Opinion
No. COA12–814.
2013-05-21
Nancy L.C. WILLIAMS, Plaintiff, v. David H. HUMPHREYS, MD; Plastic Surgery Center, LLC; James Brown, MD; and Asheville Anesthesia Associates, PA, Defendants.
McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for plaintiff-appellant. Shumaker, Loop & Kendrick, LLP, by Scott A. Hefner, Scott M. Stevenson, and Karen H. Stiles, for defendants-appellees David H. Humphreys, M.D. and Plastic Surgery Center, LLC.
Appeal by plaintiff from orders entered 12 January 2012 by Judge Sharon Tracey Barrett in Buncombe County Superior Court. Heard in the Court of Appeals 28 November 2012. McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for plaintiff-appellant. Shumaker, Loop & Kendrick, LLP, by Scott A. Hefner, Scott M. Stevenson, and Karen H. Stiles, for defendants-appellees David H. Humphreys, M.D. and Plastic Surgery Center, LLC.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Dale A. Curriden, for defendants-appellees James Brown, M.D. and Asheville Anesthesia Associates, P.A.
GEER, Judge.
Plaintiff Nancy L.C. Williams appeals from the trial court's orders granting summary judgment to defendants David H. Humphreys, M .D., Plastic Surgery Center, LLC, James Brown, M.D., and Asheville Anesthesia Associates, P.A. The sole issue on summary judgment was the sufficiency of Ms. Williams' evidence regarding causation. Because Ms. Williams presented expert testimony that the probable cause of her injury was the malpositioning of Ms. Williams during surgery, she presented sufficient evidence to give rise to a genuine issue of fact regarding causation. Since defendants have argued no other basis for summary judgment, we hold that the trial court erred in granting summary judgment to defendants.
Facts
On 21 April 2006, Ms. Williams underwent surgery to remove redundant skin tissue following significant weight loss, including a torsoplasty and bilateral brachioplasty. Dr. Humphreys of the Plastic Surgery Center performed the surgery, while Dr. Brown of Asheville Anesthesia Associates was the anesthesiologist. Dr. Brown was assisted by a certified registered nurse anesthetist (“CRNA”).
Ms. Williams' surgery lasted six hours and 20 minutes. After Ms. Williams was placed under anesthesia, she was positioned on her side with one arm above her head and the other arm down. When the surgery was completed on one side, Ms. Williams was repositioned so that the other arm was above her head. The individual defendants could not agree regarding which side Dr. Humphreys operated on first. Dr. Brown's postoperative note indicated that Ms. Williams was placed on her left side first, while Dr. Humphreys' surgical note indicated that she was placed on her right side first.
Dr. Brown was present at the start of the procedure and supervised Ms. Williams' first positioning. After Ms. Williams was placed under anesthesia and initially positioned, Dr. Brown left the operating room and walked five minutes away to another facility to supervise other cases. Dr. Humphreys was not present when Ms. Williams was first positioned for surgery.
Once Dr. Humphreys completed the surgery on the first side, Ms. Williams needed to be repositioned. Dr. Brown was not present for the repositioning. Only the CRNA was there, and Dr. Humphreys did not participate in the repositioning. Dr. Brown subsequently returned, after the repositioning, to relieve the CRNA, and he was present at the completion of the surgery. The documentation by the surgical and anesthesia staff did not specifically identify what was done during the positioning of Ms. Williams.
When Ms. Williams awoke after the surgery, she was unable to move her arms. Examination by a neurologist following surgery indicated that Ms. Williams had experienced damage to her bilateral brachial plexus, a superhighway of nerves that forms and splits to form peripheral nerves. Upon examination by Dr. John Conomy more than one year after surgery, Ms. Williams was still experiencing mild dysfunction in the distribution of structures in her right brachial plexus and very severe dysfunction on her left side, effectively giving her the functional abilities of one who has lost the use of her non-dominant arm.
Ms. Williams filed suit against defendants, alleging that both Dr. Humphreys and Dr. Brown as well as their respective practices had breached the standard of care by failing to properly position Ms. Williams while she was under general anesthesia. Defendants filed answers denying the material allegations of the complaint and, subsequently, filed motions for summary judgment. On 12 January 2012, the trial court entered an order granting summary judgment to Dr. Humphreys and Plastic Surgery Center and a separate order granting summary judgment to Dr. Brown and Asheville Anesthesia. Ms. Williams timely appealed both orders to this Court.
Discussion
Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... any party is entitled to a judgment as a matter of law.” N.C.R. Civ. P. 56(c). This Court reviews a trial court's grant of summary judgment de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). The burden is on the movant to establish that there are no triable issues of fact. Fairview Developers, Inc. v. Miller, 187 N.C.App. 168, 170, 652 S.E.2d 365, 367 (2007). On appeal, this Court views the record in the light most favorable to the non-moving party, drawing all reasonable inferences in the non-movant's favor. Gaskill v. Jennette Enters., Inc., 147 N.C.App. 138, 140, 554 S.E.2d 10, 12 (2001).
The elements of a medical malpractice claim are: “ ‘(1) the standard of care, (2) breach of the standard of care, (3) proximate causation, and (4) damages.’ “ Perry v. Presbyterian Hosp., 209 N.C.App. 96, 100, 703 S.E.2d 850, 853 (quoting Turner v. Duke Univ., 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989)), disc. review denied,365 N.C. 188, 707 S.E.2d 243 (2011). In this case, defendants have argued that summary judgment was appropriate only on the grounds that Ms. Williams has failed to present sufficient evidence that any breach of the standard of care by defendants proximately caused her injury.
As this Court has explained, “[o]ur courts rely on medical experts to show medical causation because ‘the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen[.]’ “ Azar v. Presbyterian Hosp., 191 N.C.App. 367, 371, 663 S.E.2d 450, 453 (2008) (quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). The expert testimony must establish that the connection between the medical negligence and the injury is “ ‘probable, not merely a remote possibility.’ “ Id. (quoting White v. Hunsinger, 88 N.C.App. 382, 387, 363 S.E.2d 203, 206 (1988)). If, however, “this testimony is based merely upon speculation and conjecture, ... it is no different than a layman's opinion, and as such, is not sufficiently reliable to be considered competent evidence on issues of medical causation.” Id. (citing Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)).
Defendants, in arguing in this case that Ms. Williams has failed to show causation, have relied both in the trial court and in this Court on this Court's decisions in Campbell v. Duke Univ. Health Sys., Inc., 203 N.C.App. 37, 691 S.E.2d 31 (2010), and Kenyon v.. Gehrig, 183 N.C.App. 455, 645 S.E.2d 125 (2007). In both cases, this Court held that the defendants were entitled to summary judgment because the plaintiff's expert evidence on causation was insufficient.
In Kenyon, 183 N.C.App. at 456, 645 S.E.2d at 126, the plaintiff brought a malpractice suit when he suffered a right femoral neuropathy following surgery during which a retractor was used. In reviewing the trial court's grant of summary judgment to defendants on the grounds that the plaintiff had failed to show causation, this Court first noted that the defendants, as the moving parties, had met their summary judgment burden by presenting expert testimony “that the type of injury that plaintiff suffered is a known risk of the procedure and can occur in the absence of negligence.” Id. at 457, 645 S.E.2d at 127.
The Court then concluded that the plaintiff, in responding to the defendants' motion, had failed to present sufficient expert testimony to give rise to a genuine issue of fact as to causation. Id. at 459, 645 S.E.2d at 128. The Court stressed that “[e]ssentially, all of plaintiff's experts testified that their opinions were based on the fact of the injury itself. Although they each, to varying degrees, put forth hypotheses as to the potential causes of the injury, none of them could point to any evidence of an act or omission, other than the existence of the injury itself, constituting negligence on the part of either defendant.” Id. Consequently, the Court concluded that the plaintiffs' expert's “assignation of negligence on defendants' part constituted mere speculation.” Id.
In Campbell, the plaintiff filed suit when he suffered an ulnar neuropathy in his left arm following a right shoulder arthroscopy and rotator cuff repair. 203 N.C.App. at 39–40, 691 S.E.2d at 33. He alleged that his injury was caused by the defendants' failure to observe the proper standard of care when padding, positioning, and monitoring his left arm, wrist, and hand during his surgery. Id. at 39, 691 S.E.2d at 34.
In affirming the trial court's order granting summary judgment to the defendants, this Court explained:
As plaintiff argues direct negligence, we only find it necessary to address whether plaintiff's facts raise a genuine issue of fact as to whether defendants proximately caused plaintiff's injuries by breaching the standard of care while padding and positioning plaintiff during surgery. Here, [the plaintiff's expert's] testimony constitutes mere speculation as to the proximate cause of plaintiff's injuries. For instance, as provided above, during the deposition [the plaintiff's expert] testified that he is unable to point to any specific incident or action of any defendant during plaintiff's 9 February 2004 surgery that would have caused plaintiff's injuries. Furthermore, [the plaintiff's expert] admits that he presumes defendants were negligent because plaintiff sustained an injury.
Although plaintiff alleged in his complaint that defendants were negligent in padding, positioning, and monitoring his left arm during the 9 February 2004 surgery of his right shoulder, plaintiff's expert does not connect any action or inaction of defendants to the injuries sustained. In fact, the only evidence plaintiff is able to provide in support of his negligence claim is the fact of his injury, and unfortunately, his injury is not the sort that would allow an average juror to determine negligence in the absence of expert testimony. Accordingly, as plaintiff is unable to present a forecast of evidence showing the existence of a genuine issue of material fact, we must affirm the trial court's order of summary judgment as to all defendants.
Id. at 44–45, 691 S.E.2d at 36–37.
In this case, after careful review of the record, we hold that Ms. Williams has presented the evidence missing in Kenyon and Campbell. While the experts in Kenyon and Campbell simply presumed negligence from the fact of the injury, Ms. Williams' experts identified the precise negligence that resulted in the injury: malpositioning of Ms. Williams during the surgery. In fact, defendant Dr. Humphreys wrote in a medical note that “[i]ndeed she has a neuropraxia based most likely on an arm positioning injury.”
Dr. Hubert Weinburg, a board certified plastic surgeon, testified: “Based on the fact that she had the injury that she subsequently had, clearly something had to have happened in the operating room that caused these injuries. And that only thing that could have happened was a malposition.” (Emphasis added.) Dr. Weinburg could “see no other possible etiology” than positioning for Ms. Williams' nerve injuries. He concluded: “[H]ad the patient been positioned properly there would not have been an injury....” He could not tell “if it was a compression injury from her dependent arm or it was a stretch injury from her suspended arm,” but “it would seem likely that it's one or the other.”
Plaintiff also presented the testimony of Charles R. Barton, a CRNA. When asked in his deposition whether nerve damage was an inherent risk of anesthesia, he replied that “under normal circumstances, if the patient presents with no historical evidence of any type of risk factor, I would say that nerve injuries that occur under those circumstances are preventable and are attributed to some type of malposition.” He was again asked whether he was saying “that any nerve injury related to general anesthesia is the result of some negligence?” He responded: “I don't know of any exception to that.”
With respect to the malpositioning, Mr. Barton testified that the chart lacked appropriate documentation as to “how the positioning took place.” He indicated that the “likely mechanisms are compression and stretch.” While he could not say definitively which occurred, he
believe[d] the mechanism of a malpositioning would have more to do with a compression injury than a stretching injury. Dr. Brown indicated that the arm was kept below 90 degrees. If it was above it, I'd worry more about a stretch injury. The length of time laying on each side, and particularly with the second positioning, certainly would lend toward more of a compression, but I can't say that with absolute certainty by any means.
Dr. Peter Simon Sebel, Vice Chair of the Department of Anesthesiology at Emory University Medical Center, testified that the “initial positioning and the repositioning are certainly critical portions” of the type of surgery Ms. Williams was undergoing. Dr. Sebel testified that “to a degree of medical probability, [Ms. Williams'] injury was caused by positioning.” He testified that it was improbable that the injury would be due to another syndrome or an anatomical variant of Ms. Williams' brachial plexus. Further, Dr. Sebel was of the opinion that “to a degree of medical probability, the injury was caused by positioning” most likely with respect to the arm not raised above Ms. Williams' head.
Dr. Conomy, a board certified neurologist who conducted a neurological evaluation of Ms. Williams a year after the surgery, testified that Ms. Williams' brachial plexus injury was “most likely” the result of malpositioning resulting in compression and/or traction of the lower arm. He concluded that other potential causes, such as anatomical variations that would predispose Ms. Williams to this type of injury, were not supported by the facts. Based on studies in the pertinent medical literature, Dr. Conomy's opinion was that “malpositioning caused [Ms. Williams'] injuries and is the proximate cause of [Ms. Williams'] disabilities and her impairments.”
Dr. Jeffrey A. Green, a board certified anesthesiologist, acknowledged that “[t]here are several postulated mechanisms of injury that could have occurred in this case,” but concluded that “the most likely possibility [is] compression of the brachial plexus in the dependent arm.” He testified that “[t]he other possible [sic] would be stretch injury which usually would occur in the non-dependent arm but really could occur in either arm during this case. But compression seems to be the most common form of injury when brachial plexus injuries do occur, so that's the one that I feel is most likely in this case, although we can't say for sure.” (Emphasis added.)
Thus, in contrast to Campbell and Kenyon, Ms. Williams presented expert testimony—and an admission from one of the defendants—identifying the precise allegedly negligent act that likely caused the injury: negligent positioning and repositioning of Ms. Williams during the surgery. Defendants contend, however, that in reaching these opinions, Ms. Williams' experts, like the experts in Campbell and Kenyon, inferred negligence based on the fact of the injury.
The experts in Campbell and Kenyon, however, testified that because there was an injury, there must have been negligence. Here, Ms. Williams' experts considered the nature of the injury to identify possible causes of that injury, including analysis of medical literature relating to that type of injury; eliminated unlikely causes; and reached opinions that the likely cause was improper positioning of Ms. Williams during the surgery. The process followed by Ms. Williams' experts is basic differential diagnosis—it is the scientific method and the opposite of speculation. Not surprisingly, nothing in Campbell nor Kenyon holds that the nature of an injury cannot be considered in reaching a conclusion regarding the injury's cause.
In addition, defendants point to the fact that Ms. Williams' experts acknowledged that the positioning problem could have been either from positioning the arm extended above the head or positioning the lower arm. Yet, the experts indicated that either positioning problem would be negligence. Neither Campbell nor Kenyon suggests that expert testimony of this nature, identifying two related specific negligent mechanisms of injury, is speculative and insufficient. In any event, Ms. Williams' experts went on to testify that compression to the lower arm was the more likely cause, thereby meeting our courts' probability requirement. See Azar, 191 N.C.App. at 371, 663 S.E.2d at 453.
To the extent defendants point to testimony by Ms. Williams' experts that supports their position, it is well established that “[c]onflicts in the evidence and contradictions within a particular witness' testimony are for the jury to resolve.” Day v. Brant, ––– N.C.App. ––––, ––––, 721 S.E.2d 238, 251 (internal quotation marks omitted), disc. review denied,––– N.C. ––––, 726 S.E.2d 179 (2012). Just as such conflicts cannot support a directed verdict, id., they cannot justify entry of summary judgment. See also Alexander v. Wal–Mart Stores, Inc., 166 N.C.App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting) (“[I]t is [not] the role of this Court to comb through the testimony and view it in the light most favorable to the defendant, when the Supreme Court has clearly instructed us to do the opposite. Although by doing so, it is possible to find a few excerpts that might be speculative, this Court's role is not to engage in such a weighing of the evidence.”), rev'd per curiam for reasons in dissenting opinion,359 N.C. 403, 610 S.E.2d 374 (2005).
We, therefore, hold that Ms. Williams presented sufficient of causation to give rise to a genuine issue of fact, and the trial court erred in entering summary for defendants. Consequently, we need not address the arguments regarding res ipsa loquitur.
Reversed. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).