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Yarbrough v. Wilkey

United States District Court, E.D. Missouri, Eastern Division

December 15, 2016

IMOGENE YARBROUGH, Plaintiff,
v.
KEITH D. WILKEY and ORTHOPEDIC ASSOCIATES, LLC, Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the joint motion of defendants Keith D. Wilkey, M.D., and Orthopedic Associates, LLC, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff has responded in opposition and the issues are fully briefed.

         I. Background

         Plaintiff Imogene Yarbrough brings this medical malpractice action against defendants Keith D. Wilkey, M.D. and Orthopedic Associates, LLC.[1] It is undisputed that plaintiff sought treatment from defendants for lower back pain and spinal stenosis with left leg radiculopathy (severe lower back and leg pain). Plaintiff underwent lumbar spine surgery at St. Clare Hospital on June 13, 2013, to treat these conditions.[2] While operating, Wilkey “inadvertently created a nick or tear in the dura, which is the outermost layer of membrane covering the spinal cord and nerve roots.” Id. The parties agree that Wilkey then used sutures and DuraSeal[3] to repair the tear. Subsequent to the surgery plaintiff allegedly developed cauda equina syndrome. Plaintiff alleges that she suffered loss of bladder control, experienced “substantial increase in pain in her back and lower extremities, ” and “lost feeling in her buttocks and vaginal areas.” Id. at 4.

         Plaintiff asserts that her injuries resulted from the defendants' negligence. Specifically, plaintiff contends that defendants were negligent (1) in the application of DuraSeal to the dural tear and (2) in failing to perform post-operative diagnostic studies, such as an MRI or CT myelogram, after observing new symptoms prior to plaintiff's discharge on June 16, 2013. Plaintiff's sole expert witness, Robert Beatty, M.D., has opined that Wilkey failed to meet the standard of care in performing plaintiff's spinal surgery and addressing post-operative symptoms.

         In their motion for summary judgment, defendants argue that plaintiff lacks sufficient evidence necessary to prove that their negligence was the but-for cause of plaintiff's injuries. They further contend that plaintiff has not established damages or provided admissible expert testimony.

         II. Legal Standard

         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the moving party shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the court is required to view the facts in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If the moving party meets its burden, the non-moving party may not rest on the allegations of its pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012); Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Matsushita, 475 U.S. at 587).

         III. Discussion

         Medical Malpractice Standard

         Federal jurisdiction in this matter arises from diversity of citizenship. Accordingly, Missouri law applies. See Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996); Dugger v. United States, 936 F.Supp. 662, 663 (E.D. Mo. 1996).

         Under Missouri law, a plaintiff must prove three factors to establish a prima facie case of medical malpractice: (1) “an act or omission of the defendant failed to meet the requisite medical standard of care; (2) the act or omission was performed negligently; and (3) the act or omission caused the plaintiff's injury.” Mueller v. Bauer, 54 S.W.3d 652, 656 (Mo.Ct.App. 2001) (citing Brickey v. Concerned Care of the Midwest, Inc., 988 S.W.2d 592, 596 (Mo.Ct.App. 1999)). Here, defendants argue that plaintiff has failed to establish a causal connection between Wilkey's alleged negligence and plaintiff's injuries.

         “Usually, the test for a causal connection between a defendant's negligence and a plaintiff's injury is whether the evidence shows that the injury would not have been sustained but for the negligence.” Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 566 (Mo.Ct.App. 2002). The defendant's negligence, however, need not be the sole cause, but can be “a cause or a contributing cause” of the plaintiff's injury. Id. at 567 (emphasis added). A prima facie showing of causation requires the plaintiff to show that defendant's “negligent conduct more probably than not was the cause of the injury.” Id. (citing Morrison v. St. Luke's Health Corp., 929 S.W.2d 898, 901 (Mo.Ct.App. 1992)).

         In a complex medical malpractice cases-i.e., one necessitating “surgical intervention or other highly scientific technique for diagnosis”-expert testimony is required to establish causation. Nadolski v. Ahmed, 142 S.W.3d 755, 761 (Mo.Ct.App. 2004) (internal quotations and citations omitted). When there are two or more possible causes, such expert testimony “must be given to a reasonable degree of certainty.” Coon v. Dryden, 46 S.W.3d 81, 91 (Mo.Ct.App. 2001). “When an expert merely testifies that a given act or failure to act “might” or “could” have yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value.” Id. In other words, an expert's mere conjecture and speculation are insufficient to show causation. Mueller v. Bauer, 54 S.W.3d 652, 657 (Mo.Ct.App. 2001) (citing Gaddy v. Skelly Oil Co., 259 S.W.2d 844, 853 (1953)).

         Negligent Application of DuraSeal

         Plaintiff maintains that Wilkey improperly applied DuraSeal to repair the dural tear. According to plaintiff's expert, Wilkey employed DuraSeal in an enclosed space containing nerves rather than along the suture line (thereby violating the product's explicit warning). [Doc. #26-7 at 18, 30]. In support of this contention, Dr. Beatty relied on a July 18, 2014, CT scan revealing a mass in plaintiff's spine compressing the cauda equina. Id. at 20-24. On the basis of this scan, he also noted that Wilkey removed “very little bone” and “didn't remove the lamina”; therefore, when Wilkey managed the leak in the dura by syringe, he could have inadvertently used DuraSeal near “confined bony structures where nerves are ...


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