2012 VT 86


Taylor v. Fletcher Allen Health
Care (2011-317)
 
2012 VT 86
 
[Filed 19-Oct-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 86

 

No. 2011-317

 

Sally J. Taylor


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Fletcher Allen Health Care


April Term, 2012


 


 


 


 

Helen
M. Toor, J.
 
Sally J. Taylor, Pro Se, Colchester,
Plaintiff-Appellant.
 
Angela R. Clark and Nicole Andreson
of Dinse, Knapp & McAndrew,
P.C., Burlington, for
  Defendant-Appellee
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.   Plaintiff Sally J. Taylor sued Fletcher
Allen Health Care (FAHC) for medical negligence and negligent infliction of
emotional distress, in connection with her medical care following a surgery
performed on her lumbar spine.  After plaintiff failed to disclose any
expert witness in response to discovery requests, FAHC moved for summary
judgment, arguing that plaintiff’s claims failed as a matter of law without an
expert witness.  The trial court granted FAHC’s motion.  We agree
with the trial court that this case is sufficiently complex that plaintiff
cannot prove her claims without expert testimony.  Accordingly, we affirm.
¶ 2.            
Plaintiff presented to FAHC with “severe pain [and] severe disability”
in her lower back and underwent surgery in which doctors fused part of her
lower spine with internal hardware.  During the first few days following
the surgery, plaintiff made reasonable progress toward recovery.  On the
third day, however, a nurse was assisting plaintiff in moving to the bathroom
when plaintiff alleges that the nurse “withdrew support and assistance . . . unexpectedly
and without warning and caused [p]laintiff to fall
violently on to the toilet.”  Following this incident, plaintiff
experienced severe pain at the surgical site, and claimed that FAHC providers
did not adequately address her pain complaints. 
¶ 3.            
Due to her behavior at this time, plaintiff was referred for a psychiatric
consultation, in which the psychiatrist noted that plaintiff complained of poor
sleep and back pain.  Her surgeon noted that plaintiff’s alignment
appeared to have changed, and suspected that one of the screws in her spine had
perhaps loosened or even been pulled out.  Accordingly, plaintiff
underwent a second surgery, and the surgeon discovered that the hardware in her
spine had loosened. 
¶ 4.            
Following the successful second surgery, plaintiff filed suit.
 Unable to find an attorney to represent her, plaintiff proceeded with the
suit pro se. In her complaint, plaintiff claimed that FAHC had been negligent
in allowing her to fall onto the toilet, for “failing to recognize and diagnose
the failure of the hardware” that had been installed during the first surgery,
and for its treatment of plaintiff “in connection with her pain complaints
following the fall.”  She also claimed that FAHC’s negligence caused her
to suffer severe emotional distress. FAHC answered the complaint and, in its discovery
request, asked plaintiff to identify her expert witnesses.  Plaintiff
never responded.  Following attempts by FAHC and the court to craft a
discovery schedule, plaintiff eventually filed a proposed discovery schedule
with May 1, 2011 as her deadline for expert disclosure.  The court
approved this discovery schedule. 
¶ 5.            
Plaintiff did not comply with her May 1 deadline for expert
disclosure.  So, nearly eight months after suit was filed, FAHC moved for
summary judgment, arguing that without expert testimony, plaintiff’s claims
failed as a matter of law.  Plaintiff’s opposition to the motion
argued that she did not need expert testimony because her case fell within the
“common sense exception rule.”  In essence, plaintiff argued that the
alleged breach of medical care was so obvious that it may be understood by a
layperson without the aid of expert testimony.  She argued that
“hiding and omitting major X-Ray results is all so straight forward and obvious
that it may be understood by a lay person such as myself”; that “[t]o the lay person . . . there appears to be an
ongoing cover up after the bathroom fall”; and that her claim of negligent
infliction of emotional distress “is apparent even to a lay person, such as
myself.  I repeatedly beg, cry and plea for proper medical care as I
state, ‘there is something wrong with my spine after the fall.’ ” 
¶ 6.            
In describing the events leading up to her fall onto the toilet,
plaintiff wrote:
 
I was taught a well place procedure technique and drill to use during bathroom
toilet usage.  I was told the importance of the nurse assisting me, and
this was physical manual labor by the nurse.  The nurse was to hold, lift
and support me upon and off the toilet.  The head nurse spent a lot of
time with me and the drill technique because of its great importance to
safety. . . .  Then another nurse came on duty and she
neglected to use the procedure and because of her neglect I had a hard
fall.  The hospital had specific nursing management standards, guidelines
and protocols which failed to be followed.  The responsible nurse deviated
from the accepted standard of nursing care. 
 
In this description, plaintiff
ascribed fault and cause to the hearsay statements of another nurse but offered
no competent evidence sufficient to meet the requirements of expert disclosure
or Vermont Rule of Civil Procedure 56.  She further stated that “the gait
belt device was not used during my hospital stay,” suggesting that the “head
nurse” did not use the device either.  The trial court disagreed with
plaintiff’s position regarding the common sense exception rule, and granted
FAHC’s motion for summary judgment, ruling that “[w]ithout
a medical expert, plaintiff cannot prove her case.  The time for disclosure
of experts having passed, [FAHC] is entitled to summary judgment.”  
¶ 7.            
On appeal, plaintiff raises essentially the same argument as in her
opposition to the motion for summary judgment—that she should be permitted to
proceed without an expert witness because her claims are so simple that they
are easily understood by laypeople.  She reasons that this case is a
matter of common knowledge because anyone can understand her fall caused her
back surgery failure.  She also claimed some x-ray results were withheld
from her and this intentional concealment caused her distress.
¶ 8.            
We review summary judgment rulings de novo, using the same standard as
the trial court.  Gallipo v. City of
Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. 
Summary judgment is appropriate if, after reviewing the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any,” the movant “show[s] that
there is no genuine issue as to any material fact” and the movant
“is entitled to judgment as a matter of law.”   Id.; V.R.C.P.
56(c)(3).  
¶ 9.            
We start by examining the “common sense exception” (also known as the
“common knowledge rule”) presented by plaintiff.  While we have never
formulated a rule with either of these exact names, other courts and academics
have done so.  See generally J. King, The Common Knowledge Exception to
the Expert Testimony Requirement for Establishing the Standard of Care in
Medical Malpractice, 59 Ala. L. Rev. 51 (2007) (proposing reforms to the
common knowledge rule).  The reason for the general rule requiring expert
testimony is that “[t]he human body and its treatment
are extraordinarily complex subjects requiring a level of education, training
and skill not generally within our common understanding.”  Noyes v. Gagnon, No. 2007-311, 2008 WL 2811231, at *2 (Vt.
Feb. 6, 2008) (unpub. mem.),
http://www.vermontjudiciary.org/d-upeo/upeo.aspx.  We have joined
other jurisdictions by holding that while medical malpractice plaintiffs must
generally use an expert witness to satisfy their burdens of proving the
elements of medical negligence, an exception to the “general rule exists in
cases where the violation of the standard of medical care is so apparent to be
comprehensible to the lay trier of fact.”  Senesac
v. Assocs. in Obstetrics & Gynecology, 141 Vt. 310, 313, 449 A.2d 900,
902 (1982) (quotation omitted).  
¶ 10.         The
facts of the present case and the claims of fault and causation are
sufficiently complex as to be beyond the scope of common knowledge to a
layperson.  Plaintiff’s first claim of medical negligence is that the
nurse should not have let her fall onto the toilet.  Plaintiff
argued in her opposition to FAHC’s motion for summary judgment that the
“acceptable proper standard of care that is taught in Vermont nursing schools
in assisting a patient who is recovering from spinal fusion surgery to the
bathroom involves the use of the gait belt device.  This gait belt device
was not used during [her] hospital stay.”  She included with her brief
excerpts from what appear to be various nursing textbooks that explain how a
nurse should use a gait belt or transfer belt to assist a patient in
walking.  The texts provide detailed instructions on how the belt attaches
to a patient, and what to do if the patient falls. The court, presented with
her unsupported statement that the proper standard of care required use of a
gait belt, concluded that expert testimony was required to prove that theory.[1]
¶ 11.         However,
as plaintiff claims, neither the procedure taught by the head nurse nor the
gait belt was used by the second nurse during the trip to bathroom in which she
fell.  Reading further, the nursing text excerpt on which plaintiff relies states, “Several methods are used for assisting a
client with ambulation,” of which a gait belt is one such method.  Whether
a gait belt should have been used in this case or whether the use of a gait
belt could have prevented her drop onto the toilet is beyond the ken of a
layperson.  There are countless variables that could explain the lack of a
gait belt, and only testimony from an expert familiar with general nursing practices
and the details of plaintiff’s medical record would enable a jury to make an
informed decision as to whether FAHC breached its duty of care by not using a
gait belt in this case.  We agree that any layperson could understand that
a tumble onto a toilet seat could cause pain, and that an expert witness would
not generally be required for a simple case in which a nurse or other health
care attendant is alleged to have negligently dropped a patient.  Our
holding here is therefore limited to the unique facts of this case given the
specificity of plaintiff’s argument—that the nurse failed to use a specific
tool and technique and that the drop was the cause of the need for the second
surgery.  Those claims are outside of the experience of typical lay
person’s understanding.  Even if plaintiff could establish that the nurse
negligently dropped her without relying on expert testimony, she could not,
without an expert, argue to the jury that the hardware loosened as a result of
the fall, or that her ongoing back pain and the need for a second surgery or
any of the subsequent medical treatments were the result of the fall.
¶ 12.         Plaintiff
next makes two related complaints that FAHC was negligent for “failing to
recognize and diagnose the failure of the hardware installed” during the first
surgery and in “its treatment of [p]laintiff in
connection with her pain complaints following [her] fall.”  She
claimed that a “CT examination revealed displaced fractures of the transverse
process on [her] L3, L4 and L5 vertebrae which had not been present prior to
[her] fall.”  Implicit in these allegations is a correlation
between her fall and the fact that a second surgery revealed a hardware
failure—specifically, a loosened screw.  Indeed, she alleges that FAHC
ignored her complaints and attributed her pain to a “myriad of causes unrelated
to her fall.”  In a claim of medical negligence, a “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.”  Jones v. Block,
171 Vt. 569, 569, 762 A.2d 846, 848 (2000) (mem.). 
Proving proximate causation in medical negligence cases is notoriously
difficult. See Bender v. Dingwerth, 425 F.2d 378,
381 (5th Cir. 1970) (“The plaintiff’s difficulty in [proving medical
negligence] cases . . .
is . . . the failure to prove that there was any causal
relationship at all between the doctor’s act and the ensuing injury.”). 
It is precisely for this reason that we generally require expert
testimony.  See Clayton v. Unsworth, 2010 VT 84,
¶ 17, 188 Vt. 432, 8 A.3d 1066 (mem.)
(expert testimony required to show conduct was
proximate cause of harm in professional malpractice case).   
¶ 13.         In
this case, plaintiff’s medical history prior to the surgeries currently at
issue sheds some light on why she needs expert testimony to prove
causation.  She has degenerative lumbar scoliosis and had had at least two
other surgeries before the two at issue here.  While the medical
records following her second surgery in this case show that there had, indeed,
been a hardware failure, the reports do not explain how or why this failure
occurred.  While it is possible that the failure of the apparatus was a
direct and proximate result of plaintiff’s fall, there is no way for a jury to
intelligently evaluate the evidence without expert testimony.  “Although
there is an understandable tendency to conclude that an undesired result
following a surgical procedure necessarily implies negligent conduct,
that is not the reality or the law.”  Noyes,
2008 WL 2811231, at *2.  As explained above, plaintiff cannot prove
medical negligence, or the causal link to her injuries, without expert
testimony.  Accordingly, plaintiff cannot make a prima facie case for
medical negligence, and FAHC is entitled to summary judgment as a matter of
law.
¶ 14.         In
the interest of addressing all of plaintiff’s claims, we note that she
repeatedly states in her appellate brief that FAHC withheld crucial medical
information in an attempt to cover up her fall.  She argues that FAHC did
not disclose to her the true findings of CT scans and x-rays.  She
presents these claims as part of her case for medical negligence. 
However, nothing in her complaint mentioned an attempt to cover up the accident
or withhold information.  Normally issues not raised at the trial court
cannot be raised on appeal.  State v. Rideout, 2007 VT 59A, ¶ 19, 182 Vt. 113, 933 A.2d 706
(“As a general rule, we will not consider issues that were not raised with
specificity and clarity at trial.”).  Even giving plaintiff the
leeway that we generally accord to pro se litigants,  see Zorn v. Smith,
2011 VT 10, ¶ 22, 189 Vt. 219, 19 A.3d 112, plaintiff’s claims for medical
negligence fail.  The alleged withholding of information and cover up are
but one brick in the wall that plaintiff must build to prove negligence. 
However, her claim of medical negligence ultimately fails because she could not
provide an expert to explain causation.  Any alleged cover up would not
change this fact.
¶ 15.         Finally,
plaintiff’s second claim in her complaint was for negligent infliction of
emotional distress.  She asserted that FAHC’s medical negligence caused
her to suffer severe emotional distress.  However, a claim of negligent
infliction of emotional distress is premised on a finding of negligence. 
See Lenoci v. Leonard, 2011 VT 47, ¶ 9,
189 Vt. 641, 21 A.3d 694 (mem.)
(“[T]o maintain either her wrongful death or negligent-infliction-of-emotional-distress claim—both of which
sound in negligence—plaintiff must establish [a duty of care].”).  As
explained above, plaintiff cannot make a prima facie case for negligence; her
claim for negligent infliction of emotional distress necessarily fails too.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 16.         DOOLEY,
J., concurring and dissenting.   I concur in the dismissal of
plaintiff’s claims that FAHC was negligent in its failure to recognize and
diagnose the problems with the hardware and in its treatment of the pain
complaints as well as her claim for negligent
infliction of emotional distress.  I do not concur with the dismissal of
the claim that FAHC was negligent when plaintiff fell while attended by a
nurse.  The majority transforms a routine hospital-fall case into a
complex medical-malpractice action requiring expert evidence on the strength of
a pro se litigant’s passing reference to a “gait belt.”  The essential
issue, however, is simply whether plaintiff fell because she was inadequately
attended to by a hospital nurse.  The case requires no sophisticated
technical or medical judgments beyond the experience of the ordinary
layperson.  I therefore respectfully dissent.
¶ 17.         Plaintiff’s
complaint alleged that, about a week after her spinal surgery, she “was being
assisted to the bathroom by a nurse . . . when said nurse withdrew support and
assistance to Plaintiff unexpectedly and without warning and caused Plaintiff
to fall violently on the toilet.”  The fall allegedly caused plaintiff
severe pain and emotional distress, further damaged her spine, loosened the
screw from the original surgery, and required a second surgery to correct the
damage.  The hospital moved for summary judgment, asserting—among other
arguments—that plaintiff had failed to present expert evidence establishing
“the proper standard of care” for assisting a recovering surgical patient to
the bathroom.  Plaintiff filed a pro se opposition, claiming that the case
fell within “the common sense exception” to the general rule requiring expert
evidence in medical malpractice actions.  The trial court granted the
hospital’s motion in a two-line entry order stating that plaintiff could not
prove her case “[w]ithout a medical expert.” 
¶ 18.         In
affirming the judgment, the majority acknowledges the “ ‘common
sense exception’ ” to the general rule that medical malpractice plaintiffs
must use an expert witness to prove medical negligence.  Ante, ¶ 9.  While not cited by the majority,
there is—in fact—ample authority to support the conclusion that a case where a
nurse drops a patient fits into this exception.  See, e.g., Massey v.
Mercy Med. Ctr. Redding, 103 Cal. Rptr. 3d 209,
215 (Ct. App. 2009) (holding that, where post-operative patient fell while
under nurse’s supervision, expert testimony on standard of care was not
required since “common knowledge and experience can be used to determine
whether the patient fell because she . . . was insufficiently attended to by
medical personnel”); Davis v. Montgomery Cnty. Mem’l Hosp., No. 05-0865, 2006 WL 1896217, at *1, *4
(Iowa Ct. App. July 12, 2006) (rejecting hospital’s claim that “the process of
transferring a skilled-care patient from a bed to the bathroom required expert
testimony on the standard of care involved” because it involved “nonmedical and
routine” procedure within common knowledge of jurors); Dimora
v. Cleveland Clinic Found., 683 N.E.2d 1175, 1180 (Ohio Ct. App. 1996)
(holding that patient who fell while being assisted by nurse fit within
“common-knowledge exception” and patient was not required to produce expert
testimony to establish professional standard of care); McGraw v. St.
Joseph’s Hosp., 488 S.E.2d 389, 395-96 (W. Va. 1997) (holding that patient
who fell while nurses were attempting to assist him back to bed raised issue
involving “routine hospital care” that did not require expert medical evidence
to establish standard of care); Cramer v. Theda Clark Mem’l
Hosp., 172 N.W.2d 427, 428-29 (Wis. 1969) (holding that patient’s fall
involved “custodial or routine hospital care” that was not so “complex or
technical” as to require expert testimony on standard of care).  This Court
has similarly recognized a “common knowledge” exception to the normal
expert-testimony requirement in malpractice cases involving “routine care,
ministerial and not technical” where, for example, a hospital patient whose call-light went unanswered fell while trying to go to
the bathroom on her own.  Newhall v. Cent.
Vt. Hosp., Inc., 133 Vt. 572, 573-74, 349 A.2d 890, 892 (1975).
¶ 19.         The
majority concludes, however, that the instant case is distinguishable because
plaintiff, in her pro se opposition to the motion for
summary judgment, claimed that the proper standard of care for assisting
patients recovering from spinal surgery was to use a “gait belt” device, which
was not done in her case, and to use a procedure specified by a head nurse, who
had assisted her prior to the incident.  She also attached a page
containing two short  paragraphs purporting to be
from nursing manuals that refer to the use of a “gait belt” and a “transfer
belt” for assisting a patient with ambulation.  From this the majority
concludes that the case is too “complex” for a layperson to judge, as only an
expert would enable a jury to properly determine whether the nurse breached her
duty of care by not using the device.  Ante, ¶¶ 10-11.  
It adds that plaintiff cannot rely on the hearsay statements of the first nurse
to supply the expert evidence.
¶ 20.         I
doubt that the reference to the gait belt turns this case into one of complex,
multivariate analysis that only an expert can perform.  After all, a gait
or transfer belt is a simple strap that is placed around the waist to help move
a person from one place to another.  It can be purchased inexpensively in
almost any well-stocked retail pharmacy or online for home use.  Nurses
are undoubtedly better trained in their use than laypersons, and nursing
manuals undoubtedly recommend them.  But this does not make their use so
complex to require an expert witness.
¶ 21.         My
main point here, however, is different.  Under the majority’s analysis,
plaintiff’s claim would survive if she never mentioned the gait belt or the
head nurse, but fails because she did.  I disagree.  While she
suggested that the use of the gait belt may have prevented the fall, and she
would not have fallen if the procedure developed by the first nurse had been
followed, her claim remained that the second nurse was negligent in allowing
the fall to occur.  As the cases from other jurisdictions hold, this is a
claim that can and should be resolved by the jury.[2] 
¶ 22.         I
agree with the majority that expert evidence was required to determine whether
plaintiff’s fall caused further damage to her spine or loosened the surgically
placed screw, as she alleged.   Plaintiff also sued, however, for the
severe pain and emotional distress that resulted from the fall,
and this did not require expert evidence.  See Human Rights Comm’n v. LaBrie, Inc., 164
Vt. 237, 247-49, 668 A.2d 659, 667-68 (1995) (noting that expert medical
testimony on causation has not been required to support a finding that employee
suffered disabling pain from workplace injury, and holding similarly that “[n]o
expert testimony on causation was necessary” to support award for emotional
distress from discrimination); see also Williams v. Lucy Webb Hayes Nat’l
Training Sch., 924 A.2d 1000, 1003 (D.C. 2007) (holding that plaintiff was
not required to present expert medical testimony that her negligent transfer
from hospital gurney after surgery caused intense pain during the period that
followed, since the issue was not a “complex” one and “ordinary human
knowledge” would permit jury to find that plaintiff would not have suffered
pain except for the negligent transfer).  
¶ 23.         Accordingly,
I would reverse the judgment and remand for further proceedings.
¶ 24.         I am
authorized to state that Justice Robinson joins this concurrence and dissent.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
The failure to use the gait belt formed the basis of her claim that a lay
person could understand that it was negligence not to use the device.  It
was not a mere “passing reference to a ‘gait belt’ ” as suggested by the
dissent.  Post, ¶ 16.  And,
notwithstanding the fact that the dissent seems to know quite a bit about a
gait belt, not everyone shares this knowledge.


[2] 
Plaintiff neither identified nor relied on any medical experts, apart from the
two brief statements in her opposition to the motion for summary judgment that
purported to be excerpts from nursing manuals.  Accordingly, the trial
court would be fully entitled to exclude such evidence in the event that it was
offered at trial.  



