On Appeal from Superior Court, Chittenden Unit, Civil Division April Term, 2012
The opinion of the court was delivered by: Skoglund, J.
Taylor v. Fletcher Allen Health Care (2011-317)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. SKOGLUND, J. Plaintiff Sally J. Taylor sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following a surgery performed on her lumbar spine. After plaintiff failed to disclose any expert witness in response to discovery requests, FAHC moved for summary judgment, arguing that plaintiff's claims failed as a matter of law without an expert witness. The trial court granted FAHC's motion. We agree with the trial court that this case is sufficiently complex that plaintiff cannot prove her claims without expert testimony. Accordingly, we affirm.
¶ 2. Plaintiff presented to FAHC with "severe pain [and] severe disability" in her lower back and underwent surgery in which doctors fused part of her lower spine with internal hardware. During the first few days following the surgery, plaintiff made reasonable progress toward recovery. On the third day, however, a nurse was assisting plaintiff in moving to the bathroom when plaintiff alleges that the nurse "withdrew support and assistance . . . unexpectedly and without warning and caused [p]laintiff to fall violently on to the toilet." Following this incident, plaintiff experienced severe pain at the surgical site, and claimed that FAHC providers did not adequately address her pain complaints.
¶ 3. Due to her behavior at this time, plaintiff was referred for a psychiatric consultation, in which the psychiatrist noted that plaintiff complained of poor sleep and back pain. Her surgeon noted that plaintiff's alignment appeared to have changed, and suspected that one of the screws in her spine had perhaps loosened or even been pulled out. Accordingly, plaintiff underwent a second surgery, and the surgeon discovered that the hardware in her spine had loosened.
¶ 4. Following the successful second surgery, plaintiff filed suit. Unable to find an attorney to represent her, plaintiff proceeded with the suit pro se. In her complaint, plaintiff claimed that FAHC had been negligent in allowing her to fall onto the toilet, for "failing to recognize and diagnose the failure of the hardware" that had been installed during the first surgery, and for its treatment of plaintiff "in connection with her pain complaints following the fall." She also claimed that FAHC's negligence caused her to suffer severe emotional distress. FAHC answered the complaint and, in its discovery request, asked plaintiff to identify her expert witnesses. Plaintiff never responded. Following attempts by FAHC and the court to craft a discovery schedule, plaintiff eventually filed a proposed discovery schedule with May 1, 2011 as her deadline for expert disclosure. The court approved this discovery schedule.
¶ 5. Plaintiff did not comply with her May 1 deadline for expert disclosure. So, nearly eight months after suit was filed, FAHC moved for summary judgment, arguing that without expert testimony, plaintiff's claims failed as a matter of law. Plaintiff's opposition to the motion argued that she did not need expert testimony because her case fell within the "common sense exception rule." In essence, plaintiff argued that the alleged breach of medical care was so obvious that it may be understood by a layperson without the aid of expert testimony. She argued that "hiding and omitting major X-Ray results is all so straight forward and obvious that it may be understood by a lay person such as myself"; that "[t]o the lay person . . . there appears to be an ongoing cover up after the bathroom fall"; and that her claim of negligent infliction of emotional distress "is apparent even to a lay person, such as myself. I repeatedly beg, cry and plea for proper medical care as I state, 'there is something wrong with my spine after the fall.' "
¶ 6. In describing the events leading up to her fall onto the toilet, plaintiff wrote:
I was taught a well place procedure technique and drill to use during bathroom toilet usage. I was told the importance of the nurse assisting me, and this was physical manual labor by the nurse. The nurse was to hold, lift and support me upon and off the toilet. The head nurse spent a lot of time with me and the drill technique because of its great importance to safety. . . . Then another nurse came on duty and she neglected to use the procedure and because of her neglect I had a hard fall. The hospital had specific nursing management standards, guidelines and protocols which failed to be followed. The responsible nurse deviated from the accepted standard of nursing care.
In this description, plaintiff ascribed fault and cause to the hearsay statements of another nurse but offered no competent evidence sufficient to meet the requirements of expert disclosure or Vermont Rule of Civil Procedure 56. She further stated that "the gait belt device was not used during my hospital stay," suggesting that the "head nurse" did not use the device either. The trial court disagreed with plaintiff's position regarding 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."
¶ 7. On appeal, plaintiff raises essentially the same argument as in her opposition to the motion for summary judgment--that she should be permitted to proceed without an expert witness because her claims are so simple that they are easily understood by laypeople. She reasons that this case is a matter of common knowledge because anyone can understand her fall caused her back surgery failure. She also ...