Appeal from Shawnee District Court; DAVID E. BRUNS, judge.
1. In a medical malpractice case, where the only opinion of causation contained in an expert report was completely disavowed in a subsequent deposition of that same expert, we view reliance on the disavowed report for purposes of a summary judgment motion as akin to an attempt to modify deposition testimony with an affidavit for the same purposes, a practice long ago prohibited.
2. Under the facts of this case, where an expert witness failed to verify or affirm his report under oath, never filed an affidavit confirming the accuracy of his report, and never testified by deposition or otherwise that the report was accurate and complete, the report is not subject to primary consideration for purposes of summary judgment.
3. In order to establish medical malpractice, the plaintiff is required to demonstrate the same elements of proof as in a negligence action, including: (1) the defendant owed the plaintiff a duty of care and was required to meet a certain standard of care; (2) the defendant breached this duty; (3) plaintiff was injured; and (4) this injury was caused by the breach of the standard of care. Expert testimony is required in medical malpractice cases to establish the applicable standard of care and to prove causation.
4. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible.
5. Without evidence of causation, a plaintiff's medical malpractice claim cannot survive a summary judgment challenge.
The opinion of the court was delivered by: Greene, J.
Before GREENE, P.J., MALONE and LEBEN, JJ.
Michelle R. Cutrer appeals the district court's dismissal of her medical malpractice lawsuit against Dr. Taylor L. Porter and Stormont-Vail Healthcare, Inc. (Stormont-Vail), arguing that the court erred in refusing to consider her expert witness' report to controvert material facts and in awarding judgment to the defendants as a matter of law. Based upon the deposition testimony of Cutrer's expert, his preliminary report was undermined and the causal nexus of any breach of standard of care to Cutrer's purported injuries was disclaimed. Concluding Cutrer failed to controvert key material facts as to lack of causation and injury, summary judgment was appropriate. Accordingly, we affirm the district court.
Factual and Procedural Background
Cutrer had a long history of depression and suicidal ideation. When she began having suicidal thoughts as a result of a broken engagement, her primary care physician prescribed 20 mg per day of Paxil beginning March 3, 2003; this dosage was subsequently increased to 40 mg per day. On March 25, 2003, Cutrer voluntarily admitted herself into the psychiatric unit at Stormont-Vail, and during her 3-day stay at the hospital, Dr. Porter switched Cutrer's medication from Paxil to Remeron. Porter tapered Cutrer off of the Paxil, ordering 20 mg per day for 3 days before completely discontinuing it in favor of Remeron.
On March 28, 2003, Cutrer was discharged from Stormont-Vail at her request with a discharge plan to continue to see her therapist, to continue receiving medication from her primary care physician, and to see a psychiatrist. Stormont-Vail's records indicate that, prior to Cutrer's release, a nurse left a message with Connie Lofgreen, Cutrer's therapist, telling Lofgreen about Cutrer's discharge plan. In addition, the hospital's records showed Cutrer told the hospital staff she had contacted Lofgreen and had set up a time for a therapy session. Lofgreen later denied knowledge of such contacts. Porter gave Cutrer a prescription for a 30-day supply of Remeron and a 30-day supply of Ambien.
Upon discharge, Cutrer had the prescriptions filled but gave the pills to her sister because her sister was not comfortable with Cutrer having so many pills in her home. The next day, Cutrer called the Stonestreet Professional Offices and talked with Dr. Elizabeth Hatcher. Hatcher told Cutrer there was a risk to discontinuing Paxil and that Cutrer should take 30 mg of the drug on Saturday and 30 mg on Sunday, but Cutrer took more pills than the prescribed dosage because she wanted to sleep. On Sunday, she went to her sister's house and picked up the next week's dosage of Remeron and Ambien. She then took a number of Ambiens, seven Remerons, and some over-the-counter sleeping pills because she wanted to kill herself, but Cutrer later expressed some confusion over exactly how many and which pills she took.
On March 30, 2003, Lofgreen called Stormont-Vail to check up on Cutrer. After learning that Cutrer had been discharged, Lofgreen called her at home. During their conversation, Lofgreen realized Cutrer was "under the influence," called Cutrer's sister, and told her to take Cutrer to the emergency room. Cutrer's father took her to the emergency room where she was kept under observation, but the hospital did not pump her stomach because it had been too long since she had overdosed. The hospital released her after a 1-hour stay with instructions to stay at her father's and to see her therapist in the morning.
In late November 2004, Stormont-Vail brought a collection suit against Cutrer seeking $2,758, apparently for services during her hospitalization. Cutrer answered and brought a medical malpractice counterclaim against both Porter and Stormont-Vail, alleging damages "in the form of pain and suffering, emotional distress and mental anguish, and additional medical expenses as well as economic losses." Specifically, Cutrer claimed the hospital breached its duty of reasonable care by "failing to place [her] on the proper taper-phase regimen for Paxil" and by "sending [her] home with two months worth of medication, and by failing to advise her therapist of her discharge." She claimed Porter breached his duty of reasonable care by "abruptly ...