{ "id": 8204022, "name": "KAREN E. KENYON, Plaintiff-Appellant v. PAOLA M. GEHRIG, M.D. and THOMAS P. MORRISSEY, M.D., Defendants-Appellees", "name_abbreviation": "Kenyon v. Gehrig", "decision_date": "2007-06-05", "docket_number": "No. COA06-724", "first_page": "455", "last_page": "460", "citations": [ { "type": "official", "cite": "183 N.C. App. 455" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "270 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "520" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519725 ], "year": 1980, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0126-01" ] }, { "cite": "160 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "273 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575523 ], "year": 1968, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0439-01" ] }, { "cite": "336 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "118", "parenthetical": "citing Kekelis v. Machine Works, 273 N.C. 439, 442, 160 S.E.2d 320, 322 (1968)" }, { "page": "118" }, { "page": "118", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525060 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "691", "parenthetical": "citing Kekelis v. Machine Works, 273 N.C. 439, 442, 160 S.E.2d 320, 322 (1968)" }, { "page": "691" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0689-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "916", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "233", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "564 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079053 ], "year": 2002, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0015-01" ] }, { "cite": "557 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "172", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364551 ], "year": 2001, "pin_cites": [ { "page": "182", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0178-01" ] } ], "analysis": { "cardinality": 611, "char_count": 12175, "ocr_confidence": 0.734, "pagerank": { "raw": 8.206739789119035e-08, "percentile": 0.4765119510828624 }, "sha256": "558742a3d5fe25d55141ec0ada551b73ceacc09417eaff5ae7d6fc7d9ce9db18", "simhash": "1:931367c8071dccd9", "word_count": 1930 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "KAREN E. KENYON, Plaintiff-Appellant v. PAOLA M. GEHRIG, M.D. and THOMAS P. MORRISSEY, M.D., Defendants-Appellees" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 7 June 2004, Karen Kenyon (plaintiff) filed a medical malpractice suit against Paola Gehrig, M.D. (Gehrig), and Thomas Morrissey, M.D. (Morrissey) (together, defendants), alleging medical negligence in the use of a retractor during surgery. On 16 March 2006, the trial court entered an order granting defendants\u2019 motion for summary judgment. It is from this order that plaintiff now appeals.\nPlaintiff underwent surgery on 7 June 2001. Defendants performed three procedures on that day, only two of which were planned. About ten to fifteen minutes after the first incision, Morrissey used a Bookwalter retractor to keep the surgical wound open. At one point during the surgery, the retractor was removed and reinserted in order to reposition plaintiff. Defendants testified that they constantly checked the positioning of the retractor throughout the surgery to ensure that it did not apply undue pressure on plaintiff\u2019s femoral nerve.\nFollowing the surgery, plaintiff suffered a postoperative right femoral neuropathy. Plaintiff alleged medical negligence and filed suit. Defendants\u2019 motion for summary judgment was granted.\nOn appeal, plaintiff argues only that summary judgment was inappropriate because there were material facts in dispute. After fully reviewing the record, we hold that plaintiff failed to forecast sufficient evidence to raise a genuine issue of material fact. Accordingly, the trial court properly granted the motion for summary judgment.\nThis Court has recently outlined the proper standard of review:\nIn a medical malpractice action, plaintiff must demonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that defendant\u2019s treatment proximately caused the injury. To support his motion for summary judgment, defendant has the initial burden of showing either that plaintiff cannot produce evidence to support an essential element of his claim, an essential element of plaintiffs claim does not exist, or plaintiff cannot provide an affirmative defense that would save his claim. Once this initial burden is met, plaintiff must then produce a forecast of evidence showing the existence of a genuine issue of material fact with respect to the issues raised by the movant.\nHuffman v. Inglefield, 148 N.C. App. 178, 182, 557 S.E.2d 169, 172 (2001) (internal quotations and citations omitted).\nIn support of their motion for summary judgment, defendants offered the testimony of several expert witnesses. These witnesses testified that defendants\u2019 treatment of plaintiff met the standard of care. Moreover, defendants\u2019 expert witnesses stated that the type of injury that plaintiff suffered is a known risk of the procedure and can occur in the absence of negligence. The presentation of this evidence met defendants\u2019 initial burden of showing \u201cthat plaintiff cannot produce evidence to support an essential element of [her] claim . . . .\u201d Id. The burden therefore shifted to plaintiff to \u201cproduce a forecast of evidence showing the existence of a genuine issue of material fact....\u201d Id.\nPlaintiff contends that she presented such a forecast through the testimony of her expert witnesses. A review of the record, however, reveals that her experts were unable to state to any degree of certainty that her injury was causally connected to defendants\u2019 alleged negligence.\nPlaintiff relies on this Court for the proposition that because causation is an inference, drawn from the circumstances, \u201cproximate cause is normally a question best answered by the jury.\u201d Leatherwood v. Ehlinger, 151 N.C. App. 15, 24, 564 S.E.2d 883, 889 (2002). This is true; plaintiff must nevertheless provide a sufficient forecast of evidence to justify presentment to the jury. This plaintiff fails to do. Her. expert witnesses, while clearly opining that defendants are at fault, gave no concrete reasons for this belief.\nPlaintiff presented three expert witnesses\u2019 deposition testimony in her forecast of evidence. We will address each witness\u2019s testimony in turn.\nSamuel J. Williams, II, M.D. (Dr. Williams) admitted in his testimony that he assumed \u201cfrom the fact of injury that the self-retaining retractor was handled less than properly.\u201d He also admitted that there are cases in which the fact of injury does not represent a cause and effect relationship. Further, Dr. Williams testified that \u201c[t]he only fact [he relied on in forming his opinion of negligence] is that [plaintiff] came into the hospital apparently walking without need for assistance in any way and left the hospital having to use ... a cane, if not a walker.\u201d Finally, Dr. Williams testified that \u201c[i]t is possible [for the injury] to occur in the absence of negligence.\u201d\nPlaintiff also relied on deposition testimony from Stuart Battle, M.D. (Dr.\"Battle). Dr. Battle stated that he based his opinion that the retractor was improperly placed on the following facts:\nThe fact that [plaintiff] went into the operating room without a femoral neuropathy. The fact that she was under the direct control of the doctors who placed that retractor. The fact that it is well known . . . that these self-retaining retractors can, indeed, cause this if you are not careful. And the fact that she came out of that operating room with this injury.\nHe then asked defense counsel, \u201cWhat other explanation is there?\u201d Dr. Battle admitted that he assumed, based on the outcome of the surgery, that there was negligence. He also admitted that femoral nerve injury is a known risk of the procedure, and that, \u201cwithout specifying the conditions,\u201d \u201cthere are situations in which an injury can occur . . . without negligence.\u201d Though Dr. Battle acknowledged that \u201cthere was another possibility in this case\u201d for the cause of plaintiff\u2019s injury, he stated that he favored the retractor as the cause.\nFinally, plaintiff presented deposition testimony from Donald S. Horner, M.D. (Dr. Homer). Dr. Homer testified that it was his impression that the retractor had not been removed during plaintiff\u2019s shift in positions, and that the failure to remove the retractor at that time was his only criticism of defendants\u2019 handling of the procedure. Moreover, Dr. Horner stated that had the retractor been repositioned during the shift, the defendants\u2019 conduct would have complied with the appropriate standard of care. However, he also opined that any time that a patient experiences a permanent femoral injury after the use of a Bookwalter retractor, it must be the result of negligence. Dr. Homer admitted that he was not an expert in the area, and that there can be other causes of such an injury. He further admitted that the basis of his opinion was the fact of the injury itself and that but for that fact, he did not know that negligence had occurred.\nEssentially, all of plaintiff\u2019s experts testified that their opinions were based on the fact of the injury itself. Although they each, to varying degrees, put forth hypotheses as to the potential causes of the injury, none of them could point to any evidence of an act or omission, other than the existence of the injury itself, constituting negligence on the part of either defendant.\n[Our Supreme Court] has allowed \u201ccould\u201d or \u201cmight\u201d expert testimony as probative and competent evidence to prove causation. However, [that] Court has also found \u201ccould\u201d or \u201cmight\u201d expert testimony insufficient to support a causal connection when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\nYoung v. Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000) (citations omitted).\nHere, there are several theories presented to show that defendants could have been negligent. However, all of plaintiff\u2019s expert witnesses based their opinions only on the fact of the injury itself; their assignation of negligence on defendants\u2019 part constituted mere speculation.\nPlaintiff argues emphatically in her brief that she neither pled nor sought application of the doctrine of res ipsa loquitor. Indeed, the whole of her reply brief is dedicated to an attempt to show this Court why the doctrine is inapplicable. Plaintiff\u2019s insistence on the inapplicability of the doctrine is somewhat surprising, given this Court\u2019s statement that \u201cordinarily negligence must be proved and cannot be inferred from the fact of an injury . . . .\u201d Schaffner v. Cumberland County Hosp. System, 77 N.C. App. 689, 691, 336 S.E.2d 116, 118 (1985) (citing Kekelis v. Machine Works, 273 N.C. 439, 442, 160 S.E.2d 320, 322 (1968)). In Schaffner, this Court held that in spite of this general mle,\nres ipsa applies and allows the finder of fact to draw an inference of negligence from the circumstances surrounding an injury when (1) \u201cthe injury is of a type that does not ordinarily occur in the absence of some negligent act or omission,\u201d (2) \u201cdirect proof of the cause of [the] injury is not available,\u201d and (3) \u201cthe instrumentality involved in the accident is under the defendant\u2019s control.\u201d\nSchaffner, 77 N.C. App. at 691, 336 S.E.2d at 118 (quoting Russell v. Sam Solomon Co., 49 N.C. App. 126, 130, 270 S.E.2d 518, 520 (1980)).\nHowever, the reason for plaintiff\u2019s reluctance to rely on the res ipsa doctrine becomes apparent when one notes the North Carolina courts\u2019 \u201csomewhat restrictive\u201d application of the doctrine in medical malpractice cases.\nThe precautions in applying res ipsa to a medical malpractice action stem from an awareness that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate. This, coupled with the scientific and technical nature of medical treatment, renders the average juror unfit to determine whether plaintiff\u2019s injury would rarely occur in the absence of negligence. Unless the jury is able to make such a determination plaintiff clearly is not entitled to the inference of negligence res ipsa affords. To allow the jury to infer negligence merely from an unfavorable response to treatment would be tantamount to imposing strict liability on health care providers.\nSchaffner, 77 N.C. App. at 692, 336 S.E.2d at 118 (citations omitted).\nPlaintiff finds herself in an unfortunate position: the only proof she can provide in support of her negligence claim is the fact of her injury, but her injury is not the sort that would allow an average juror to determine negligence in the absence of expert testimony. Accordingly, as plaintiff is unable to present a forecast of evidence showing the existence of a genuine issue of material fact, we must affirm the trial court\u2019s order of summary judgment.\nAffirmed.\nJudges McGEE and BRYANT concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Randolph M. James, P.C., by Randolph M. James, for plaintiff-appellant.", "Troutman Sanders LLP, by M. Lee Cheney and Pankaj K. Shere, for defendants-appellees.", "Womble Carlyle Sandridge & Rice, PLLC, by John J. Bowers, for defendants-appellees." ], "corrections": "", "head_matter": "KAREN E. KENYON, Plaintiff-Appellant v. PAOLA M. GEHRIG, M.D. and THOMAS P. MORRISSEY, M.D., Defendants-Appellees\nNo. COA06-724\n(Filed 5 June 2007)\nMedical Malpractice\u2014 failure to show causation \u2014 summary judgment\nThe trial court did not err by granting summary judgment in favor of defendant doctors in a medical malpractice case based on alleged negligence in the use of a retractor during surgery, because: (1) defendants met their burden of showing plaintiff cannot produce evidence to support an essential element of her claim when they presented the testimony of several expert witnesses that testified defendants\u2019 treatment of plaintiff met the standard of care and that the type of injury plaintiff suffered is a known risk of the procedure that can occur in the absence of negligence; and (2) the burden shifted to plaintiff, and her experts failed to state any degree of certainty that her injury was causally connected to defendants\u2019 alleged negligence when plaintiffs experts all based their opinions only on the fact of the injury itself.\nAppeal by plaintiff from judgment entered 16 March 2006 by Judge Steve A. Balog in Alamance County Superior Court. Heard in the Court of Appeals 24 January 2007.\nRandolph M. James, P.C., by Randolph M. James, for plaintiff-appellant.\nTroutman Sanders LLP, by M. Lee Cheney and Pankaj K. Shere, for defendants-appellees.\nWomble Carlyle Sandridge & Rice, PLLC, by John J. Bowers, for defendants-appellees." }, "file_name": "0455-01", "first_page_order": 487, "last_page_order": 492 }