Forbes v. Osteopathic Hospital of Maine, Inc.

HORNBY, Justice,

with whom McKUSICK, Chief Justice, joins, dissenting.

The only issue for trial after the amendment of the pleadings was medical malpractice: whether the hospital caused injury to Thomas Forbes through negligent diagnosis and treatment, independently of the actions of the two physicians who treated him. As the Court recognizes, “a plaintiff can ordinarily discharge his burden of proof in medical malpractice suits only by expert medical testimony establishing (1) the appropriate standard of medical care, (2) that the defendant departed from the standard, and (3) that the negligent conduct proximately caused the plaintiffs injury.” A defendant may “move with or without supporting affidavits for a summary judgment.” M.R.Civ.P. 56(b). When the plaintiffs failed to generate an expert witness in support of the malpractice claim, it was thus reasonable and proper for the defendant hospital to move for summary judgment, without filing an affidavit, based upon this failure and the pleadings. Since its motion was premised upon the allegations of the amended complaint and since the deadline for naming an expert had passed, there could be no “genuine issue of material fact.”

It is true that there is “an exception to the general rule” requiring an expert witness in medical malpractice cases. The exception occurs only “where the negligent and harmful results are sufficiently obvious as to lie within common knowledge.” It is ordinarily up to the proponent of an exception, however, to demonstrate that he qualifies for the exception, and Rule 56(e) provides that when a motion for summary judgment is “made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of that party’s pleading, but must respond by affidavits or as otherwise provided in this rule, setting forth specific facts showing that there is a genuine issue for trial.” M.R.Civ.P. 56(e). The role of summary judgment practice is to smoke out a genuine issue. Here the plaintiffs responded to the hospital’s motion for summary judgment with absolutely nothing. Since there was nothing on the record to suggest that the appropriate standard of medical care, the hospital’s alleged departure from it, and proximate cause were all so obvious as to eliminate the need for expert testimony,1 *19I believe the Superior Court was entirely correct in granting the motion for summary judgment. As the United States Supreme Court recognized in Celotex v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265, 274-75 (1986) and as this Court recognized in Estes v. Smith, 521 A.2d 682, 683 (Me.1987), summary judgment practice does not alter the burden of proof. In the absence of expert testimony, these plaintiffs will not be able to meet their burden at trial unless they are able to demonstrate affirmatively that they fall within an exception to the expert requirement, a demonstration they have given no hint of being able to make.2 Commentators have observed that

[wjhere the plaintiff will have the burden of proof on an essential issue at trial, the defendant may successfully move for a summary judgment when it is clear that he would be entitled to a directed verdict at trial if the plaintiff presented nothing more than was before the court at the hearing on the motion. Plaintiff has the opportunity to adduce evidence by deposition, affidavit, and the like, which will justify submission of his claim to a jury. He cannot hold back his evidence until the time of trial and escape summary judgment by the mere assertion that he will or may then produce further evidence. Here is no battle of affidavits and no weighing of credibility, which would of course be improper in a summary judgment motion. The plaintiffs claim fails simply for lack of proof.

2 Field, McKusick and Wroth, Maine Civil Practice § 56.2a at 36-37 (1970) (footnote omitted). Indeed, the Superior Court observed after hearing argument on this motion that the plaintiffs had not “identified anyone in particular at the hospital, other than the treating doctors, who did anything wrong. Nor has the plaintiff identified any negligent procedure that the hospital followed in supervising the treating doctors or in doing anything else.” It is a waste of *20judicial resources, therefore, to vacate the Superior Court order and send this case back for trial only to have the Superior Court enter a directed verdict for the defendant at the close of the plaintiffs’ case. We should encourage firm trial court action to put cases like this quickly to rest and save judicial and client resources.

I therefore dissent.

. The amended complaint alleges that Thomas Forbes injured his foot by stepping on a rusty nail while cleaning his barn containing calves with a bacterial disorder. The standard for *19proper treatment of such an injury is not “sufficiently obvious as to lie within common knowledge.” According to the amended complaint, the course of treatment of Forbes’ foot involved emergency room treatment, antibiotics, several days of inpatient care and x-rays, and took place over a period of several weeks. On the face of it, then, this case is not like others that have found expert testimony unnecessary and that we have characterized as "egregious mistreatment where the malpractice is sufficiently apparent as to lie within the understanding of laymen." Cox v. Dela Cruz, 406 A.2d 620, 622 n. 1 (Me.1979). See, e.g., Laws v. Harter, 534 S.W. 2d 449, 450-51 (Ky.1975) (surgical sponge left in patient); Malone v. Bianchi, 318 Mass. 179, 181-82, 61 N.E.2d 1, 2 (1945) (dentist extracting tooth dropped fragment which became lodged in patient's bronchus); Lanier v. Trammell, 207 Ark. 372, 377-78, 180 S.W.2d 818, 820-821 (1944) (failure to wash hands and sterilize instruments before eye operation); Evans v. Roberts, 172 Iowa 653, 660, 154 N.W. 923, 925-26 (1915) (physician cut off portion of child’s tongue).

. In his brief on appeal (his argument to the trial court was similar) the plaintiffs make clear their theory of the case:

Here, appellant Thomas Forbes suffered a single nail puncture wound to the foot. Following four weeks of unsuccessful treatment by appellee, during which Mr. Forbes had continuous pain and swelling, Mr. Forbes was diagnosed for the first time by a second hospital as having an infection in his foot, for which he then received successful treatment including the surgery to remove rust and fabric discussed supra. Rather than “a vague set of facts [from which no jury could] be expected to infer negligence” (see Superior Court opinion in record), this is precisely the type of straightforward fact pattern for which the exception to the expert medical witness rule was crafted. E.g., Patten v. Milam, 480 A.2d 774 (Me.1984).

In Patten, however, there was expert testimony that the standard of care required a physician to wash with an antiseptic solution, put on sterile gloves, scrub the wound and instruct the patient in caring for an injured toe. The court held only that the plaintiff did not need expert testimony to support a finding of deviation from this standard of care where there was lay testimony that the doctor failed to wash his hands, use sterile gloves, scrub the wound or instruct the patient on the proper care of her toe. Id. at 778. Here, the mere fact that subsequent hospital treatment removed rust and fabric from the wound would not permit a lay jury, without expert testimony, to determine the appropriate standard of care for the defendant hospital in operating its emergency room and inpatient facility, prescribing drugs and reading x-rays; nor to infer that the presence of the rust and fabric caused the symptoms of which Forbes complained. The trial court was entitled to rule, as a matter of law on the motion for summary judgment, that expert testimony was required; this is not a factual dispute.