A.2d 843 (quotations
  omitted).  Except where the alleged violation of the standard of care is so
  apparent that it can be understood by a layperson without the aid of
  medical experts, the burden of proof imposed by § 1908 requires expert
  testimony.  Larson v. Candlish, 144 Vt. 499, 502, 480 A.2d 417, 418 (1984).
   
       ¶  13.  First, the trial court held that Dr. Johansson's affidavit
  did not enunciate a standard of care.  In his affidavit, however, Dr.
  Johansson opined that "among other things, Dr. Esparza failed to exercise
  the appropriate degree of care during that injection by inserting the
  needle to the point it made contact with the bone of the arm and injured
  the radial nerve."  One can then reasonably infer that, in plaintiffs'
  view, the requisite standard of care is to not insert the needle so deeply
  that it contacts the bone and injures the radial nerve.  Drawing such an
  inference in plaintiffs' favor, as we must at the summary judgment stage,
  we conclude that the affidavit satisfied plaintiffs' burden under 12 V.S.A.
  § 1908(1), although we agree that the better practice is for the affiant to
  expressly articulate the standard of care. 

       ¶  14.  The trial court next concluded that Dr. Johansson's affidavit
  failed to explain "how Dr. Esparza's actions actually caused plaintiff's
  injuries."  The court summarized its reasoning as follows:

    The problem with Dr. Johansson['s] statements is that they lack
    any such factual evidence or reasoning.  To say Dr. Esparza failed
    to exercise reasonable care because the needle hit the bone and
    injured the radial nerve begs the question.  That is, it assumes
    that Dr. Esparza's physical injection hit the nerve.  As hospital
    points out, that is not necessarily the case.  A hematoma could
    have caused the injury or the medication itself may have caused
    it.  

       ¶  15.  By weighing Dr. Johansson's theory against other possible
  causes of Mr. Provost's injuries, the trial court failed to give the
  non-moving party the benefit of all reasonable doubts and inferences, and
  instead implicitly weighed the merits of plaintiffs' case.  Summary
  judgment is improper where the evidence is subject to conflicting
  interpretations, regardless of a judge's perceptions of the comparative
  plausibility of facts offered by either party or the likelihood that a
  party might prevail at trial.  In other words, summary judgment is not
  warranted simply because the movant offers facts that " 'appear more
  plausible than those tendered in opposition, or because it appears that the
  adversary is unlikely to prevail at trial.' "  Braun v. Humiston, 140 Vt.
  302, 308, 437 A.2d 1388, 1390 (1981) (quoting 10 C. Wright & A. Miller,
  Federal Practice and Procedure § 2725, at 513 (1973)), overruled on other
  grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983). 
  Further, "it is not for the trial judge to adjudicate who is more credible,
  plaintiff or defendants and their affiants, in the context of a motion for
  summary judgment."  Pierce v. Riggs, 149 Vt. 136, 139, 540 A.2d 655, 657
  (1987).  Accordingly, the fact that the court may have believed Dr.
  Johansson's explanation of the cause of Mr. Provost's injuries was as
  plausible as, or less plausible than, other possible explanations is not a
  proper basis for a summary judgment.  Indeed, by juxtaposing plaintiffs'
  explanation for Mr. Provost's injuries against other possibilities, the
  court's order suggests that a genuine, triable issue exists. 
   
       ¶  16.  We recognize that a party opposing summary judgment cannot
  rely on "bare allegations" to demonstrate disputed facts, and a party may
  not avoid summary judgment "any time [it] secures an expert to support its
  claim."  Morais v. Yee, 162 Vt. 366, 372, 648 A.2d 405, 409 (1994).  Dr.
  Johansson's expert affidavit does more than make bare allegations.  It lays
  out a theory of the case to be developed at trial-namely, that Dr. Esparza
  breached the standard of care by inserting the needle too deeply into Mr.
  Provost's arm, and that doing so caused his injury.  Optimally, an expert
  affidavit submitted in opposition to a summary judgment motion will lay out
  in greater detail the reasoning behind the expert's conclusions than did
  the affidavit at issue here.  But Dr. Johansson's affidavit does more than
  "merely make[] it possible for the fact in issue to be as alleged" or raise
  "a mere conjecture, surmise, or suspicion."  Peterson v. Post, 119 Vt. 445,
  451, 128 A.2d 668, 671 (1957). (FN1)

       ¶  17.  In conclusion, Dr. Johansson's affidavit articulates, albeit
  sparsely, a theory of plaintiffs' medical malpractice case sufficient to
  defeat summary judgment.  And although there may exist competing
  explanations for Mr. Provost's injury, the comparative plausibility of the
  parties' theories will be determined at trial.  "[B]ecause of its severe
  consequences, summary judgment should be granted cautiously so that no one
  will be improperly deprived of a trial of disputed factual issues." 
  Margison v. Spriggs, 146 Vt. 116, 118, 499 A.2d 756, 758 (1985) (citation
  omitted).  Here, plaintiffs did enough to raise a disputed factual issue. 
  Therefore, the trial court should not have granted summary judgment. 

       Reversed and remanded for further proceedings consistent with this
  opinion.



                                        BY THE COURT:



                                        _______________________________________
                                        Paul L. Reiber, Chief Justice

                                        _______________________________________
                                        John A. Dooley, Associate Justice
     
                                        _______________________________________
                                        Denise R. Johnson, Associate Justice

                                        _______________________________________
                                        Marilyn S. Skoglund, Associate Justice

                                        _______________________________________
                                        Geoffrey W. Crawford, Superior Judge, 
                                        Specially Assigned


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                                  Footnotes


FN1.  The trial court relied on the above-quoted language from Peterson in
  holding that the affidavit's conclusion "does not stand up to even a
  lenient scrutiny of proof."  Peterson held that mere surmise or conjecture
  "is an insufficient foundation for a verdict" in a very different
  procedural context-review of a motion for directed verdict at the close of
  all evidence in the case. 119 Vt. at 451, 128 A.2d  at 671 (emphasis added).