THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , Tara Carver v. Leigh F. Wheeler, M.D. & a., the court on May 7, 2014, issued the following order: The plaintiff, Tara Carver, appeals the trial court s order granting summary judgment in favor of the defendants, Leigh F. Wheeler, M.D., Granite State Emergency Physicians, P.C., and Catholic Medical Center, on her claim for medical malpractice. She argues that the trial court erred in ruling that: (1) her expert s deposition testimony was insufficient as a matter of law to raise a genuine issue of material fact as to causation; and (2) her expert is not qualified to render an opinion on causation in this case. We reverse and remand. The plaintiff first argues that the trial court erred in ruling that her expert s deposition testimony was insufficient as a matter of law to raise a genuine issue of material fact as to causation. A moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. RSA 491:8-a, III (2010). [T]he adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial. RSA 491:8-a, IV (2010). We review the trial court s grant of summary judgment by considering the affidavits and other evidence, and the inferences properly drawn from them, in the light most favorable to the non-moving party. Beckles v. Madden, 160 N.H. 118, 122 (2010). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. at 123 (quotation omitted). We review the trial court s application of law to the facts de novo. Id. The trial court found the following facts to be undisputed for purposes of its summary judgment order. On Thursday, August 6, 2009, at approximately 9:00 p.m., the plaintiff presented to the Catholic Medical Center Emergency Department complaining of back pain. She was evaluated by Leigh F. Wheeler, M.D., an emergency physician, who diagnosed low back pain with probable strain. At that hour, Magnetic Resonance Imaging (MRI) was unavailable at Catholic Medical Center, and Dr. Wheeler discharged the plaintiff without making any arrangements for an MRI. Dr. Wheeler advised the plaintiff to follow up with her primary care physician, which she did not do.

2 On Tuesday, August 11, 2009, the plaintiff presented to the Cheshire Medical Center Emergency Department complaining of back pain and loss of bladder and bowel function, among other complaints. She was transferred to Dartmouth-Hitchcock Medical Center, where an MRI was performed. The MRI revealed a large herniated disc at the L5-S1 level and cauda equina syndrome, which required surgery. Although surgery was performed that day, the plaintiff suffers permanent and ongoing disabilities, including bladder and bowel dysfunction. The plaintiff filed suit against the defendants alleging that they were negligent in their medical care. Specifically, she alleges that Dr. Wheeler was negligent in failing to promptly arrange for an MRI to be conducted either on the evening of August 6, 2009, when she presented to the emergency department, or the following day, Friday, August 7, She alleges that if Dr. Wheeler had arranged for a prompt MRI, then surgery would have been performed earlier than Tuesday, August 11, 2009, and she would not have sustained the injuries she sustained. The plaintiff disclosed as her expert Diane Sixsmith, M.D., the Chairman of the Department of Emergency Medicine at the New York Hospital Medical Center of Queens. Following Dr. Sixsmith s October 16, 2012 deposition, the defendants moved for summary judgment, contending that Dr. Sixsmith s deposition testimony was insufficient to establish the necessary causal connection between Dr. Wheeler s allegedly negligent care and the plaintiff s injuries. Over the plaintiff s objection, the trial court granted the motion, ruling that the expert s deposition testimony was insufficient as a matter of law to prove proximate causation. The trial court also concluded that the plaintiff s expert is not qualified to render an opinion on causation. On appeal, the plaintiff argues that the trial court erred in granting summary judgment because the record shows that Dr. Sixsmith s testimony establishes a genuine issue of material fact as to whether Dr. Wheeler s alleged negligence proximately caused injuries that would not otherwise have occurred. A negligence action based upon a claim of medical malpractice is governed by RSA chapter 507-E (2010). RSA 507-E:2 provides in part: I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses: (a) The standard of reasonable professional practice in the medical care provider s profession or specialty thereof, if any, at the time the medical care in question was rendered; and 2

3 (b) That the medical care provider failed to act in accordance with such standard; and (c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred. Under this standard, the plaintiff must produce sufficient evidence that the defendants negligence proximately caused her injuries. Beckles v. Madden, 160 N.H. at 124. In medical malpractice cases, expert testimony is required to establish proximate cause. Id. at 125. A medical expert s competent opinion that the defendant s negligence probably caused the harm establishes the quantum of expert testimony necessary. Goudreault v. Kleeman, 158 N.H. 236, 246 (2009). The plaintiff need only show with reasonable probability, not mathematical certainty, that but for the defendant s negligence, the harm would not have occurred. Id. (quotation omitted). Medical experts need not use specific words or phrases that mirror the statutory standard in order to furnish sufficient evidence to support causation. Beckles v. Madden, 160 N.H. at 124. Ultimately, resolution of the question of proximate cause is generally for the trier of fact. Id. The defendants argue that the testimony of the plaintiff s expert was insufficient to establish a genuine issue of material fact as to proximate cause because Dr. Sixsmith was unable to state whether surgery would have been performed earlier than Tuesday, August 11, 2009, had Dr. Wheeler promptly arranged for an MRI. The defendants rely in part upon the following exchanges during Dr. Sixsmith s deposition: DEFENSE COUNSEL: And do you know one way or the other whether a neurosurgeon at Dartmouth evaluating this patient on Friday the 7 th would have concluded that she needed surgery over the next two to three days, it couldn t wait until the following week? DR. SIXSMITH: And I m not a neurosurgeon; so I would have to defer to some neurosurgeon on that issue..... DEFENSE COUNSEL: So in terms of the actual timing, just so we have this clear on the record, you re not in a position to testify as to whether or not this patient would have ended up having surgery by a neurosurgeon earlier than Monday night, correct? DR. SIXSMITH: That s correct. 3

4 The defendants also argue that Dr. Sixsmith was unable to state whether Dr. Wheeler s alleged negligence proximately caused injuries which would not otherwise have occurred. The defendants rely in part upon the following exchange: DEFENSE COUNSEL: And in terms of her ultimate outcome from a physical standpoint, I take it, you would defer to neurosurgery on whether surgery, let s say, late Monday night would have resulted in a different outcome for her than she has now? DR. SIXSMITH: Yes. The plaintiff counters that in response to questions from her counsel during the deposition, Dr. Sixsmith clarified her position, which is that surgery would have been performed earlier than Tuesday, August 11, 2009, had Dr. Wheeler promptly arranged for an MRI. The plaintiff relies in part upon the following testimony: PLAINTIFF S COUNSEL: Good. Given your general understanding of when surgery is indicated for cauda equina syndrome, do you have an opinion as to whether the standard of care would have indicated emergency surgery for Ms. Carver on the 7 th assuming that an MRI had been done showing a herniated disc? DEFENSE COUNSEL: Same objection, lack of foundation as to neurosurgery. DR. SIXSMITH: Yes. It s my opinion that emergency surgery would have been done on Friday. PLAINTIFF S COUNSEL: Could there be any medical reason not to do emergency surgery under those circumstances? DR. SIXSMITH: Well, you know, my experience of dealing with neurosurgeons for more than 30 years is that they want the best outcome for their patient as possible, that the nervous system is particularly fragile in terms of its ability to sustain damage or to regenerate, and hence, they operate as early as possible with the best possible outcome. The plaintiff also relies upon the following exchanges between defense counsel and Dr. Sixsmith: 4

5 DEFENSE COUNSEL: She ended up having surgery on the 11 th, I believe, in this case, the following Tuesday. If you know one way or the other, would she have had surgery before the 11 th if she had an MRI on Friday? DR. SIXSMITH: Well, yes, because she s presenting with neurological symptoms and a positive scan and, as is accepted, I think, by everybody, the earlier you intervene, the better the outcome. And my presumption is she would have ended up where she did end up, which is Dartmouth-Hitchcock which is a major medical center that has the capacity to do surgery 24 hours a day. There would be no reason she couldn t have been operated on on Friday..... DEFENSE COUNSEL: Do you know when the evaluation would have taken place; would it be Friday, Saturday, or Sunday, do you know? DR. SIXSMITH: It would be when she arrived at Dartmouth- Hitchcock. DEFENSE COUNSEL: And do you know whether that neurosurgeon would have felt that surgery was necessary? DR. SIXSMITH: No. DEFENSE COUNSEL: So DR. SIXSMITH: Only in that what I just told you, we all know that the best outcome is earlier intervention. We all know that the presumption is the scan would have been positive; the presumption is he would want to do it before the weekend so he could have his weekend off. DEFENSE COUNSEL: You don t know that, right? DR. SIXSMITH: Well, I don t know, I ve only been dealing with specialists for 39 years; so, yeah, I do kind of know that. In addition, the plaintiff argues that Dr. Sixsmith s testimony was sufficient to create a genuine issue of material fact as to whether Dr. Wheeler s alleged negligence proximately caused injuries which would not otherwise have occurred. The plaintiff relies upon the following exchange during Dr. Sixsmith s deposition: 5

6 DEFENSE COUNSEL: So even if Dr. Wheeler had held the patient overnight and had an MRI done on the 7 th and even if that had led to evaluation by a neurosurgeon that day, we can t say, as a matter of medical probability, whether she would have been operated on earlier in this case, correct? DR. SIXSMITH: Oh, I think we can say with reasonable medical probability she would have been operated on before she was operated on because she would have been at Dartmouth- Hitchcock where people could have been observing her and evaluating her. And certainly before the night when she s developing weakness and urinary incontinence let s hope somebody s on board by that point. Dr. Sixsmith also testified as follows: DEFENSE COUNSEL: What deficits would Ms. Carver have still experienced even if she had been operated on on, let s say, Friday or Saturday? DR. SIXSMITH: I can t say for certain because we don t have an exam of her on Friday, but if she had the same exam that she had on Thursday evening, I don t think she d have any deficits. Dr. Sixsmith also testified that surgery on Friday would have not resulted in a woman who now has to self-catheterize, walks with a limp, and is on total disability. The plaintiff argues that any apparent inconsistencies in Dr. Sixsmith s deposition testimony resulted from the form of defense counsel s questions, which were posed in terms of the actual timing, and in terms of whether Dr. Sixsmith knew one way or the other when surgery would have taken place had Dr. Wheeler promptly arranged for an MRI. She argues that Dr. Sixsmith s answers were appropriate because she could not predict, with absolute certainty, what would have occurred but for Dr. Wheeler s alleged negligence. The trial court noted that Dr. Sixsmith opined that a neurosurgeon, viewing the MRI on Friday, would have performed surgery in time to prevent the plaintiff s injuries. Nevertheless, the court found Dr. Sixsmith s testimony to be insufficient because she offered no basis for that opinion. We have held that [o]bjections to the basis of an expert s opinion go to the weight to be accorded the opinion evidence, and not to its admissibility. Goudreault v. Kleeman, 158 N.H. at 248 (quotation omitted). Moreover, summary judgment should not be applied to foreclose the plaintiff from submitting evidence on the factual assumptions underlying the expert s opinions. Beckles v. Madden, 160 N.H. at 129. Any inconsistencies in the expert s testimony also go to the weight 6

7 and credibility of her opinion, rather than its sufficiency. See Goudreault v. Kleeman, 158 N.H. at 248. Construing all inferences in the plaintiff s favor, as we must, we conclude that the expert s testimony raises a genuine issue of material fact as to whether, as a proximate result of Dr. Wheeler s alleged negligence, the plaintiff suffered injuries which would not otherwise have occurred. See RSA 507-E:2, I(c). Accordingly, we conclude that the trial court erred in ruling that Dr. Sixsmith s testimony was insufficient to show that there is a genuine issue for trial. See Beckles v. Madden, 160 N.H. at 124. The plaintiff next argues that the trial court erred in concluding that Dr. Sixsmith is not qualified to render an opinion on proximate cause in this case. A witness is qualified as an expert by knowledge, skill, experience, training, or education. Goudreault v. Kleeman, 158 N.H. at 245; N.H. R. Ev We review the trial court s determination that a witness is unqualified to testify as an expert for an unsustainable exercise of discretion. Smith v. HCA Health Servs. of N.H., 159 N.H. 158, 162 (2009). The trial court concluded that Dr. Sixsmith is not qualified because she is not competent to render an opinion on whether a neurosurgeon evaluating the plaintiff on Friday would have determined urgent decompression was necessary. The defendants argue that the trial court s ruling is correct, relying in part on the following exchange during Dr. Sixsmith s deposition: DEFENSE COUNSEL: Would a neurosurgeon feel that a patient needs emergent surgical decompression if they do not have objective physical findings like motor weakness or sensory loss? DR. SIXSMITH: You would have to ask the neurosurgeons..... DEFENSE COUNSEL: Right. So you re not the person who actually makes the decision as to whether urgent decompression is necessary for a back pain patient, correct? DR. SIXSMITH: That s correct. DEFENSE COUNSEL: And you re not qualified to make that decision, correct? DR. SIXSMITH: Correct..... DEFENSE COUNSEL: From your own personal standpoint not being a neurosurgeon and not making that decision, the decision as to which patients need urgent decompression, you re 7

8 not in a position to give expert testimony as to what constellation of signs or symptoms a neurosurgeon would need to see to decide that a patient needs urgent decompression, correct? DR. SIXSMITH: As expert testimony, correct, only my experience in these situations. The trial court noted that Dr. Sixsmith repeatedly testified in response to many of defense counsel s questions that she is not a neurosurgeon and that she would have to defer to a neurosurgeon on certain issues. The trial court also found Dr. Sixsmith s experience with cauda equina syndrome to be lacking, having only diagnosed the syndrome four to five times over the course of her lengthy career. The plaintiff argues that Dr. Sixsmith responded appropriately to defense counsel s questions because the answers required neurosurgery expertise, and she is not a neurosurgeon. Moreover, as the plaintiff notes, the defendant s expert neurosurgeon, Jeffrey Arle, M.D., testified at his deposition that, as a resident, he may have been involved in cauda equina syndrome surgery only once or twice, and that in his thirteen years of practice, he had operated on patients with cauda equina syndrome maybe twice. Similarly, Dr. Wheeler testified at his deposition that [y]ou see one or two of these [cases] in a career maybe. The plaintiff also argues that the trial court erred because the issue is not whether Dr. Sixsmith is qualified to testify that a neurosurgeon evaluating her on Friday would have determined that urgent decompression was necessary, because the plaintiff does not allege that the procedure needed to be performed within the hour, or even the day. Rather, she argues, the issue is whether Dr. Sixsmith is qualified to testify that a neurosurgeon would have performed surgery in time to prevent her injuries. On this issue, Dr. Sixsmith testified relative to her qualifications as follows: DEFENSE COUNSEL: She ended up having surgery on the 11 th, I believe, in this case, the following Tuesday. If you know one way or the other, would she have had surgery before the 11 th if she had an MRI on Friday? DR. SIXSMITH: Well, yes, because she s presenting with neurological symptoms and a positive scan and, as is accepted, I think, by everybody, the earlier you intervene, the better the outcome. And my presumption is she would have ended up where she did end up, which is Dartmouth-Hitchcock which is a major medical center that has the capacity to do surgery 24 hours a day. There would be no reason she couldn t have been operated on on Friday. 8

9 In her deposition errata sheet, Dr. Sixsmith supplemented her testimony on this point as follows: If she hadn t had surgery for any reason on Friday, still she would have been carefully monitored in the hospital to prevent the type of damage that would occur if this syndrome progresses and is untreated. As to her qualifications, Dr. Sixsmith further testified as follows: PLAINTIFF S COUNSEL: Could there be any medical reason not to do emergency surgery under those circumstances? DR. SIXSMITH: Well, you know, my experience of dealing with neurosurgeons for more than 30 years is that they want the best outcome for their patient as possible, that the nervous system is particularly fragile in terms of its ability to sustain damage or to regenerate, and hence, they operate as early as possible with the best possible outcome..... DEFENSE COUNSEL: Whether earlier surgery would have made a difference in any particular case, you would ask the neurosurgical service for that information? DR. SIXSMITH: No, I wouldn t. I would depend on my 39 years as an emergency physician to know what I have said four times, that in this particular instance and in many others in emergency medicine when you intervene earlier, you have a better outcome. I don t need a neurosurgeon to tell me that. DEFENSE COUNSEL: You re telling us today that every early intervention makes a difference? DR. SIXSMITH: In every condition, no, but in many neurological conditions, this one in particular, early intervention makes a big difference. DEFENSE COUNSEL: And DR. SIXSMITH: Everything I have learned, and I can t state that any better. I m not a neurosurgeon, but everything I ve learned and everything that I m supposed to do as an emergency physician tells me that. And that is what I teach, and that is what I expect my physicians who work under me to do and recognize. 9

10 We agree with the plaintiff that the issue is whether Dr. Sixsmith is qualified to testify that a neurosurgeon would have performed surgery in time to prevent the plaintiff s injuries and that, based upon this record, she is qualified to testify on that issue by virtue of her knowledge, skill, experience, training, and education. See Goudreault v. Kleeman, 158 N.H. at 245; N.H. R. Ev Accordingly, we conclude that the trial court unsustainably exercised its discretion in finding that Dr. Sixsmith is not qualified to render an opinion on proximate cause in this case. See Smith v. HCA Health Servs. of N.H., 159 N.H. at 162. HICKS, LYNN, and BASSETT, JJ., concurred. Reversed and remanded. Eileen Fox, Clerk 10