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Provost v. Fletcher Allen Health Care10/6/2005
ENTRY ORDER
1. Plaintiffs Dale and Brenda Provost appeal a decision of the Chittenden Superior Court granting defendant Fletcher Allen Health Care, Inc.'s (FAHC) motion for summary judgment in a medical malpractice suit. We agree that the trial court should not have granted summary judgment, and therefore reverse and remand.
2. On October 26, 2000, plaintiff Dale Provost went to the Colchester Family Health Care Clinic, which is owned and operated by FAHC, to receive treatment for a severe allergic reaction. Dr. Vivian Esparza, M.D., treated Mr. Provost, and, among other things, administered an intramuscular injection of benadryl into his left arm. During the shot, Mr. Provost said "ouch." Dr. Esparza asked if the shot hurt and then said, "perhaps I touched the bone with the needle. I'll pull it back out a little bit." She then finished the injection. Shortly after receiving the shot and returning to his home, Mr. Provost began experiencing numbness and pain in his left arm. He contacted the Clinic and was told to return to see Dr. Esparza the next day. After seeing Mr. Provost at the follow-up appointment on October 27 and consulting with a neurologist, Dr. Esparza concluded that he most likely had a radial nerve palsy "secondary to hematoma beneath the neuronal sheath from yesterdays benadryl injection."
3. In November 2001, Dr. John Johansson, D.O., evaluated Mr. Provost. Dr. Johansson determined that Mr. Provost had sustained permanent, significant impairment to the radial nerve in his left arm as a result of the benadryl injection.
4. In December 2002, Mr. Provost and his wife filed suit, alleging that Dr. Esparza had negligently administered the injection, damaging the radial nerve, and that FAHC was vicariously liable under the doctrine of respondeat superior.
5. FAHC filed a motion for summary judgment in December 2003, contending that plaintiffs had failed to produce sufficient expert testimony to establish the elements of medical malpractice. Plaintiffs then designated Dr. Johansson as their medical expert, filed a supplemental interrogatory response, and filed a brief in opposition to summary judgment supported by an affidavit from Dr. Johansson. Dr. Johansson based the statements in his affidavit upon his review of Mr. Provost's medical records, Dr. Esparza's deposition transcript, and his November 2001 examination of Mr. Provost.
6. Specifically, Dr. Johansson opined, "to a reasonable degree of medical certainty," that "Dr. Esparza failed to exercise the appropriate degree of care" when she administered the benadryl injection because she "insert the needle to the point it made contact with the bone of the arm and injured the radial nerve." He also stated that as a "direct result" of the injection, Mr. Provost "suffered significant nerve injury to the radial nerve in his left arm," equating to "28% whole person impairment." Finally, he concluded that Dr. Esparza's failure to exercise the appropriate degree of care was a proximate cause of Mr. Provost's injuries, without which the injuries would not have occurred.
7. In response, FAHC challenged whether Dr. Johansson, who is an osteopathic physician with a practice in sports medicine, was competent to serve as an expert in the case. FAHC also questioned whether Dr. Johansson's statements were made upon personal knowledge. Finally, FAHC argued that summary judgment was required because Dr. Johansson's affidavit did not articulate a relevant standard of care, offer any details on how Dr. Esparza's treatment breached the standard of care, or establish that a breach of the requisite standard of care proximately caused Mr. Provost's injury. Plaintif
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