Benson v. Tkach

2001 OK CIV APP 100, 30 P.3d 402, 72 O.B.A.J. 2443, 2001 Okla. Civ. App. LEXIS 69, 2001 WL 884802
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 20, 2001
Docket94,640
StatusPublished
Cited by7 cases

This text of 2001 OK CIV APP 100 (Benson v. Tkach) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benson v. Tkach, 2001 OK CIV APP 100, 30 P.3d 402, 72 O.B.A.J. 2443, 2001 Okla. Civ. App. LEXIS 69, 2001 WL 884802 (Okla. Ct. App. 2001).

Opinion

TAYLOR, Judge:

T1 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 Thach, Bone and Joint Hospital, Healthsouth Reba-bilitation Hospital, and MeBride Clinic, Inc. Based on the record and applicable law, we reverse and remand.

12 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.

13 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.

1 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 Ran-cho, 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 hos *404 pitals 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.

T6 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. Thach, 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 MeBride 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.

T7 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.

T8 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.

19 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 (8) 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.

*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.

1 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. at ¶13, 838 P.2d at 550.

113 Similarly, Plaintiff has failed to produce any evidence showing the required standard of care.

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Bluebook (online)
2001 OK CIV APP 100, 30 P.3d 402, 72 O.B.A.J. 2443, 2001 Okla. Civ. App. LEXIS 69, 2001 WL 884802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-tkach-oklacivapp-2001.