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Smith v. Central Vermont Hospital11/9/2004
ENTRY ORDER
1. Plaintiff in this medical malpractice action appeals from a summary judgment of the Washington Superior Court in favor of defendants Dr. Gary H. Goldberg and Central Vermont Hospital. Plaintiff contends the court erred in striking an expert's affidavit and consequently finding a failure of proof on the element of causation. We agree, and therefore reverse and remand.
2. As found by the trial court, the facts may be briefly summarized. Plaintiff is the administratrix of the estate of her son, Shaun Smith, who died at the age of eighteen while being treated at defendant Central Vermont Hospital. Shaun was injured in a bicycle accident on July 1, 1999. Emergency medical personnel found him sitting on the side of the road, complaining of back and mouth pain. The EMS squad transported him to CVH, where he presented with facial trauma and appeared to be extremely combative. Dr. Goldberg, a specialist in emergency medicine, consulted with the emergency personnel and examined Shaun, but did not immediately call for the assistance of a surgeon or anesthesiologist. Shaun was placed in restraints and given anti-anxiety medication. One and a half hours later, he was sent to x-ray. Upon returning from x-ray, he appeared to have difficulty breathing. After several attempts, he was successfully intubated (a tube was inserted to help with his breathing). By then, however, he had aspirated enough blood into his lungs that he was unable to breathe despite the intubation. He died shortly thereafter.
3. Plaintiff filed a medical malpractice action against Dr. Goldberg and CVH. In February 2002, defendants moved for summary judgment, noting that plaintiff had failed to provide a timely disclosure of the expert opinions on which she planned to rely and therefore could not establish the elements of her claim. The court denied the motion, but established a new discovery schedule, requiring disclosure of all experts by June 6, 2002, after which plaintiff would be precluded from disclosing any experts. Plaintiff disclosed as her expert Dr. Andrew Sumner, a specialist like Dr. Goldberg in emergency medicine. Dr. Sumner was deposed in September. In his deposition testimony, Dr. Sumner opined that-in view of Shaun's symptoms and medical history -Dr. Goldberg had been negligent in failing to call immediately for the assistance of a surgeon and anesthesiologist to consult on the need to intubate, but also indicated that the failure to intubate right away was negligent and a proximate cause of Shaun's death. At one point, Dr. Sumner acknowledged that if a surgeon and anesthesiologist had counseled against immediate intubation, "then I wouldn't be critical of [Dr. Goldberg]."
4. In December 2002, defendants filed a second motion for summary judgment. In support of the motion, they filed the affidavits of the two surgeons and the anesthesiologist who had actually been called to intubate Shaun after several hours at the hospital. All three physicians stated that-if they had been called earlier-they would not have recommended intubation. In her opposition to the motion, plaintiff adduced no affidavits or other expert testimony to directly refute the opinion of the three specialists, but did note that Dr. Mason (the surgeon) had acknowledged in his deposition that he was not an expert in intubation, and that Dr. Sharp (the anesthesiologist) had admitted that it was difficult to assess what was required in the emergency room without having been there. Plaintiff also attached an affidavit from Dr. Sumner in which he stated that, in light of Shaun's agitation, medical history, and facial injuries, a reasonable standard of medical care required a rapid sequence intubation (RSI) when Sh
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