Kerby v Moab Valley Healthcare, 2015 UT App 280.
A patient died following a bronchoscopy at Allen Memorial Hospital in Moab, Utah, allegedly from an excessive amount of postoperative pain medications during her three-hours stay for the outpatient procedure. She died at home that evening from what the medical examiner found to be the combined effects of asthma, chronic bronchitis, drug toxicity from morphine and promethazine, as well as obesity.
This medical malpractice personal injury suit against the hospital alleged that its nurses inappropriately discharged the patient when she was pharmaceutically inebriated instead of keeping her for overnight observation. The hospital’s own toxicology expert testified that, although was outside the scope of his expertise, is generally “more likely that a patient would survive” in a hospital than at home.
Plaintiff moved for partial summary judgment, contending that this testimony established causation as a matter of law. The trial court (The Honorable Lyle Anderson) denied the motion. At trial, the jury found negligence, but no causation. This appeal followed.
On appeal, plaintiffs contended that the trial court should have granted the motion for partial summary judgment on causation and that this issue should never have gone to the jury. This was based solely on the defendant’s toxicology experts deposition testimony that it was more likely that decedent would have survived in the hospital rather than at home. This admission was given in the middle of lengthy and hedging testimony denying expertise on the causation issue and characterizing any such testimony as speculative.
The appellate court (Orme/Toomey/Pearce) held this was entirely insufficient to establish causation as a matter of law. Not only because the expert said that he was unqualified to give causation opinions, but because the opinion itself was so indefinite. As the court noted, it’s inarguable that patients with significant respiratory problems generally do better in hospitals than at home, but that does not establish causation. (Namely, to a reasonable degree of medical probability, the patient would more likely than not have survived had she been kept in the hospital and properly monitored.)
A tangential issue was evidence of incarceration of one of the decedent’s sons. Plaintiff moved in limine for any such evidence to be disallowed as irrelevant and prejudicial, especially since the son had disavowed any interest in the lawsuit. The appellate court noted the discretion of the trial judge under rule 403, but chided it for not conducting the customary analysis required under rule 403. Had it done so, the trial court very likely would have concluded that the limited probative value of this evidence was substantially outweighed by the danger of undue prejudice. Nevertheless, the Court of Appeals found no prejudice in the probable error– the issue only went to damage, and the jury never reached that issue.
Plaintiff’s counsel was Utah personal injury lawyer Robert Strieper and defendant’s counsel were Salt Lake personal injury attorneys Bob Janicki and Mike Ford.
