Date: 01-22-2014

Case Style: Mark A. Wiltshire and Jan Wiltshire v. Steven C. Anagnost, M.D., Orthopedic Center, P.C., Hillcrest Medical Center and AHS Hillcrest Medical Center

Case Number: CJ-2009-8365

Judge: Mark Barcus

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: G. Steven Stidham and Richard Warzynski

Defendant's Attorney: Bob Latham and S. Lance Freije for Orthopaedic Center, P.C.

Amy Ellen Kempfert and Sean Howard McKee for Steven C. Anagnost, M.D.

Description: Mark A. Wiltshire and Jan Wiltshire sued Steven C. Anagnost, M.D., Orthopedic Center, P.C., Hillcrest Medical Center and AHS Hillcrest Medical Center on medical negligence (medical malpractice) theories.

Hillcrest filed a motion for summary judgement which stated, in part, as follows:

This is a case sounding in medical negligence and negligent credentialing. Mark A. Wiltshire (“Mr. Wiltshire”) and Jan Wiltshire (individually, “Mrs. Wiltshire” and collectively “Plaintiffs”) filed suit related to Mr. Wiltshire’s August 18, 2008 surgery performed at HMC by Dr. Steven Anagnost (“Dr. Anagnost”). Plaintiffs claim that Dr. Anagnost was negligent in providing care and treatment to Mr. Wiltshire. See Exhibit A, p. 3. With regard to HMC, Plaintiffs allege that HMC was negligent because it negligently granted medical staff privileges to Dr. Anagnost, who Plaintiffs claim was incompetent. See Plaint ffs’ Supplemental Response to HMC ‘s Discovery Requests, attached hereto as Exhibit B, p. 3. Further, Plaintiffs contend that HMC is liable for Dr. Anagnost’s actions under an ostensible agency theory. Id. HMC denies all of Plaintiffs’ allegations of negligence. Plaintiffs endorsed Frank Tomecek, M.D. (“Dr. Tomecek”) as their sole expert witness in this matter on December 17, 2012. See Plaintiffs’ Preliminaiy Witness & Exhibit List, attached hereto as Exhibit C see also Plaintiffs’ Supplement to Their Final Witness List, attached hereto as Exhibit D.’ However, more than one (1) month earlier, Dr. Tomecek testified under oath at a hearing before the Oklahoma Board of Medical Licensure and Supervision on November 9, 2012 that he was “being paid to review cases” for the law firm of Sneed Lang Herrold, but that he is “not going to testify” as an expert witness. See Deposition of Dr. Frank Tomecek, attached hereto as Exhibit E, p. 51.

The Second Amended Scheduling Order in this case was filed on August 16, 2012. See Exhibit F. The Scheduling Order required Plaintiffs to identify experts by January 14, 2013. Although a more recent Scheduling Order was filed on April 29, 2013, this most recent Order did not alter the date on which Plaintiffs were required to identify experts. See Exhibit G. As discussed above, the only expert identified by Plaintiffs was Dr. Tomecek. Dr. Tomecek’s statements that he would not testify as an expert witness were made over eight (8) months ago and occurred more than two (2) months prior to the deadline to endorse expert witnesses. Plaintiffs have had sufficient time to retain an additional expert witness to comply with this Court’s Scheduling Order, but failed to do so.

Following Dr. Tomecek’s testimony that he would not serve as an expert witness for the law firm of Sneed Lang, including in Plaintiffs’ case, Dr. Anagnost filed his Motion for Summary Judgment on June 12, 2013. Dr. Anagnost argued in his Motion that, because Plaintiffs lack the requisite expert testimony, they cannot maintain a suit sounding in professional medical negligence.

Should that be the case, Plaintiffs will also be unable to establish a prima facie case of either negligent credentialing or ostensible agency. Thus, HMC now seeks summary judgment as well. In support hereof, Hillcrest hereby adopts and incorporates the arguments raised by Dr. Anagnost in his Motion for Summary Judgment as if fully set forth herein. In Plaintiffs’ Response to Dr. Anagnost ‘s Motion for Summary Judgment, Plaintiffs requested additional time to retain a new expert witness. Allowing Plaintiff to do so outside of the deadline imposed by the Scheduling Order would unfairly prejudice HMC and only serve to delay this matter further.

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. Plaintiffs initiated the instant litigation on October 30, 2009.

2. Plaintiffs filed their First Amended Petition on December 18, 2009. Exhibit A.

3. This case has been pending for nearly three (3) years and nine (9) months. Id.

4. Plaintiffs’ claims relate to a surgery performed by Dr. Anagnost on or about August 18, 2008. Id.

5. Plaintiffs identified Dr. Tomecek as their only expert witness in this matter. See Exhibit C, Plaint iffs ‘ Preliminary Witness & Exhibit List; see also Exhibit D.

6. Dr. Tomecek stated under oath that he will not provide expert testimony in this matter. See Exhibit E, Deposition of Dr. Tomecek, p. 11, 1. 15 - p. 12, 1. 20; p. 51, 1. 1 - 5.

7. The Second Amended Scheduling Order required Plaintiffs to endorse experts by January 14, 2013, a deadline that passed one-hundred and ninety-seven (197) days ago. See Exhibit F.

8. Plaintiffs lack the requisite expert testimony to maintain a professional medical negligence or negligent credentialing action. See Exhibit E.

* * *

Dr. Anagnost filed a motion for summary judgement stating, in part, as follows:

This case presents a claim for medical negligence against Defendant Steven C. Anagnost, M.D. Plaintiffs have endorsed Dr. Frank Tomecek as their sole expert witness. Dr. Tomeeck has testified under oath in another proceeding that he will not serve as an expert witness on behalf of the Plaintiffs in this case. Because Plaintiffs cannot proffer the admissible medical expert testimony necessary to make a prima facie case of medical negligence against Dr. Anagnost, the Court should grant Summary Judgment in favor of Dr. Anagnost at this time.

II. STATEMENT OF UNCONTROVERTED FACTS

1. On August 18, 2009, Defendant Steven C. Anagnost, M.D. performed spinal surgery upon Plaintiff Mark Wiltshire. Exhibit A, Petition.

2. On October 30, 2009, Plaintiffs filed this action, by and though the Sneed Lang Law Finn, alleging medical negligence on the part of Dr. Anagnost. Exhibit A.

3. On December 17, 2012, Plaintiffs filed their Preliminary Witness and Exhibit List, identifying Dr. Frank Tomecek as their sole expert witness. Exhibit B, Plaint ffjs’ Preliminary Witness List.

4. On January 21, 2013, Plaintiffs’ counsel, Richard Warzynski of the Sneed Lang Law Firm, wrote correspondence again identifying Dr. Tomecek as Plaintiffs’ expert witness in this case. Exhibit C, Richard Warzynski correspondence to undersigned counsel.

5. On November 9, 2012, Dr. Tomecek testified under oath that he will not testify for the Sneed Lang Law Firm as an expert witness against Dr. Anagnost. Dr. Tomecek testified:

Q. Are there any attorneys in Tulsa that you have any current relationships with, an agreement to review cases?

A. Yes. There’s a firm, Sneed Lang. And I’m reviewing cases that I am not going to offer any testimony but they just want my opinion on whether the cases are negligent and whether there’s a case at all that is worthy of pursuing for any type of problem with malpractice.

Q. And did any of those cases involve Dr. Anagnost?

A. Yes.

* * * * * * * * *

Q. How many Dr. Anagnost case are there that you’re working on with them?

A. I think theres's 12.

Q. Are the non-Dr. Anagnost cases the same arrangement: You do not intend to offer testimony?


A. That’s correct.

Q. Is Steve Stidham the attorney there that you’re working with?

A. I believe so, yeah.

* * * * * * * * *

Q. Are you being paid to review cases for somebody else?

A. That law fimi I mentioned, you know. Mr. Stidham and Sneed Lang. I’m being paid to review cases but I’m not going to testify.

Exhibit D, Deposition of Dr. Frank Tomecek at 11:15-24; 12:10-20; 51:1-5 (emphasis added).

6. Plaintiffs do not have the requisite expert witness to testify at trial that Dr. Anagnost’s care and treatment of Mark Wiltshire constituted negligence and caused them injury.

7. Dr. Anagnost’s care and treatment of Plaintiff Mark Wiltshire met the applicable standard of care at all times. Dr. Anagnost did not cause injury to the Plaintiffs.

Outcome: 12-10-2013 CTFREE - 87762511 Dec 13 2013 2:49:28:210PM - $ 0.00

BARCUS, MARK: HEARING ON PLAINTIFF'S RULE 13 (D) HELD.

RICHARD WARZYNSKI PRESENT FOR PLAINTIFF.

ANNE MAGUIRE PRESENT FOR ORTHOPAEDIC CENTER.

STEVEN SIMCOE PRESENT FOR DR. STEVEN ANAGNOST.

DEFENDANT STEVEN C. ANAGNOST, M.D.'S MOTION FOR SUMMARY JDUGMENT SUSTAINED.

PLAINTIFFS' RULE 13 (D) MOTION TO DENY HILLCREST MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE OR GRANT THESE PLAINTIFFS 120 DAYS TO OBTAIN A NEW EXPERT WITNESS SUSTAINED.

DEFENDANT THE ORTHOPAEDIC CENTER'S MOTION FOR SUMMARY JUDGMENT SUSTAINED. DEFENDANT AHS HILLCREST MEDICAL CENTER, LLC'S MOTION FOR SUMMARY JUDGMENT SUSTAINED.

MR. SIMCOE TO SUBMIT JOURNAL ENTRY

Dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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