Zumwalt v. Koreckij

LAWRENCE E. MOONEY, Judge.

Cora Belle Zumwalt (“Plaintiff’), appeals the trial court’s grant of summary judgment to Theodore Koreckij, M.D. and The Jefferson Memorial Hospital Association (collectively referred to as “Defendants”), for a nerve injury sustained by Plaintiff in her right hand, arm, and shoulder during the course of a right knee replacement operation. We reverse and remand.

Plaintiff underwent a total right knee replacement, or arthoplasty, on May 11, 1995 at Jefferson Memorial Hospital in Festus, Missouri. The operation was performed by Dr. Koreckij while Plaintiff was under general anesthesia. Upon awaking from the anesthesia, Plaintiff immediately experienced pain in her right hand, right arm and right shoulder. Plaintiff sued Defendants for medical malpractice.1 Because Plaintiff was unable to *168identify specific acts of negligence, she proceeded under the doctrine of res ipsa loquitur. Defendants moved for summary judgment, which the trial court granted because there was no expert testimony to show Defendants’ specific injury-causing act and thus it would be impossible for laymen to determine from common knowledge and experience that Plaintiffs injury would not have occurred but for Defendants’ negligence. Plaintiff filed this timely appeal. Both of Plaintiffs points on appeal allege that the trial court erred in sustaining Defendants’ summary judgment motions in this res ipsa medical malpractice case.2 We agree.

Summary judgment exists not to execute the merely weak, but rather to euthanize the terminally ill. From its inception, summary judgment has been regarded as “an extreme and drastic remedy and great care should be exercised in utilizing the procedure.” ITT Commercial Finance Corp., et al. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo.1993), quoting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.1964). At the base of this skepticism has been the suspicion that summary judgment “borders on denial of due process in that it denies the opposing party his day in court.” Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App. E.D.1985). Therefore, on appeal we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance, 854 S.W.2d at 376.

After reviewing the record in the light most favorable to Plaintiff, we conclude that the trial court erred in granting summary judgment for Defendants, and thereby prevented Plaintiff from submitting to the jury her medical malpractice claim under the doctrine of res ipsa loquitur.

Normally, in a medical malpractice case, a plaintiff is required to establish: (1) an act or omission by the defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession; and (2) that such negligence or omission caused the plaintiffs injury. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo.banc 1995). However, the doetriqe of res ipsa loquitur exists to obviate the need for direct proof of negligence, and allows cases submitted under the doctrine to proceed to the jury even in the absence of direct proof of negligence. See Graham v. Thompson, 854 S.W.2d 797, 799 (Mo.App. W.D.1993). In order to invoke the doctrine of res ipsa loquitur, a plaintiff must demonstrate: (1) the occurrence resulting in injury does not ordinarily happen in the absence of negligence; (2) the instrumentalities that caused the injury are under the care and management of the defendant; and (3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence. Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo.banc 1983).

Once a plaintiff establishes the three elements of res ipsa, an inference of defendant’s negligence arises. See Id. A jury can draw an inference of negligence without expert medical testimony. Gra*169ham, 854 S.W.2d at 799. In fact, the doctrine of res ipsa loquitur in a medical malpractice case requires that laypersons know, based upon their common knowledge or experience, that the cause of plaintiffs injury does not ordinarily exist absent the doctor’s negligence. Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo.1962). Once the inference of negligence created by res ipsa is established, it “will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence.” Graham, 854 S.W.2d at 801, quoting Schaffner v. Cumberland County Hosp. Inc., 77 N.C.App. 689, 336 S.E.2d 116, 118 (1985).

Here, there can be little doubt that Plaintiff has made a submissible res ipsa case, given that Plaintiffs right hand, arm and shoulder injury would not ordinarily occur absent negligence by Defendants in performing a right knee replacement, the instrumentalities involved were under Defendants’ care and management, and Defendants possessed superior knowledge about the cause of the injury. Defendants’ evidence does not negate any element of res ipsa, but rather attempts to rebut the inference of negligence created by the doctrine. However, the inference created by res ipsa cannot be rebutted at the summary judgment stage. Graham, 854 S.W.2d at 801. The inference alone creates a question that may only be resolved by the trier of fact.

Further, Missouri courts have consistently found in factually similar situations that a layperson could determine based upon common knowledge or experience that the plaintiffs injury does not ordinarily exist absent the doctor’s negligence. See Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602 (Mo.App. E.D.1988); Graham, 854 S.W.2d 797; Swan v. Tygett, 669 S.W.2d 590 (Mo.App. E.D.1984). Plaintiff underwent an arthoplasty, yet awoke only to experience immediate pain in her right shoulder, arm and hand. From such facts, a juror could conclude, based upon their common knowledge and experience, that the cause of Plaintiffs injury does not ordinarily exist absent negligence by the Defendants.

Moreover, the trial court erred in relying upon the lack of expert testimony regarding a specific injury-causing act, to conclude it impossible for laymen to determine from common knowledge that Plaintiffs injury would not have occurred but for Defendants’ negligence. Because a res ipsa medical malpractice case requires no expert testimony as to negligence for sub-missibility, it cannot be defeated on summary judgment by such expert testimony.

In addition, a party is not bound by unfavorable testimony of his witness if that testimony stands contradicted by other evidence and circumstances. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 634 (1953). As such, the testimony of Plaintiffs tongue-tied expert does not alter our analysis, for the testimony does not bind Plaintiff where, as here, he has produced contrary evidence of negligence through the application of the res ipsa loquitur doctrine.

Therefore, the trial court erred in granting summary judgment to Defendants by relying on expert testimony to conclude that it is impossible for laymen to determine from common knowledge that Plaintiffs injury would not have occurred but for Defendants’ negligence. Such misuse of summary judgment threatens to silence the doctrine of res ipsa loquitur and eviscerate the right to trial by jury. As such, we reverse the trial court’s grant of summary judgment to Defendants and remand for further proceedings consistent with this opinion.3

*170RICHARD B. TEITELMAN, P.J., concurs. CLIFFORD H. AHRENS, J., dissents in separate dissenting opinion.

. Plaintiff also sued Dr. Samuel Bai and various operating room personnel. However, the trial court granted Dr. Bai's motion to dismiss Plaintiff's claim against him because he did not participate in the operation. Plaintiff voluntarily dismissed her claim against the operating room personnel without prejudice because all individuals were employees of Jef*168ferson Memorial Hospital Association acting in the course of their employment at the time Plaintiff was under general anesthetic.

. We note at the onset that Plaintiff's first point relied on fails to comply with Rule 84.04(d), in that it is four paragraphs in length, and neither concisely states the legal reasons for her claim of reversible error nor explains why such reasons support her claim. We interpret Plaintiffs point relied on as raising two arguments: (1) the affidavits of Defendants’ experts were insufficient to support the grant of summary judgment, and (2) expert testimony cannot be used to deprive Plaintiff of her right to proceed under the doctrine of res ipsa loquitur. Despite the failure to comply with Rule 84.04, we prefer to decide the case on its merits and review the appeal ex gratia. See Ward v. State Farm Life Ins. Co., 833 S.W.2d 484, 487 (Mo.App.1992); Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo.banc 1997).

. We also acknowledge Plaintiffs contention in her second point relied on that summary judgment should be reversed because Defendants’ summary judgment motions fail to comply with Rule 74.04(c)(1). Although we need not address this argument given that we reverse on other grounds, we do note that Rule 74.04 only requires that summary judg*170ment motions state the undisputed material facts, and does not prohibit such motions from stating legal principles, conclusions, or otherwise. Thus, Defendants' motions are not defective merely because they additionally state principles of law and legal conclusions.