IN THE COURT OF APPEALS OF IOWA
No. 17-1213
Filed January 9, 2019
KASSIE RENE VEZEAU-CROUCH, Individually, as Daughter and
Administrator of the ESTATE OF TONI ANNETTE VEZEAU,
Plaintiff-Appellee,
vs.
ROY ABRAHAM, M.D. and MILLER ORTHOPEDIC,
Defendants-Appellants,
and
ALEGENT HEALTH SYSTEMS, d/b/a CHI HEALTH and
d/b/a MERCY HOSPITAL; JIANT PROPERTIES, LLC;
ANTHONY AND JILL MISCISKIA,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
Dr. Roy Abraham and Miller Orthopedic interlocutory appeal from denial of
their motion for summary judgment. AFFIRMED.
Kellen B. Bubach and Frederick T. Harris of The Finley Law Firm, PC, Des
Moines, for appellants.
J. Joseph Narmi and Kristina M. Kaeding, Council Bluffs, for appellee.
Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
DANILSON, Senior Judge.
Roy Abraham, M.D., and Miller Orthopedic (collectively, “defendants”) were
granted interlocutory appeal from the district court’s denial of their motion for
summary judgment. Although there are four specifications of negligence in the
petition, this appeal involves only one of them. Specifically, the defendants sought
interlocutory relief on the issue of whether Dr. Henry Hull was qualified to testify
regarding “Dr. Abraham’s diagnosis and treatment of post-operative methicillin-
resistant straphylococcus aureus (MRSA).” Related to this issue and also raised
in the application for interlocutory appeal is the defendants’ contention that Dr. Hull
does not provide a causation opinion to support damages and there was no expert
testimony to support the wrongful death damages.
Viewing the record of the expert’s qualifications in the light most favorable
to the non-moving party, we conclude, at this juncture, the expert is qualified to
testify regarding the one specification of negligence: whether Dr. Abraham
breached the standard of care and was negligent in failing to culture the post-
surgery infection to identify the organism that caused the infection, and this failure
resulted in ineffective treatment. We agree with the district court that the plaintiff
will still be subject to meeting its burden on the expert’s qualifications at the time
of trial. Furthermore, we conclude the expert’s deposition testimony is sufficient to
generate a jury question on causation, including the wrongful death damages. We
affirm the district court’s denial of summary judgment.
I. Background Facts and Proceedings.
Viewed in the light most favorable to the plaintiff, the following facts appear
in the summary judgment record. Toni Vezeau fractured her ankle on or about
3
August 1, 2013. Vezeau went to the emergency room at Alegent Health Mercy
Hospital (“Mercy”) on August 1, 2013, and Dr. Roy Abraham, an orthopedic
surgeon, performed open reduction with internal fixation (“ORIF”) surgery to repair
the fracture on August 2, 2013. At a follow-up appointment on August 20, Dr.
Thomas Atteberry removed the dressing, splint, and staples from Vezeau’s ankle,
and noted, “She is continuing to have some discomfort in the ankle. . . . Incisions
appear well healed. No surrounding swelling. Minimal erythema. Easily wiggles
her toes. Sensation is within normal limits.” Dr. Atteberry also noted x-ray showed
“fractures to be appropriately reduced.” Dr. Atteberry prescribed Vezeau pain
medication and placed her in a padded short-leg cast.
At Vezeau’s one-month follow-up appointment, Dr. Abraham removed the
padded cast and noted there was “some mild pus coming out” but that “it looks
reasonably healed.” Dr. Abraham noted Vezeau continued to complain of pain,
and he prescribed her more pain medication. Dr. Abraham noted he told Vezeau
this would be her final prescription for pain medication.
On September 20, Dr. Abraham saw Vezeau again, and noted:
Her ankle did have an episode of mild cellulitis. Today it looks
better but still slightly swollen and mildly red, but no drainage. She
does complain of pain. ROS: No rise of temperature. No
neurological deficits. . . . Examination of the ankle shows good
dorsiflexion, plantar flexion, about fifteen to twenty degrees. She has
mild redness on the lateral side of the incision. . . . X-rays taken
today shows that the ankle has been maintained in excellent position.
. . . I am going to arrange for her to start some physical therapy to
get her ankle moving. She can weight bear as tolerated. I also will
arrange for her to be seen by a pain doctor to manage her pain.
Vezeau met with Dr. Huy Trinh on September 27. Dr. Trinh noted:
She has been treated for infection with Keflex and Augmentin
for almost four weeks with no improvement. She continues to have
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a lot of pain right ankle. . . . She does full weight bearing. She does
not run any fever or chills. . . . On exam there is moderate redness
around the lower part of lateral incision. There is minimal drainage.
There is moderate swelling of the ankle still. . . . We repeated x-ray
right ankle today in the office and shows the fracture of the distal
fibula is healing in excellent position. I do not see any lysis.
Under “Impression,” Dr. Trinh wrote, “Deep infection post ORIF of bimalleolar
fracture right ankle.” Dr. Trinh recommended Vezeau undergo a procedure to
drain and possible remove hardware from her right distal fibula. Dr. Trinh further
noted,
The patient, due to personal conflict does not want to see Dr.
Abraham. With Dr. Atteberry on call I will ask him to perform the
surgery tomorrow at Mercy. She will need IV antibiotics. . . . Will put
her on Vancomycin to start with after the culture has been done in
the OR.
On September 28, Dr. Atteberry performed the surgery to irrigate and
debride Vezeau’s wound and to remove a plate and screws from her ankle. Two
screws were left in place. On September 30, cultures of the wound indicated a
possible MRSA infection. After MRSA was detected, doctors began aggressively
treating Vezeau’s infection with antibiotics. Vezeau returned for a re-check with
Dr. Atteberry on October 29. Dr. Atteberry noted at that time:
She feels the ankle is steadily improving. She is able to walk
more easily with less pain. Patient is complaining of her left shoulder.
Apparently, she thinks she injured that in the original accident. She
states she has also fallen twice since the time of the accident, landing
on the shoulder. She notes fairly constant pain in the shoulder. She
has difficulty using crutches. . . . ROS: Significant for decreased right
ankle pain and swelling. No fevers or chills. . . . Patient’s right ankle
looks much improved. Incision is well healed. No drainage. No
surrounding swelling or erythema. She is able to actively flex and
extend the ankle.
On December 27, Vezeau saw infectious disease physician Dr. Joong Yong
Kwon. Dr. Kwon noted Vezeau,
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Had initial septic arthritis in 10/2013, at that time two screws on the
medial side remained. s/p 7 weeks Dapto, then had recurrence on
the medial side and had I&D and HWR done on 11/22/13. Culture
grew MRSA again, vanco MIC 2.0 then has been on IV daptomycin
and plan to continue through 1/2/2014.
Vezeau re-injured her ankle while getting out of bed and visited the
emergency room at Mercy on February 25, 2014. Vezeau was admitted to the
hospital, and Dr. Abraham consulted. Dr. Abraham noted:
MRI according to the report shows signs of osteomyelitis. . . .
No redness, minimal swelling over the right ankle, no evidence of
acute infection. . . . The ankle itself surprisingly does not look actively
infected. There is minimal swelling, no redness or high temperature.
No evidence of any discharge. All the incisions looked healed. Good
range of movements of the ankle. The MRI suggests possible
lesions in the talus and the tibia. . . . I will put her on some IV
antibiotics to see if this will settle however to deal with the lesion of
the talus of this nature would need some more expert help which our
group does not have. . . . I did aspirate the right ankle and did not
get any pus. I have sent it for some culture and sensitivity. We will
wait to see if this grows anything and if it does we will put to the
appropriate antibiotic.
Despite aggressive, repeated treatment with antibiotics, Vezeau developed
chronic septic arthritis with possible osteomyelitis. At that point, as stated by a
defense expert, “One of the only remaining options was amputation.” On April 29,
2014, Vezeau underwent a right below-knee amputation.
Approximately eight and half months later, on January 13, 2015, Vezeau
was hospitalized for psychiatric issues including suicidal thoughts, chronic
alcoholism, alcohol intoxication, mood problems, and phantom limb pain. Vezeau
had a history of depression and substance abuse. She told doctors she was
suicidal because of her leg amputation. She told one doctor, “I can’t live like this
anymore” while pointing at her knee. Vezeau was discharged from psychiatric
6
care on January 28, 2015. On February 6, 2015, Vezeau died of an accidental
mixed-drug overdose.
On July 29, 2015, Kassie Rene Vezeau-Crouch, individually, as daughter
and administrator of the estate of Toni Annette Vezeau, sued Dr. Abraham and
Miller Orthopedic.1 The plaintiff alleged professional negligence in the following
ways, found in paragraph 21 of the petition:
(1) Failing to properly perform the surgery to the ankle on
August 2, 2013;
(2) Failing to properly monitor or supervise the surgery to the
ankle on August 2, 2013;
(3) Failing to properly follow industry sterilization and safety
standards;
(4) Failing to properly undertake steps to avoid the spread of
a MRSA infection; and
(5) Other unspecified acts of negligence.
This interlocutory appeal only relates to paragraph (4).
The plaintiff designated Dr. Hull as the sole, retained medical expert witness
to testify regarding standard of care, proximate cause, and damages. Dr. Hull is
an epidemiologist with more than forty years of experience in infectious disease
control. He trained as an epidemic intelligence service officer with the Centers for
Disease Control and has been employed with the Minnesota Department of Health
in the infectious disease epidemiology prevention and control division. Dr. Hull
testified that during his time with the Minnesota Department of Health, the
department became “the first health department in the country to make MRSA
1
Crouch also sued Alegent Health Systems d/b/a CHI Health and d/b/a Mercy Hospital,
Jiant Properties LLC, and Anthony and Jill Misciskia. This appeal pertains only to the
motion for summary judgment filed by Dr. Abraham and Miller Orthopedic.
7
reportable, and we had an extensive surveillance system and were national
leaders in studying MRSA.”
Dr. Abraham and Miller Orthopedic filed a motion for summary judgment,
contending Dr. Hull was not qualified “to testify as to issues of standard of care,
breach and causation for an orthopedic surgeon’s operative and post-operative
care and treatment of an orthopedic surgical patient.” Defendants also contended
they were entitled to summary judgment on causation and damages. The plaintiff
resisted the motion, contending Dr. Hull was qualified to offer the standard of care
opinion he offered—that the standard of care would have been to culture the
wound to identify the organism and treat the infection with the appropriate
antibiotics.
The district court rejected the Defendants argument Dr. Hull was not a
qualified medical expert and denied the motion for summary judgment, stating,
The plaintiff[] assert[s] that the issue in this case is the
infectious disease and not the surgery itself and, therefore, Dr. Hull
is qualified as an epidemiologist. When reviewing the issue in the
light most favorable to the plaintiffs, the court finds at this time that
Dr. Hull is qualified to testify in this case but will still be subject to
meeting the plaintiff[’s] burden at time of trial.
The court also found Dr. Hull testified about a breach of the standard of care during
his deposition, and that deposition testimony effectively revised his expert report.
The court found the Defendants had ample time to address the revision and denied
summary judgment on causation grounds. Lastly, on the matter of wrongful death
damages, the court acknowledged there was no expert testimony that Vezeau’s
leg amputation was the cause of her eventual drug overdose, but noted Dr. Hull
did testify that “early detection and treatment would have greatly increased the
8
chances” to avoid amputation. Further, Vezeau herself informed hospital staff that
she was suicidal because of her leg amputation and she was placed on several
medications to alleviate her mental health symptoms, pain, and phantom limb pain.
The court concluded summary judgment should be denied, citing Mulhern v.
Catholic Health Initiatives, 799 N.W.2d 104 (2011) (explaining the question of
negligence of a non-custodial suicide is commonly a question of fact).
On July 31, 2017, Defendants filed an application for interlocutory appeal,
contending the district court erred in not disqualifying Dr. Hull from providing the
standard of care opinion he provided and in denying summary judgment.
Defendants also contend the district court erred in not granting summary judgment
on the issues of causation and wrongful death damages. The application for
interlocutory review was granted on October 6, 2017.
II. Scope and Standard of Review.
We review summary judgment rulings for correction of errors at law. Baker
v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). In a case such as this,
summary judgment is appropriate “when the party can demonstrate that the proof
of the other party is deficient as to a material element of that party’s case.”
Thompson v. Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000);
see also Welte v. Bello, 482 N.W.2d 437, 440 (Iowa 1992) (stating summary
judgment is appropriate if expert testimony is required to establish general
negligence or foundational facts and such testimony is unavailable); Oswald v.
LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (citing Donovan v. State, 445 N.W.2d
763, 766 (Iowa 1989) (stating issue is “not whether there was negligence in the
actions of the defendant but whether there was evidence upon which liability could
9
be found”)). The court reviews the record in a light most favorable to the opposing
party. Frontier Leasing Corp. v. Links Eng’g, L.L.C., 781 N.W.2d 772, 775 (Iowa
2010). We afford the opposing party every legitimate inference the record will
bear. Id.
III. Discussion.
A. Necessity of Expert Testimony in Medical Negligence Suits.
To establish a prima facie case of medical negligence, the plaintiff must
submit evidence that shows: (1) the applicable standard of care, (2) a breach of
the standard of care, and (3) a causal relationship between the breach and the
harm the plaintiff allegedly experienced. See Peppmeier v. Murphy, 708 N.W.2d
57, 61–62 (Iowa 2005). Almost always, a plaintiff must prove each element
through expert testimony. Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa
2001).
If the standard of care of a physician, surgeon, or dentist is at issue, Iowa
law permits only testimony upon the appropriate standard of care by an expert who
has “qualifications relate[d] directly to the medical problem or problems at issue
and the type of treatment administered in the case.” Iowa Code § 147.139;2 Bray
v. Hill, 517 N.W.2d 223, 226 (Iowa Ct. App. 1994). A physician need not be a
specialist in a particular field of medicine to give an expert opinion. See Shover v.
Iowa Lutheran Hosp., 107 N.W.2d 85, 89 (1961). An expert witness must be
generally qualified in a field of expertise and must also be qualified to answer the
2
The expert witness qualifications required by Iowa Code section 147.139 were amended
in 2017. Here, the parties agree the 2015 version of the statute governs the plaintiff’s
action.
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particular question propounded. Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d
396, 402 (Iowa 1991).
B. Investigation and Treatment of MRSA Infection.
The Defendants contend Dr. Hull is not qualified to offer the standard of
care opinion he rendered because his medical qualifications and experience do
not relate directly to the medical problems and treatment administered in this case.
The plaintiff asserts the medical problem in this case is whether the MRSA
infection was properly investigated and treated—not the surgery itself3—and,
therefore, Dr. Hull is qualified to testify based on his training and experience as an
epidemiologist specializing in infectious diseases.
Dr. Hull testified in his deposition that Dr. Abraham fell short in his duties to
investigate Vezeau’s infection and to treat it properly. Specifically, Dr. Hull testified
that when Dr. Abraham observed pus coming from the wound on September 6,
2013, Dr. Abraham should have cultured the pus to determine what organism
Vezeau was infected with. When Vezeau saw Dr. Abraham on September 20,
there was no indication in the medical records that the pus was cultured or that
Vezeau was being treated with antibiotics. It wasn’t until September 27 that Dr.
Trinh noted Vezeau had been treated with the antibiotics Keflex and Augmentin.
Dr. Hull testified Keflex and Augmentin are not effective against MRSA.
3
Neither the appellant’s motion for summary judgment, nor the ruling on the same,
addressed the plaintiff’s specific claims found in paragraph 21 of the petition. Nor does
there appear to be an amended petition in the record narrowing the plaintiff’s claims. The
denial of summary judgment on these claims was not raised on appeal, and we do not
address them.
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Dr. Hull testified a wound culture would have enabled Dr. Abraham to
determine if Vezeau had MRSA and then treat her with the correct antibiotics. Dr.
Hull also testified if Vezeau had been treated with antibiotics effective against
MRSA, “it would have substantially reduced the chances that she would have
progressed to the point where her leg needed to be amputated.” Dr. Hull testified
that based on the site of the infection, the fact the infection developed shortly after
surgery, and that MRSA is a common cause of post-surgical infections, it was more
likely than not a post-surgical infection resulted from contamination of the wound
at the time of surgery.4
Many of the Defendants’ complaints regarding Dr. Hull’s qualifications
mirror the new requirements of Iowa Code section 147.139 (2018).5 As previously
4
Dr. Hull also testified he was not able to identify exactly how the contamination occurred.
5
The new statute requires:
If the standard of care given by a health care provider, as defined
in section 147.136A, is at issue, the court shall only allow a person the
plaintiff designates as an expert witness to qualify as an expert witness and
to testify on the issue of the appropriate standard of care or breach of the
standard of care if all of the following are established by the evidence:
(1) The person is licensed to practice in the same or a substantially
similar field as the defendant, is in good standing in each state of licensure,
and in the five years preceding the act or omission alleged to be negligent,
has not had a license in any state revoked or suspended.
(2) In the five years preceding the act or omission alleged to be
negligent, the person actively practiced in the same or a substantially
similar field as the defendant or was a qualified instructor at an accredited
university in the same field as the defendant.
(3) If the defendant is board-certified in a specialty, the person is
certified in the same or a substantially similar specialty by a board
recognized by the American board of medical specialties, the American
osteopathic association, or the council on podiatric medical education.
(4) (a) If the defendant is a licensed physician or osteopathic
physician under chapter 148, the person is a physician or osteopathic
physician licensed in this state or another state.
(b) If the defendant is a licensed podiatric physician under chapter
149, the person is a physician, osteopathic physician, or a podiatric
physician licensed in this state or another state.
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noted, the parties agree the 2015 version of the statute governs this action. The
2015 version of the statute requires only that the expert’s “qualifications relate
directly to the medical problem or problems at issue and the type of treatment
administered in the case.” Essentially, the Defendants contend that because Dr.
Hull is not an orthopedic surgeon, does not actively treat patients, and has never
diagnosed or treated a patient infected with MRSA, he cannot offer an expert
opinion as to whether the MRSA infection was properly detected and treated.
Some of the arguments raised by the Defendants might be relevant to the
weight of Dr. Hull’s testimony, but none of the issues raised disqualify Dr. Hull
under the governing section 147.139 from testifying as to whether Dr. Abraham
breached the standard of care and was negligent in failing to culture the post-
surgery infection to identify the organism with which Vezeau was infected.
Granting of summary judgment has been upheld in cases in which the
plaintiff failed to timely designate an expert. See, e.g., Donovan, 445 N.W.2d at
765. In one case, summary judgment was granted and upheld on appeal where
the plaintiff’s designated expert refused to opine on the appropriate standard of
care or its breach. See Kush v. Sullivan, No. 12-1292, 2013 WL 4437077, at *2–
3 (Iowa Ct. App. June 12, 2013). Summary judgment has also been deemed
appropriate where the only designated expert was unable to conclude whether
there was a breach of the standard of care. See, e.g., Kennis v. Mercy Hosp. Med.
Ctr., 491 N.W.2d 161, 164 (Iowa 1992).
Whether an expert is qualified to testify is a question of law for the court to
decide. See Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 686 (Iowa 2010). But,
our supreme court has also said, “[T]he qualifications of an expert can only be
13
properly assessed in the context of the issues to be determined by the fact finder.”
Id. at 687. So, although the question of whether the expert is qualified is a legal
question, that question can only be answered based on what the record discloses
about the expert’s training and experiences and the medical problems and
treatment administered in the case.
Here, we are tasked with deciding whether summary judgment is
appropriate based on Dr. Hull’s qualifications to testify Dr. Abraham was negligent
in investigating and treating the MRSA infection. Viewing the record of Dr. Hull’s
qualifications in the light most favorable to the plaintiff, the district court concluded
summary judgment should be denied. In its ruling, the court noted the plaintiff
would still carry the burden at trial of showing Dr. Hull is qualified to offer expert
testimony. We discern no legal error in the district court’s ruling.
C. Causation
The Defendants also contend they are entitled to summary judgment
because Dr. Hull was “unable to opine that the alleged breach of the standard of
care more likely than not caused the damages at issue.” The plaintiff contends Dr.
Hull adequately stated his opinion that, “I think [if Vezeau had been treated with
other antibiotics that would have been effective against MRSA] it would have
substantially reduced the chances that she would have progressed to the point
where her leg needed to be amputated.” Dr. Hull also stated he could not say “for
certain” whether amputation would have been prevented had Vezeau been treated
earlier with different antibiotics.
Where “common knowledge and everyday experience would not suffice to
permit a layman’s expression of opinion as to whether” a medical provider’s
14
alleged negligence was “a substantial factor in bringing about the complained of
result,” then causal connection must be founded upon expert evidence. See
McCleeary v. Wirtz, 222 N.W.2d 409, 413 (Iowa 1974). Where expert testimony is
necessary to establish causation, “[t]he rule is that expert testimony indicating
probability or likelihood of a causal connection is sufficient to generate a question
on causation.” Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 485 (Iowa
2004). Testimony that a breach of the standard of care increased the risk of harm
is sufficient to generate a questions on causation. See Asher v. OB-Gyn
Specialists, P.C., 846 N.W.2d 492, 503 (Iowa 2014), overruled on other grounds
by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). Absolute
certainty is not required, and the evidence of causation does not need to be
conclusive. See Ranes, 778 N.W.2d at 688. “Buzzwords like ‘reasonable degree
of medical certainty’ are therefore not necessary to generate a jury question on
causation.” Hansen, 686 N.W.2d at 485.
Dr. Hull testified treating Vezeau earlier with different antibiotics would have
“substantially reduced the chances” the leg would need to be amputated. We
conclude this testimony is sufficient to generate a question on causation, and the
district court did not err in denying summary judgment on causation.
D. Wrongful Death Damages.
Finally, Defendants contend the district court erred in denying summary
judgment on wrongful death damages because Dr. Hull did not offer any opinion
that the breach of the standard of care caused Vezeau’s death by accidental drug
overdose. “Generally, questions of negligence and proximate cause are for the
15
jury; it is only in exceptional cases that they may be decided as matters of law.”
Barnes v. Bovenmyer, 122 N.W.2d 312, 314 (Iowa 1963).
This is not the sort of case where common knowledge and everyday
experience would not suffice to permit a layman to opine whether the claimed
negligence was a substantial factor in bringing about the complained of result. See
McCleeary, 222 N.W.2d at 413. The plaintiff claims a chain of events beginning
with the Defendants’ breach of the standard of care led to Vezeau’s wrongful
death. The Defendants claim the Vezeau’s significant, pre-existing substance
abuse, mental health, and psychiatric diagnoses are to blame for her accidental
overdose.
Prior to her amputation, Vezeau had a history of depression and drug and
alcohol abuse, but her medical records disclose she regularly denied having
suicidal thoughts. Vezeau complained of ankle pain shortly after the first surgery
and was prescribed pain medication by Dr. Abraham. At her one-month follow-up
appointment, the appointment at which Dr. Abraham noticed pus coming from the
wound, Vezeau continued to complain of pain and was prescribed more pain
medication. After her leg was amputated due to the continuing MRSA infection,
Vezeau suffered additional pain, including phantom limb syndrome, and negative
perceptions of her body, and she was prescribed more pain medication. Vezeau
went to the emergency room because she was having suicidal thoughts and told
doctors her suicidal thoughts were because of her amputated leg and phantom
pain. Vezeau told doctors she was consuming large quantities of alcohol on a daily
basis. At the time she was hospitalized for suicidal thoughts, Vezeau apparently
had prescriptions for methadone, oxycodone, pregabalin (for nerve pain),
16
sertraline (antidepressant), and quetiapine (antidepressant). She was then
hospitalized at a psychiatric hospital. It is not clear from the record what
prescriptions Vezeau was taking when she was discharged from the psychiatric
hospital. Nine days after Vezeau was discharged from the psychiatric hospital,
she died of an accidental mixed-drug overdose. Whether Vezeau’s death by
accidental mixed-drug overdose was caused by the chain of events beginning with
alleged negligence leading to a MRSA infection and amputation and the resulting
pain is a disputed material fact. Summary judgment was properly denied.
AFFIRMED.