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Benson v. Tkach3/20/2001
ning the area. Anticiotics were administered through a tube. Again, I trusted Dr. Tkach, the McBride Clinic staff that the care given my mother was appropriate to stop the infection. My mother continued to suffer greatly from her left hip and upon several occasions, I asked Dr. Tkach about replacing the left hip joint, or at least removing it so the infected area could heal. Dr. Tkach refused to do so and stated that "Medicare had his hands tied," which told me he would not remove the source of the infection because there was no money to pay for the surgery.
Defendants filed replies, asserting Dr. Kroft's affidavit failed to include qualifying statements and specific allegations of negligence, and thus was insufficient to avoid summary judgment. Defendants also asserted Plaintiff's affidavit was insufficient to establish malpractice because Plaintiff was not a medical expert.
The trial court granted Defendants' motions for summary judgment. Plaintiff filed a motion to reconsider, reasserting that her affidavits created a substantial controversy as to material facts. The trial court denied her motion. Plaintiff appeals.
Summary judgment should be granted only where it is clear there is no substantial controversy as to any material fact, and should be denied if facts are conflicting, or if reasonable people, in the exercise of fair and impartial judgment, might reach different conclusions concerning an issue. First Nat'l Bank &Trust;Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502. Plaintiff's motion to reconsider is the functional equivalent of a motion for new trial, see Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, 681 P.2d 757; therefore, our standard of review here is abuse of discretion, Graves v. Lewis, 1958 OK 176, 327 P.2d 672.
Normally, when a patient sues a physician for failure to properly diagnose or treat the patient, the issue of fact is one of science and must be established and determined upon the testimony of skilled, professional witnesses. White v. Burton, 1937 OK 381, 71 P.2d 694 (syllabus 1 by the court). In other words, the rule in medical malpractice cases is that a physician's negligence must ordinarily be established by expert medical testimony. Harder v. F.C. Clinton, Inc., 1997 OK 137, n.30, 948 P.2d 298. A plaintiff has the burden of proving through expert testimony: (1) the standard of medical care required of physicians, (2) that a duty existed and was breached, and (3) that this breach of duty resulted in harm to the plaintiff. See Grayson v. State, 1992 OK CIV APP 116, 12-13, 838 P.2d 546, 549.
Plaintiff essentially asserts she has satisfied this rule by introducing Dr. Kroft's affidavit, in which he generally opines that all the defendants were negligent and all caused Plaintiff's mother's injury . We hold that the affidavit is not sufficient to satisfy the rule.
In Grayson, the plaintiff's only expert opined that the patient died in the hospital of a drug overdose. In holding that the trial court had correctly sustained the defendants' demurrers, the Court of Civil Appeals observed:
There is a total lack of evidence, however, in the instant case showing the required standard of care, [or breach or causation]. . . . [The expert witness] failed to give an opinion as to what type of care would come within the national standard of care [which is used to measure the appropriate standard of care of physicians in Oklahoma], or the care which would be insufficient to meet that standard. Id. at 13, 838 P.2d at 550.
Similarly, Plaintiff has failed to produce any evidence showing the required standard of care. The rationale for this rule is that a trier of fact must
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