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Trombley v. Starr-Wood Cardiac Group6/16/2000
ablish negligence. The superior court granted these motions, stating:
here is no expert testimony on some of the fundamental elements of plaintiffs' claims of medical malpractice. . . .
Although there is expert testimony from Dr. Anastassiou that the defendants' treatment of the plaintiff was negligent or below the acceptable standard of care, he does not testify that the treatment in any way caused the damages for which the plaintiff seeks to recover.
The Trombleys filed a motion to reconsider and the court ordered further briefing. After reviewing this briefing, the court affirmed its previous order and supplemented it with a memorandum of law and facts.
The Trombleys appeal.
III. DISCUSSION
A. Standard of Review
We review grants of summary judgment de novo. "We will uphold summary judgment only if the record presents no genuine issues of material fact and the moving party was entitled to judgment on the law applicable to the established facts." "The proffered evidence is to be viewed in the light most favorable to the party opposing the motion." The non-moving party is entitled to have "all reasonable inferences of fact drawn in its favor."
B. The Trial Court Erred in Granting Summary Judgment Because There Were Genuine Issues of Material Fact.
Alaska Statute 09.55.540 establishes the burden of proof in a medical malpractice action. It requires that the plaintiff establish (1) the standard of care or skill in the act complained of; (2) that the defendant lacked this skill level or failed to exercise this care; and (3) that this failure or lack of skill was the proximate cause of the plaintiff's injuries. Our decision in Kendall v. State, Division of Corrections held that expert testimony is needed to establish a medical malpractice claim:
In medical malpractice actions . . . the jury ordinarily may find a breach of professional duty only on the basis of expert testimony. The primary limitation to this rule is that expert testimony is not needed in non-technical situations where negligence is evident to lay people.
The trial court granted summary judgment against the Trombleys because there was a "lack of expert testimony in [their] case as to the crucial elements of a medical malpractice claim." Trombley argues that this ruling was erroneous because her experts' testimony established the necessary elements for her allegations (1) that the arterial bypass operation was negligently performed and (2) that the post-operative care of the donor site on her leg was negligent. We agree with Trombley and reverse summary judgment for each of the doctors.
1. There are triable issues of fact as to Dr. Ahmad's conduct.
In order to defeat summary judgment, Trombley must establish that there are material questions of fact as to whether a mistake was made, negligently causing injuries.
There is expert testimony that a mistake was made by Dr. Ahmad in bypassing the ramus intermedius. Drs. Peter Anastassiou and David Kurzrock testified that the second diagonal had been bypassed instead of the first. They reached these conclusions based on the "tenting" of the artery and because they had accounted for all of the grafts. Dr. Richard Anschuetz also suggested that the wrong vessel may have been bypassed.
Dr. Ahmad argues that there is no expert testimony establishing that, assuming such a mistake was made, it would have been negligent. However, Dr. Ahmad's own testimony establishes this point. At Dr. Ahmad's deposition, the following colloquies occurred:
Q: And you weren't about to admit that you goofed, are you
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