Date: 08-12-2013

Case Style: Martin Martinez Trujillo v. Kevin L. Jolliff, M.D.

Case Number: CJ-2011-8144

Judge: Patricia G. Parris

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Gary Brooks, Ann Brooks

Defendant's Attorney: Neel K. Natarajan and Hilton H. Walters for Kevin J. Joliff, M.D.

Randall L. Sewell for Gregory L. Blair, M.D.

Description: Martin Martinez Trujillo sued Kevin L. Jolliff, M.D. and Gregory Blair, M.D. on medical negligence theories claiming:

1. The Defendants and Defendants’ agents, servants and employees administered medical, dinosis and treatment to the Plaintiff’s decedent, on or about June 13, 2010, and thereafter.

2. The Defendants and Defendants’ agents, servants and employees were wiliflul, reckless ani negligent in the medical, diagnosis and treatment administered to the Plaintiffs decedent, ajd in the fulfillment of administrative and supervisory duties, which conduct was the sole and pr*imate cause of the Plaintiffs decedent’s injuries and damages.

3. As a result of the conduct of the Defendants and Defendants’ agents, servants and employees, he Plaintiff’s decedent suffered severe bodily injury which required hospitalization and medical treatment; suffered pain of mind and body; and which resulted in death on or about June 25, 2010.


4. By reason of the death of Plaintiffs decedent, Plaintiff sustained great emotional distress, grie , loss of companionship and love, medical and flineral expenses and economic loss. In addition, decedent’s children have sustained great emotional distress, grief, loss of companionsHip, love, destruction of their parental/child relationship, for all of which Plaintiff is entitled to d ages as permitted by law.

WHEREFORE, Plaintiff demands money judgment against the Defendants in an amount in excess of $10,000.00 as authorized by law for actual and punitive damages, interest, costs and such other relief as the court deems just and proper.

Kevin L. Jolliff, M.D., appeared and answered as follows:

1. Dr. Jolliff denies generally and specifically each and every material allegation contained in plaintiffs petition, except such allegations as are hereinafter specifically admitted.

2. In regard to paragraph 1 of plaintiffs petition, Dr. Jolliff admits he provided care and treatment to Martha Martinez during her hospitalization at St. Anthony’s Hospital from June 3” to June 1 5th, 2010. Dr. Jolliff denies the remaining allegations contained in paragraph 1 of plaintiffs petition. petition.

3. Dr. Jolliff denies the allegations contained in paragraphs 2 and 3 of plaintiff’s

4. Dr. Jolliff denies his care and treatment provided to Martha Martinez was below the standard of care. Therefore, Dr. Jolliff denies any act or omission by him was the actual or proximate cause of the injuries plaintiff alleges in paragraph 4.

5. Dr. Jolliff specifically denies that he was negligent in any manner or at any time in his care and treatment of Martha Martniz. Dr. Jolliffs care and treatment of Martha Martinez was at all times and in every manner proper and within the standard of applicable care.

6. Dr. Jolliff specifically denies that any act or omission on his part in the care and treatment of Martha Martinez was the actual or proximate cause of any injury to the plaintiff

7. Dr. Jolliff specifically denies that Martha Martinez or the plaintiff sustained any injury or suffered any damages by reason of any alleged act or omission on Dr. Jolliffs part.

8. Discovery being incomplete, Dr. Jolliff specifically reserves the right to amend his answer or to add any affirmative defense as more information becomes available.

Affirmative Defenses

For affirmative defenses, Dr. Jolliff alleges and states:

9. No action or omission of Dr. Jolliff was malicious, willful, wanton, reckless, grossly negligent or intentional and, therefore, any award of punitive damages is barred.

WHEREFORE, having answered, Dr. Jolliff prays that the plaintiff take nothing by reason of his petition and that Dr. Jolliff be dismissed herein with his costs.

Defendant, Kevin L. Jolliff, M.D., moved for summary judgment in his favor asserting:

This is a medical malpractice action in which the plaintiff alleges Dr. Jolliff breached the standard of care related to his care and treatment of Martha Martinez (“Mrs. Martinez”). (Exhibit A, Petition.) On February 7, 2013, the plaintiff Martin Martinez Trujillo (“Mr. Martinez”), Surviving Spouse of Martha Martinez, deceased, was deemed to represent himselfpro se pursuant to the Court’s Order of January 8, 2013. (Exhibit B, Order.) “{Pro se plaintiffs] are held to the same standards as an attorney.” Funnell v. Jones, 1985 OK 73, ¶ 4.

STATEMENT OF MATERIAL, UNDISPUTED FACTS

1. On June 13, 2010 at approximately 5:30 p.m., Martha Martinez was admitted to the St. Anthony Emergency Department with complaints of back and abdominal pain with associated nausea, vomiting and diarrhea for the past three days. (Exhibit C, Medical Records 1025-27.)

2. Mrs. Martinez was admitted to St. Anthony Hospital under the care of Gregory Blair, M.D. (Exhibit C, Medical Records 1025-27.)

3. Her pancreatic enzymes at that time were elevated and she was diagnosed with acute pancreatitis secondary to cholelithiasis (gallstones). (Exhibit C, Medical Records 1025-27, 1028.)

4. On June 14, 2010 at approximately 7:08 a.m., an ultrasound was performed and showed a dilated gallbladder. (Exhibit C, Medical Record 1022, 1048.)

5. On June 14, 2010, Dr. Jolliff was consulted for removal of Mrs. Martinez’ gallbladder. (Exhibit C, Medical Record 1028, 1030.)

6. Dr. Jolliff evaluated Mrs. Martinez, including reviewing her history of gallstone pancreatitis, her labs results and the ultrasound performed on June 14, 2010.

(Exhibit C, Medical Records 1023-24, 1028, 1030, 1060-62.)

7. Based on the medical information available, Dr. Jolliff recommended a laparoscopic cholecystectomy (gallbladder removal) and discussed the risks and benefits of the procedure with Mr. and Mrs. Martinez. (Exhibit C, Medical Records 1023-24, 1030, 1060-62.)

8. On June 14, 2010 at 1:45 p.m., Mrs. Martinez consented to a laparoscopic cholecystectomy. (Exhibit C, Medical Records 1058-59.)

9. On June 14, 2010 at 3:52 p.m., Dr. Jolliff performed the laparoscopic cholecystectomy without complication. (Exhibit C, Medical Records 1023-24, 1031, 1060- 62.)

10. Mrs. Martinez’ pancreatic enzymes began to improve and her other lab values were encouraging that her condition was resolving. (Exhibit C, Medical Records 1022, 1023-24, 1034, 1051, 1052.)

11. On June 15, 2010, Dr. Blair and Dr. Jolliff agreed that it was appropriate to discharge Mrs. Martinez with instructions to return, if her condition changed. (Exhibit C, Medical Records 1022, 1023-24, 1104-05, 1106.)

12. Mrs. Martinez was to follow-up with Dr. Jolliff post-operatively within two (2) weeks, or about June 29, 2010. (Exhibit C, Medical Records 1022, 1023-24.)

13. Dr. Jolliff was not involved, contacted, or consulted regarding Mrs. Martinez after her discharge on June 15, 2010. (Exhibit D, ¶11, Affidavit of Kevin L. Jolliff, M.D.)

14. On June 22, 2010, Mrs. Martinez returned to St. Anthony Emergency Department with complaints of abdominal pain. (Exhibit C, Medical Records 1116-19, 1127-1128.)

15. On June 22, 2010, Mrs. Martinez was admitted to St. Anthony Hospital under the care of Dr. Blair. (Exhibit C, Medical Records 1116-19, 1127-1128.)

16. Dr. Blair evaluated the patient and consulted a different general surgeon than Dr. Joliff for further care and treatment. (Exhibit C, Medical Records 1129-131, 1132.)

17. On June 25, 2010 at 10:54 p.m., Mrs. Martinez was pronounced dead. (Exhibit E, Death Certificate.)

18. Dr. Blair provided appropriate care and treatment during the June 1 3th hospitalization of Mrs. Martinez. (Exhibit F, Affidavit of Gregory Blair, M.D.)

19. Dr. Blair provided appropriate care and treatment during the June 22nd hospitalization of Mrs. Martinez. (Exhibit F, Affidavit of Gregory Blair, M.D.)

20. Dr. Jolliff provided appropriate care and treatment during the June 1 3th hospitalization of Mrs. Martinez. (Exhibit D, Affidavit of Kevin L. Jolliff, M.D.)

21. Dr. Jolliffs care and treatment at all times met all applicable standards of care. (Exhibit D, Affidavit of Kevin L. Jolliff, M.D.)

22. Dr. Jolliff did not cause harm to Mrs. Martinez. (Exhibit D, Affidavit of Kevin L. Jolliff, M.D.)

STANDARD OF REVIEW

Summary judgment is proper if uncontroverted material facts fail to support a legitimate inference in favor of the nonmoving party. Tice v. Pennington, 2001 OK CIV APP 95, ¶ 7, 30 P.3d 1164, 1167. “One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiffs claims or theories in order to prevail on motion for summary judgment.” Id. at ¶ 8. Instead, the defendant has the burden of showing, “1) that no substantial factual controversy exists as to at least one fact essential to plaintiffs theory of the cause of action; and, 2) that the fact is in defendant’s favor. Once a defendant has introduced evidentiary materials to establish these points, {plaintiff then has] the burden of showing that evidence is available which justifies a trial of the issue.” Id.

Summary judgment is properly invoked when it “serves to eliminate a useless trial.” Feightner v. Bank of OK, 2003 OK 20, ¶ 2, 65 P.3d 624.

ARGUMENT AND AUTHORITIES

Dr. Jolliff was not negligent in any manner during his care and treatment of Mrs. Martinez. His care and treatment of Mrs. Martinez was at all times within all applicable standards of care.

Plaintiff “cannot defeat a motion for summary judgment and require a trial by a bare contention that an issue of fact exists.” Lewis v. Crystal Gas Co., 1975 OK 26, ¶20, 532 P.2d 431 (citing Runyon v. Reid, 1973 OK 25, ¶14, 510 P.2d 943.) Plaintiffs claim of negligence is wholly unsupported by the facts of this case. No evidence has been produced, in the form of expert testimony or otherwise, by plaintiff to create a factual controversy to support the elements of his claims against Defendants. “It is well settled that in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence.” Roberson v. Jeffrey M Waitner, MD., 2005 OK CIV APP 15, ¶6, 108 P.3d 567. Without any such evidence, Defendants are entitled to summary judgment as a matter of law.

Attached to this motion is evidence that provides evidence that the care and treatment provided to Mrs. Martinez by Dr. Jolliff met all applicable standards of care and was not negligent. (Exhibit D) “In a medical malpractice action, evidence of medical standard in the community may be established by testimony of the defendant physician.” Roberson, 2005 OK CIV APP 15, ¶6. The evidence demonstrates the care and treatment provided to Mrs. Martinez by Defendants was at all times and in every manner proper and met applicable standards of care.

Specifically, Dr. Jolliff consulted with Mrs. Martinez regarding the removal of her gallbladder. After Dr. Jolliff evaluated Mrs. Martinez, review her lab results, and ultrasound, he fully discussed the risks and benefits with Mr. and Mrs. Martinez regarding the laparoscopic cholecystectomy. Mrs. Martinez consented to the surgery, which was completed without complication on June 14, 2010. Dr. Jolliff and Dr. Blair monitored Mrs. Martinez progress, lab results, and resolution of some of her symptoms. On June 15, 2010, Mrs. Martinez was discharged home with instructions to return to St. Anthony Hospital, if her condition changed, or to follow-up with Dr. Jolliff in two (2) weeks. Dr. Jolliff was not involved, contacted or consulted regarding any of Mrs. Martinez’ subsequent care and treatment. When Mrs. Martinez returned on June 22nd, she was evaluated by Dr. Blair and a consultation with another general surgeon was obtained. Dr. Blair’s medical management of Mrs. Martinez at all times met the standard of care. (Exh. F). Dr. Jolliff’s care and treatment met all applicable standards of care.

It is clear from the review of the facts of this case that Dr. Jolliff’ surgery and postoperative care was proper and met all applicable standards of care. Summary judgment should be granted in favor of Dr. Jolliff.

It is the plaintiffs burden to provide the Court with admissible expert evidence to support his allegations of medical malpractice. The written opinion provided by plaintiff’s former counsel pursuant to 12 O.S. §19 is insufficient to meet his burden of proof. “[A] blanket statement opining liability, without providing any information as to the required standard of care, and without offering any reason for his conclusions, is simply not sufficient to satisfy this rule.” Benson v. Tkach, 2001 OK CIV APP 100, ¶13. The Oklahoma Supreme Court has stated:

The reasons given in support of the opinions rather than the abstract opinions are of importance, and the opinion is of no greater value than the reasons given in its support. If no rational basis for the opinion appears, or if the facts from which the opinion was derived do not justify it, the opinion is of no probative force, and it does not constitute evidence sufficient to authorize submission to the jury.

Benson. supra, quoting Downs v. Longfellow Corp., 1960 OK 107, 351 P.2d 999.

In order for plaintiff to overcome this motion for summary judgment he must meet his burden of proof. “A plaintiff has the burden of providing through expert testimony: (1) the standard of medical care required of physicians, (2) that a duty existed and was breached, and (3) that this breach of duty resulted in harm to the plaintiff.” Benson, 2001 OK CIV APP 100, ¶10. Some general statement relying on pleadings or an affidavit without specific opinions that are rational, reasoned and justified will not meet plaintiffs burden.

CONCLUSION

The facts of this case do not support plaintiffs claim. With only bare allegations and no evidentiary support, plaintiff caimot create a factual controversy sufficient to justify a trial on his claim. Dr. Jolliff is entitled to summary judgment as a matter of law.

Defendant, Gregory Blair, M.D., appeared and answered as follows:

Comes now the defendant, Gregory Blair, M.D. pursuant to Rule 13 for the District Court of Oklahoma, 12. O.S. Ch. 2. App., and the legal authority set forth below, and move this Court for summary iudgment. Defendant is entitled to judgment as a matter of law as the un-controverted facts establish no genuine issue as to any material fact. To date, plaintiff has not identified an expert witness wiling to testify to support plaintiff’s allegations of medical negligence against this defendant. Alternatively, this defendant submits the following:

Overview of Facts

1. This case is directed toward the June 13, 2010, and June 22, 2010, hospital admissions and treatment rendered to plaintiff’s spouse, Martha Martinez. Ms. Martinez presented to the St. Anthony Hospital ER with abdominal complaints on June 13, 2010. Dr. Blair, as a hospitalist/internist, was involved in her care. During that hospitalization, codefendant general surgeon, Kevin Jolliff, M.D. was consulted and performed a laparoscopic cholecystectomy (gallbladder removal). She was discharged from the hospital on June 1 5, 2010, with planned followup care by Dr. Jolliff. However, she returned to St. Anthony ER on June 22. She was found to have pancreatitis. A gastroenterology consult was obtained where an ERCP was preformed on the patient by gastroenterologist (Dr. Khan). However, she developed worsening pancreatitis and died on June 25, 2010.

2. The instant action was initiated on October 27, 2011, however, with only written discovery being conducted in the subsequent 12 months, plaintiff’s counsel filed a Motion to Withdrawal in November 2012, with an Order allowing their withdrawal entered by this Court on January 8, 201 3. Plaintiff, Martin Martinez Trujillo was notified of that Order to Withdraw as reflected in the Order, and filed with this Court on January 8, 2013.

3. Since the withdrawal of plaintiff’s counsel, counsel for this defendant has written Mr. Trujillo requesting his cooperation in scheduling discovery and, making inquires if counsel had been retained to represent his interests. Mr. Trujillo received correspondence from this defendant’s counsel on February ‘19, 2013. No response has been forthcoming.

4. The Order allowing plaintiff’s previous counsel to withdraw, filed on January 8, 2013, directed the plaintiff to file an entry of appearance either pro se or by substitute counsel within 30 days of the date of the Order. It was noted failure of the petitioner to prosecute the case may result in a dismissal of the case without prejudice. To date, no entry of appearance has been filed by plaintiff, nor has plaintiff responded to counsel’s written inquires about depositions and expert witnesses herein. Additionally, to date plaintiff has not identified or apparently chosen any expert witness that would be called to give testimony to support plaintiff’s claims of negligence against this defendant. Plaintiff’s responses to previous lnterrogatories, as answered on January 24, 2012, indicated plaintiff had not chosen an expert witness at that time. (See Answer to Interrogatory No. 26, attached hereto and marked as Exhibit A.)

Statement of Uncontroverted Facts

The care and treatment of plaintiff as provided by this defendant was within, accepted standards of medical care. Attached hereto is the Affidavit of Dr. Blair establishing and verifying his care met the acceptable standards. (See Exhibit B.)

Argument and Authorities

Unlike an ordinary negligence action, in all but the extraordinary medical malpractice case, the patient or plaintiff has the burden of producing expert testimony to support a case of negligence. Robertson v. LaCroix, 534 P.2d 17 (OkIa. Ct. App. 1975).

In Culpepper v. Lloyd, 583 P.2d 500, 502 (OkIa. 1978), the Court stated:

Ruling on motion for summary judgment is to be made on the record which parties have actually presented and not on a record which is potentially possible.

Where defendant moves for summary judgment and introduce evidence which indicates there is no substantial controversy as to material fact, plaintiff has the burden of showing that evidence is available which would iustifv the trial of the issue. Weeks v. Wedgewood Village, Inc., 554 P.2d 780, 784-85 (OkIa. 1976). In Weeks, a landmark case on summary judgments, the Supreme Court held:

A party cannot rely on his own pleadings in opposition to affidavits and depositions supporting a motion for summary judgment. [Citing authority.] The mere assertion in a pleading, when attacked by a motion for summary judgment supported by proof of specific facts in the form of an affidavit or deposition, places on the author of the statement the obligation to present something which will show that when the date of trial arrives, he will have some proof to support the allegations in the pleadings. He cannot withhold this showing until the time of trial. [Citing authority.}

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If the defendant introduces evidence which indicates there is no substantial controversy as to a fact material to plaintiff’s cause of action, and this fact is in the defendants favor, the plaintiff has the burden of showing that evidence is available which would justify trial of the issue. [Citing authority.]

No evidence was presented [by plaintiff] to sustain the allegation appellees [defendants] breached any duty. The only assertion of negligence of appellees is contained in the petition of appellants. Pleadings alone are insufficient to present an issue of fact requiring the cause to be tried. In order to refute the motion for summary judgment, there must be more than bare allegations in the petition. Appellants failed to respond to the motion for summary judgment or to present any proof in the form of affidavits, interrogatories, or depositions to support the finding that there was a dispute as to a material question of fact or that evidence to support appellants’ assertions would be available at the time of trial.

It is well-established that in a medical malpractice action the plaintiff must establish the requisite standard of care for a physician and, further, must establish that the physician failed to act in accordance with that standard. Reeg v. Shaucjhnessy, 570 F.2d 309, 313 (10th Cir. 1978). In Boxbercier v. Martin, 552 P.2d 370 (OkIa. 1976), the Court stated:

The general rule is expert testimony is ordinarily necessary to establish causation in professional liability cases ... the need for expert medical testimony is limited to establishing a proper standard of care (the defendant) physician should have followed.

In Parsons v. Wood, 584 P.2d 1332, 1335 (OkIa. 1978), a medical malpractice case in which a motion for summary judgment was upheld, the Supreme Court stated:

No evidence was offered or pointed to which would fairly raise the inference of culpable negligence.

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Nor can appellant get around the total failure of the evidence to establish the essential causal link between the asserted act of malpractice and the injuries suffered by the deceased. * * After appellee introduced evidence which indicated there was no substantial controversy as to a fact material to appellant’s cause of action, and this fact was in appellee’s favor, the burden then shifted to appellant to show evidence available which would justify a trial. [Citing authority.]

Rule 13 of the Rules for District Courts provides in pertinent part:

(a) A party may move for judgment in his favor on the ground that . . answers to interrogatories and . . . affidavits, filed with his motion show that there is no substantial controversy as to any material fact. * * * The motion may be served at any time after the filing of the action

(b) If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading.

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(C) The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that are admissible in evidence.

Conclusion

Dr. Blair is obviously competent to give expert opinion testimony on acceptable standards of medical care as well as their compliance of said standards. Plaintiff has offered nothing but conclusory allegations to rebut defendant’s evidentiary testimony.

WHEREFORE, this defendant request this Court to grant summary judgment for plaintiff’s failure to present any expert evidence to support plaintiff’s allegations of negligence.

Outcome: Now on this 1 2th day of July, 201 3, the above-entitled and captioned cause of action came on for hearing upon the Motion for Summary Judgment of Gregory Blair, M.D. The plaintiff, Martin Martinez Trujillo, failed to appear and failed to file a Response to the Motion for Summary Judgment. The defendant, Kevin L. Jollief, M.D., appeared by and through his counsel of record, Valerie R. Smith. The defendant, Gregory Blair, M.D., appeared by and through his counsel of record, Caleb M. Redman. The Court, having reviewed Dr. Blair’s Motion for Summary Judgment, sustains said motion.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is entered in favor of defendant, Gregory Blair, M.D.

Plaintiff's Experts:

Defendant's Experts:

Comments: