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Balfour v. Kimberly Home Health Care7/12/2005
FOR PUBLICATION
STATEMENT OF THE CASE
Jacqueline L. Balfour and Douglas M. Balfour appeal from the trial court's grant of summary judgment in favor of Kimberly Home Health Care, Inc. d/b/a Olsten Certified Healthcare Corp. a/k/a Olsten Health Services, Inc. ("Olsten") in this negligence action. The Balfours present two dispositive issues for our review:
1. Whether the trial court erred when it concluded that the doctrine of res ipsa loquitur does not apply in this case.
2. Whether the trial court erred when it concluded that there is no genuine issue of material fact precluding summary judgment in favor of Olsten.
We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On March 3, 1999, Jacqueline underwent liposuction surgery on her abdomen. Dr. Kimberly Short performed the surgery. Jacqueline experienced complications following the procedure, including an interruption of blood supply to her abdominal wall. As a result, Dr. Short opened the surgical incision in Jacqueline's abdomen and left it open, but covered with dressings. Thereafter, Olsten provided home health care for Jacqueline, who could not change her dressings herself. Sharon Gilbert, R.N., an Olsten employee, visited Jacqueline and changed her dressing once on March 12, twice a day on March 13 and 14, and once during the morning of March 15. Each dressing required that Jacqueline's open wound be packed with "wet to dry 4x4's." Appellant's App. at 44. Gilbert did not maintain a count of the 4x4's placed and removed during those dressing changes.
During the afternoon on March 15, Jacqueline had an appointment with Dr. Short, who changed Jacqueline's dressing. That dressing consisted of eighteen 4x4's. On March 16, Gilbert counted the eighteen 4x4's as she removed them, and when she repacked the wound, she used Kerlix gauze instead of 4x4's. Olsten did not treat Jacqueline after March 16, 1999, and none of the subsequent dressing changes involved packing the wound with 4x4's.
Jacqueline continued to have pain in her abdomen, and her wound was not healing properly. Accordingly, on July 22, 1999, Jacqueline underwent a woundoscopy performed by Dr. Michael Elmore. Dr. Elmore found and removed a 4x4 gauze from the base of a "tunnel" in Jacqueline's abdominal wall.
The Balfours filed a complaint against Olsten alleging that its negligence caused Jacqueline to suffer pain and delayed the healing of her abdominal wound. Olsten filed a summary judgment motion asserting that there is no issue of material fact regarding whether its alleged negligence proximately caused Jacqueline's injuries. In particular, Olsten designated evidence showing that Dr. Short examined Jacqueline's wound prior to the July 1999 woundoscopy and did not see any 4x4's in the wound. In their motion in opposition to summary judgment, the Balfours designated portions of Dr. Elmore's deposition, including his statement that the 4x4 that he found in the wound could have been placed in her abdomen at any time following her surgery.
The trial court granted Olsten's summary judgment motion and made the following conclusions:
1. There is no genuine issue of material fact that after the last care provided by Olsten Health Services, there existed no gauze in the open wound of Ms. Balfour.
2. Plaintiff is unable to meet the element of proximate cause as required under the tenets of negligence law, and Olsten is entitled to judgment as a matter of law.
3. Plaintiff has not shown exclusive control over the injuring instrumentality as required under the doctrine of res ipsa loquitur, and thu
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