De Adder v. Intermountain Healthcare, Inc.

2013 UT App 173, 308 P.3d 543, 738 Utah Adv. Rep. 5, 2013 WL 3475379, 2013 Utah App. LEXIS 170
CourtCourt of Appeals of Utah
DecidedJuly 11, 2013
Docket20110709-CA
StatusPublished
Cited by4 cases

This text of 2013 UT App 173 (De Adder v. Intermountain Healthcare, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Adder v. Intermountain Healthcare, Inc., 2013 UT App 173, 308 P.3d 543, 738 Utah Adv. Rep. 5, 2013 WL 3475379, 2013 Utah App. LEXIS 170 (Utah Ct. App. 2013).

Opinion

ROTH, Judge:

T1 Donalda De Adder appeals from the grant of summary judgment in favor of In-termountain Healthcare, Inc. (IHC). We affirm.

BACKGROUND

12 De Adder underwent total right knee replacement in March 2004 at an IHC facility. Prior to surgery and for two days post-operation, De Adder did not have any symptoms of damage to her right peroneal nerve or of palsy, also referred to as "drop foot" or "foot drop," in her right foot. On the third day following surgery, however, De Adder began complaining of pain in her right lower extremity. De Adder's orthopedic surgeon, Dr. Richard Taylor Jackson, diagnosed permanent damage to the right peroneal nerve and palsy to her right foot. 1 Dr. Jackson concluded that the damage resulted from the use of a continuous passive motion (CPM) *546 device 2 that he had ordered as therapy for De Adder's knee following surgery. De Adder sued IHC, alleging that its nurses were negligent in monitoring, managing, and maintaining the CPM device. De Adder designated Dr. Jackson as her only expert witness regarding the post-operative standard of care required of nurses attending a patient receiving CPM therapy following total knee replacement surgery, the breach of that standard by IHC's nurses, and how the breach caused De Adder's injuries.

13 IHC moved for summary judgment. In its supporting memorandum, IHC argued that expert testimony was essential to a negligence claim of this sort and that De Adder had "failed to produce expert testimony that [IHC] breached the standard of care." See generally Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076 ("To prove medical malpractice, a plaintiff must establish (1) the standard of care by which the [health care provider's] conduct is to be measured, (2) breach of that standard by the [provider], (8) injury that was proximately caused by the [provider's] negligence, and (4) damages." (citation and internal quotation marks omitted)). Specifically, IHC contended that Dr. Jackson could not provide the required expert testimony because he does not practice in the same specialty as the nurses and his deposition testimony did not otherwise establish a sufficient foundation to admit his testimony about the standard of care applicable to the nursing staff. See id. ("[The plaintiff is required to prove the standard of care through an expert witness who is qualified to testify about the standard.").

T4 De Adder opposed IHC's summary judgment motion with a Verified Expert Report from Dr. Jackson, which she attached to her response. Dr. Jackson stated, "I am familiar with the standard of care required of surgeons, assistants, post surgery nursing and physical therapy care required [to] perform and manage a successful result from [Joint] surgeries." According to Dr. Jackson, this standard of care "requires [attendant hospital personnel] to tim[elly observe and detect malfunctioning, misplacement or any failure of the CPM machine" through "diligent monitoring of complaints of pain, discomfort and unusual symptoms." Dr. Jackson expressed his opinion, "[tlo a reasonable degree of medical certainty," that De Adder's "injury occurred as a result of the failure of attendant hospital personnel to properly monitor the post operative condition of [her] right lower extremity" because De Adder's "injury resulted from prolonged pressure of the peroneal nerve by an element of the CPM machine." Dr. Jackson further opined that De Adder's injury could have been prevented "had attendant hospital personnel acted within the standard of care regarding monitoring the use of the CPM machine, both function and timing."

T5 At the hearing on the summary judgment motion, the district court admitted into evidence all of Dr. Jackson's affidavit statements pertaining to the standard of care and his opinions regarding the cause of De Adder's injuries. The court also received, upon the parties' stipulation, a copy of Dr. Jackson's entire deposition. Finally, the court allowed De Adder to supplement the record with Dr. Jackson's post-operative order for CPM therapy.

T6 In a subsequent written order, the district court granted summary judgment in favor of IHC on the basis that Dr. Jackson was "not qualified to testify as an expert against [IHC] because he is not knowledgeable about the standard of care" that applies to the nurses who cared for her. The court explained that although a doctor might be competent to testify about the standard of care applicable to a nurse under certain circumstances, Dr. Jackson could not do so here because his verified expert report and deposition testimony failed to establish either that the standard of care for a nurse was the *547 same as for an orthopedic surgeon or that Dr. Jackson otherwise had substantial knowledge of the standard of care required of a nurse providing CPM therapy 3 De Adder now appeals.

ISSUES AND STANDARDS OF REVIEW

17 De Adder contends that the district court abused its discretion in determining that Dr. Jackson's testimony was inadmissible to establish the nursing standard of care, thereby rendering the grant of summary judgment inappropriate. Specifically, De Adder asserts that "the trial court, under the guise of a summary judgment proceeding, conduct[ed] a factual determination as to the adequacy of Dr. Jackson's credentials to testify as to the standard of care applicable to [the] nurse." She claims the court did this by "initiat[ing] its own [Utah] Rule [of Evidence] 702 examination" in the absence of a motion and briefing on the issue and without conducting a formal hearing.

18 "We first address the court's rulings related to the expert testimony and then, given our conclusions on those issues, review the trial court's grant of summary judgment." Boice ex rel. Boice v. Marble, 1999 UT 71, ¶ 6, 982 P.2d 565. "The trial court has wide discretion in determining the admissibility of expert testimony.... Accordingly, we disturb the district court's decision [not to admit] expert testimony only when it exceeds the limits of reasonability." Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242 P.3d 762 (citations and internal quotation marks omitted). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). We therefore review a court's summary judgment ruling for correctness. State ex rel. School & Inst. Trust Land Admin. v. Mathis, 2009 UT 85, ¶ 10, 223 P.3d 1119.

ANALYSIS

I. The District Court's Rulings on the Admissibility of Dr. Jackson's Testimony

19 IHC's motion for summary judgment challenged Dr. Jackson's qualifications to present expert testimony regarding the standard of care for nurses using the CPM device on the basis that Dr. Jackson is an orthopedic surgeon with "no training or experience as a nurse" or any experience with operating or monitoring the CPM device. The district court agreed with IHC and excluded Dr. Jackson's testimony. Ordinarily, because of the district court's discretion in this area, we afford the court considerable latitude in determining the admissibility of expert testimony. Eskelson, 2010 UT 59, ¶ 5, 242 P.3d 762.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 UT App 173, 308 P.3d 543, 738 Utah Adv. Rep. 5, 2013 WL 3475379, 2013 Utah App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-adder-v-intermountain-healthcare-inc-utahctapp-2013.