Opinion:Burleson v. Wayne, 2021 OK CIV APP 25
Subject matter:Medical negligence
Date Decided:May 10, 2021; Mandate Issued June 30, 2021
Trial Court:District Court of Oklahoma County; Judge Andrews
Route to this Court:Appeal from partial summary judgment on liability and causation (and following jury trial on damages); Assigned to COCA, Division IV
Facts:Plaintiff/Appellee alleged that Defendant/Appellant deflated one of her breast implants while harvesting cartilage from a rib to repair her nasal septum. Plaintiff’s breast implant deflated two days after surgery. The trial court awarded partial summary judgment to Plaintiff based on a res ipsa loquitur pattern of proof. Plaintiff did not present any expert testimony on summary judgment to establish that the Defendant breached his standard of care. In the Defendant’s response to the motion for partial summary judgment, he presented evidence that the Plaintiff’s own expert acknowledged the possibility of implants deflating spontaneously as they age. In addition, Plaintiff’s own expert acknowledged that an implant can rupture during a rib graft even when the procedure is performed completely within the standard of care. The Defendant also presented evidence suggesting that the Plaintiff was contacted by a plastic surgeon to reschedule an appointment to exchange her implants several months before the surgery at issue. 
 The case then proceeded to jury trial on damages. The trial court denied Defendant’s request to revisit the trial court’s holding on summary judgment and denied Defendant’s request to present evidence on the issue of liability. The jury returned a unanimous verdict for the Plaintiff and awarded her $125,000 in damages. Defendant appealed. 
Standard of Review:“When reviewing a judgment the Court may reverse, vacate, or modify any anterior intermediate order involving the merits of the action or any portion thereof….An immediately appealable-by-right interlocutory order which is not appealed or a non-appealable uncertified interlocutory order may thus be subject to appellate review on appeal from the subsequent judgment.” Lincoln Farm, L.L.C. v. Oppliger, 2013 OK 85. 
Review of summary judgment is de novo, considering the evidence and inferences to be drawn therefrom in the light most favorable to the non-moving party. 
Analysis:“While a jury could reasonably conclude from the record that [Plaintiff’s] implant was deflated during surgery, more than one inference arises from the evidence, taken in the light most favorable to [Defendant]. Further, even if we assume that the implant was deflated during surgery, [Plaintiff] did not present evidentiary materials to support the remaining elements of a negligence claim.” A physician’s negligence is ordinarily established by expert testimony. The plaintiff has the burden of proving, through expert testimony, that the applicable standard of care was breached, and that the breach resulted in the harm to the plaintiff. 
To raise a presumption of negligence under a res ipsa loquitur  pattern of proof, Plaintiff was require to show:
That she sustained an injury;That the injury was proximately caused by an instrumentality solely within the control of the Defendant; andThe injury does not ordinarily occur under the circumstances absent negligence on the part of the defendant.
Plaintiff’s evidence was not sufficient to support the foundational facts necessary to raise a presumption of negligence, much less to support judgment in her favor. Plaintiff did not establish through expert testimony that the Defendant breached his duty of care or caused her injury. 
Outcome:Reversed and remanded. 
Vote:Hixon, P.J. (author), Fischer, V.C.J. and Rapp, J., concur. 
Other: Cert. not sought. Note that the grant of partial summary judgment was certified for immediate appeal but the Oklahoma Supreme Court declined review.