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Benson v. Tkach3/20/2001
have sufficient technical and scientific testimony at its disposal to answer a scientific and technical question of fact. Boxberger v. Martin, 1976 OK 78, 14, 552 P.2d 370, 373. Dr. Kroft's blanket statement opining liability, without providing any information as to the required standard of care, and without offering any reason for his conclusions, is simply not sufficient to satisfy the rule. In regard to the affidavit's failure to offer reasons, the Oklahoma Supreme Court has recognized that:
The reasons given in support of the opinions rather than the abstract opinions are of importance, and the opinion is of no greater value than the reasons given in its support. If no rational basis for the opinion appears, or if the facts from which the opinion was derived do not justify it, the opinion is of no probative force, and it does not constitute evidence sufficient to authorize submission of the issue to the jury. . . . Downs v. Longfellow Corp., 1960 OK 107, 351 P.2d 999 (quoting 32 C.J.S. Evidence ยง 569). We conclude Dr. Kroft's affidavit is insufficient to satisfy the rule.
However, we nonetheless agree with Plaintiff that summary judgment is inappropriate. While expert testimony is ordinarily required in cases involving medical negligence, courts have made exceptions to that rule. In Boxberger, 1976 OK 78, 14, 552 P.2d at 373, after referring to the rule requiring expert medical testimony, the Oklahoma Supreme Court explained, "for every rule of law there must be a rational reason. It is obvious that the trier of fact must have sufficient technical and scientific testimony at his disposal to answer a scientific and technical question of fact." However, "when a physician's lack of care has been such as to require only common knowledge and experience to understand and judge it, expert medical testimony is not required to establish that care." Id. The court explained that the need for expert testimony is limited to establishing an appropriate standard of care; however, the court also stated that an expert opinion may be necessary to show the proper standard of care. Id. at 14, 17, 552 P.2d at 373-74. The court did not state that expert testimony is always necessary to show the appropriate standard of care.
According to Plaintiff's affidavit, Dr. Tkach refused to perform additional surgery to allow her mother's infected area to heal because, "'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." Reasonable persons could infer from this remark and the surrounding circumstances that Dr. Tkach did not provide what he considered proper treatment because of financial considerations.
In some respects, the instant case is similar to Robertson v. LaCroix, 1975 OK CIV APP 14, 534 P.2d 17, which also involved a medical malpractice lawsuit and a statement from a doctor regarding a patient's treatment. There, the plaintiff testified the doctor told her "he just made a mistake and got over too far" during surgery. The Court of Civil Appeals held that statement constituted an extra-judicial admission of negligence tending, when combined with additional evidence, to establish causation. Id. at 24-26, 534 P.2d at 22. The Court further held that the plaintiff had sustained her burden of producing expert evidence establishing the medical standard in the community, because the statement adequately established the prevailing standard of medical practice. Id. at 27, 534 P.2d at 22. The Court reversed the trial court's decision granting a demurrer, and remanded the matter for a new trial.
In Robertson, there was additional evidence tending to show causation. Nevertheles
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