A woman underwent knee surgery and after the surgery she suffered from a femoral nerve injury. She sued the surgeon under a theory of res ipsa loquitor. The surgeon filed a motion for summary judgment arguing that the femoral nerve injury was idiopathic, thus, not caused by the negligence of anyone and occurred outside of surgery. The surgeon argued, “[t]herefore, there is an entire absence of proof on a material issue that the Plaintiff must prove to support her claim of res ipsa loquitur.” In deposition testimony, the woman's expert, a neurologist, agreed with the surgeon that the woman could have developed femoral neuropathy for an unknown reason, unrelated to surgery. However, the neurologist did not rule out things that could have occurred in surgery which may have caused the patient's injury. The motion for summary judgment was denied.
On appeal, the surgeon moved to strike certain documents included in appellant's record on accelerated appeal. Specifically, he moved to strike documents which were a part of the record in an earlier appeal, which, arguably, were not considered by the trial court in sustaining the motion for summary judgment.
The Supreme Court of Oklahoma denied the motion to strike. Court rules limit materials which may be considered in appeals of summary judgment. However, the Supreme Court may take judicial notice of its own records in litigation interconnected with an appeal before it.
The court also reversed and remanded on the issue of the motion for summary judgment. The court held that the woman presented testimony indicating that an injury could have been caused by an instrumentality or action of a third party, which was sufficient to avoid a motion for summary judgment. Where there was not an absence of proof that the surgeon's treatment proximately caused the woman's injuries, the issue of causation should not be removed from the province of the fact-finder.
See: Smith v. Hines, 2013 WL 3325482, 2013 OK 65 (Okla., July 2, 2013) (not designated for publication).
See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements