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Berger v. Ogden Regional Medical Center

Berger v. Ogden Regional Medical Center, 2020 UT App 85 (Pohlman, J.)

Medical Malpractice

In early 2011, during lung surgery, a patient suffered a brain injury and emerged from surgery unresponsive. She died a week later. In 2014, the plaintiffs—the patient’s estate and two close family members—filed a medical malpractice suit against the hospital and several medical professionals. In 2018, the day before the expert disclosure deadline, the plaintiffs filed a motion asking for a ruling on a res ipsa loquitur jury instruction. They further sought to extend the expert disclosure deadline until the court decided whether res ipsa loquitur applied. The district court ruled that res ipsa loquitur did not apply, denied their request to extend the expert discovery deadlines, and granted summary judgment in favor of the defendants. The plaintiffs appealed. The Utah Court of Appeals affirmed, holding:

  • The district court correctly ruled that res ipsa loquitur did not apply. Res ipsa loquitur relies on, among other things, an understanding that the accident was of a kind which, in the ordinary course of events, would not have happened had the defendants used due care. Such an understanding allows plaintiffs to bypass admitting expert testimony on a breached standard of care. But here, the medical and standard of care questions are complex and involve a number of subjects with which a lay juror would have no familiarity or expertise, including non-small cell carcinoma, robotic surgery, anesthesia techniques, and hospital blood procedures and administration. It is not within the common understanding of laypersons to determine whether a surgeon correctly performed the robotic evaluation and removal of non-small cell carcinoma, whether anesthesia techniques used during the surgery were appropriate and within the standard of care, and whether a patient was adequately and appropriately monitored during a procedure. It is also not within the common understanding of laypersons to evaluate hospital policies regarding availability of blood product in procedures such as this, including blood bank procedures and the use of a cell saver machine. Res ipsa loquitur did not apply.
  • The district court did not abuse its discretion in refusing to grant the plaintiff’s motion to extend the expert disclosure deadline. The decision whether to grant such a motion is a discretionary call. And the court articulated reasonable bases for its decision: the plaintiffs had been litigating the case for four years, had every opportunity to designate expert witnesses, and forced the defendants to disclose their witnesses out of order and without the benefit of the plaintiff’s expert disclosures. This was not an abuse of discretion, even if the court of appeals would possibly have made a different call
  • Because res ipsa loquitur was not available in this case, the grant of summary judgment was appropriate, because the plaintiffs cannot prove all of the elements of a medical malpractice claim without an expert to testify about the standard of care in the medical community.

Read the full court opinion

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