Common Sense and its Exceptions

By Andrew Delaney

Taylor v. Fletcher Allen Health Care, 2012 VT 86

Being a pro ser ain’t easy.  

Plaintiff sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following lumbar-spine surgery.   She didn’t disclose any expert witnesses, and so FAHC moved for summary judgment.  The trial court granted the motion on the basis that Plaintiff couldn’t prove her claims without expert testimony.  A somewhat-divided SCOV affirms.  

Let’s look to see why.

Plaintiff had serious lower-back problems.  She had surgery, which fused part of her lower spine with internal hardware.   She started to recover, but a few days after the surgery she fell in the bathroom and (it seems) injured the surgery site.  Plaintiff blamed her nurse, who she said withdrew support with no warning.  Plaintiff claimed severe pain and that FAHC was unresponsive to her complaints.

Turns out that some of the hardware had come loose.  So Plaintiff had a second surgery, which was successful.  Then she filed suit.  She claimed that FAHC was negligent for: (1) in allowing her to fall onto the toilet; (2) for failing to catch the hardware failure; and (3) for not responding to her pain complaints.  She also alleged emotional distress resulted from FAHC’s negligence.

So FAHC answered and the discovery process began.  Plaintiff filed a proposed discovery schedule with May 1, 2011 as her deadline for expert disclosure.  The court approved the discovery schedule.  Plaintiff did not disclose any experts.  So, FAHC moved for summary judgment, arguing that without expert testimony, Plaintiff’s claims failed as a matter of law. 

Plaintiff, more or less, said, “C’mon—this is obvious.  I fell on the toilet ‘cause the other nurse didn’t do her job like the ‘head nurse’ taught her.  This is common-sense stuff.”  Plaintiff also argued that the hospital failed to follow rules and guidelines, and that she didn’t need an expert to prove her case due to the “common-sense exception” to any required expert testimony. 

The trial court did not apply the common-sense-exception rule, and granted FAHC’s motion for summary judgment, ruling that “[w]ithout a medical expert, plaintiff cannot prove her case.  The time for disclosure of experts having passed, [FAHC] is entitled to summary judgment.”

On appeal, Plaintiff makes essentially the same argument: this is not rocket science, and she shouldn’t need Oppenheimer to prove her claims. 

As one of my co-authors has previously stated, the SCOV reviews a ruling on summary judgment using the we-do-what-we-want-on-de-novo standard.  Summary judgment is appropriate when (1) there is no genuine issue of material fact, and (2) one of the parties is entitled to judgment as a matter of law.   

The SCOV starts its analysis with the “common sense exception.”  The SCOV notes that it has never precisely articulated such a rule, but acknowledges that when something is obvious, then expert testimony might not be necessary. 

Now, some might say that the law is the exception to common sense, but that’s another matter entirely . . . .  (But seriously, I’m here all week folks!)

Back to the matter at hand.  The SCOV concludes that Plaintiff’s claims can’t be proven without expert testimony.  Plaintiff argued in her opposition that her care was not up to snuff.  That, says the SCOV requires an expert on nursing care to give the trial court and more specifically, the jury something on which to hang its hat. 

The SCOV focuses mostly on a gait-belt method for supporting a patient that it seems Plaintiff was arguing should’ve been used.  (We’ll hear more about this in the concurrence and dissent).  The SCOV concludes that “only testimony from an expert familiar with general nursing practices and the details of plaintiff’s medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case.”   The majority concludes that Plaintiff’s gait-belt-support argument—and any theories stemming therefrom—are specific to a certain method and need expert testimony, and the majority so limits its holding. 

Regarding the claim that FAHC was negligent in not discovering the faulty hardware, the majority holds that this is a claim that would absolutely require expert testimony for Plaintiff to meet her burden.  Without an expert, Plaintiff is up a certain kind of tributary of a river without a rowing device.  The majority notes that Plaintiff has a history of back problems and that the only way to establish that FAHC caused this specific problem through its medical negligence is with expert testimony.   

Plaintiff also alleges a cover-up by FAHC.  The majority notes that this was not raised below, but even with the leeway afforded pro se litigants, and assuming there was a cover up, Plaintiff’s claims would fail without an expert to explain causation. 

Finally, the majority rejects Plaintiff’s claim for negligent infliction of emotional distress (NIED) on the basis that if Plaintiff is unable to show negligence, she can’t prove NIED, which requires some underlying negligence. 

And so, the majority affirms. 

Justice Dooley concurs with the majority on all claims except Plaintiff’s claim that FAHC was negligent when she fell while attended by a nurse.   In Justice Dooley’s words: “The majority transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence on the strength of a pro se litigant’s passing reference to a ‘gait belt.’”

In Justice Dooley’s view, the essential issue is whether the nurse who was helping Plaintiff was lax in attending to the Plaintiff.  Justice Dooley cites several cases that stand for the proposition that a hospital is negligent when an attended patient falls.  He then picks on the majority a little bit, putting quotes around the word “complex” and using the word “multivariate,” which is a pretty fancy word.  

Justice Dooley writes: “Under the majority’s analysis, plaintiff’s claim would survive if she never mentioned the gait belt or the head nurse, but fails because she did.”  In Justice Dooley’s view, this claim is far from complicated.  Accordingly, he would reverse.  Justice Robinson joins the concurrence and dissent.

And so it goes.  Ever notice how lawyers can seem to make things incredibly more complicated than they need to be?  But as it turns out, we actually do have a reason for doing that.  At least most of the time.