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Roberson v. Jeffrey M. Waltner1/14/2005
Mandate Issued: 02/18/2005
AFFIRMED
Plaintiff, Letha Roberson, filed this action in medical malpractice alleging Defendant, Jeffrey M. Waltner, improperly performed a hip replacement on her left hip. She alleged that as a proximate and direct result of the negligence of Defendants, she had a permanent, disfiguring disability, to-wit, severe shortening of her left leg with severe complications. In her affidavit she stated she had obtained a written opinion from a qualified expert that clearly supported a finding the acts or omissions of the health care providers against whom the action was brought constituted professional negligence. She attached a letter from an RN, BSN supporting her claim.
Defendants filed a motion to dismiss, claiming the letter from the RN did not comply with the requirement of 63 O.S. 2003 Supp., ยง1-1708.1E that she obtain a written opinion from a qualified expert. They alleged a nurse is not a qualified expert. After argument, the trial court overruled Defendants' motion. Defendants then answered, denying their care and treatment of Plaintiff was not within acceptable standards of care and that nothing in their care proximately caused or contributed to any alleged injuries suffered by Plaintiff.
After discovery, Defendants filed a motion for summary judgment, pointing out Plaintiff's responses to their interrogatories did not name any qualified expert that could testify to the malpractice. They listed undisputed facts, never contested by Plaintiff. They attached an affidavit from Dr. Waltner stating that at no time did his medical management of Plaintiff fall below accepted standards of medical care. In addition they attached Plaintiff's medical records.
Plaintiff did not file a response to Defendants' motion and the trial court granted it. Because Plaintiff failed to respond to the motion for summary judgment, she presented no evidence to controvert Defendants' evidence, in the form of Dr. Waltner's affidavit, Plaintiff's medical records, and her answers to the interrogatories. However, Defendants were not entitled to summary judgment solely because Plaintiff did not respond. There can be no summary judgment by default. Even if the party against whom summary judgment is sought files no response, the trial court must ensure that the motion is meritorious. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682. The Court in Spirgis stated:
The trial court must examine the evidentiary materials supporting the motion and if all the material facts are addressed and are supported by admissible evidence, those facts are admitted and judgment for the movant is proper. However, if the movant has not addressed all material facts, or if one or more such facts is not supported by admissible evidence, judgment for the movant is not proper.
In order to determine whether the trial court's grant of summary judgment was proper, we must examine the elements of a medical malpractice claim. Three evidentiary elements are essential to a prima facie case of negligence: (1) a duty owned by the defendant to protect the plaintiff from injury, (2) a failure properly to exercise or perform that duty, and (3) an injury to plaintiff proximately caused by the defendant's breach of that duty. Nealis v. Baird, 1999 OK 98, 996 P.2d 438.
It is well settled that in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence. If the origin of the injury is subjective or obscure and not readily apparent to a layman, or if there are several equally probable causes of the condition, testimony of a qualified
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