232 P.3d 529 2010 UT App 85

2010 UT App 85

Buu NGUYEN, Plaintiff and Appellant, v. IHC HEALTH SERVICES, INC., dba Primary Children’s Medical Center; University of Utah Hospitals and Clinics; University of Utah; State of Utah; and Pulmonetic Systems, Inc., Defendants and Appellees.

No. 20080738-CA.

Court of Appeals of Utah.

April 22, 2010.

*531Matthew H. Raty, Sandy, for Appellant.

Robert G. Wright, Brandon B. Hobbs, and Zachary E. Peterson, Salt Lake City, for Appellee Primary Children’s Medical Center.

David G. Williams and Bradley R. Black-ham, Salt Lake City, for Appellees University of Utah Hospitals and Clinics, University of Utah, and State of Utah.

Before Judges McHUGH, ORME, and THORNE.

OPINION

ORME, Judge:

¶ 1 Buu Nguyen appeals the district court’s exclusion of his expert and the resulting dismissal of his claims for negligence and failure to obtain informed consent, as well as the court’s grant of summary judgment on his intentional infliction of emotional distress and punitive damages claims. We affirm the district court’s decisions, except as concerns the claim premised on failure to obtain informed consent. With respect to that claim, we reverse and remand.

BACKGROUND

¶ 2 Nguyen was the father of one-year-old Derek Nguyen. Derek was admitted into the pediatric intensive care unit (PICU) at Primary Children’s Medical Center (PCMC) as a result of severe injuries he sustained in a car accident. Dr. Madeline Witte, a University of Utah School of Medicine employee, was responsible for Derek’s care while at PCMC. During Derek’s treatment, Dr. Witte *532concluded that a CT scan was necessary to determine if bleeding or a blood clot in Derek’s brain was causing his deteriorating condition. The CT scanner was located on a different floor of the hospital, so a transport ventilator was used to facilitate Derek’s transfer. The ventilator was a sales model of the unit that PCMC was considering purchasing. Derek was placed on the ventilator for approximately an hour before the transport and was transported only after it was determined that the ventilator would provide the support needed. While returning to the PICU after the CT scan, the ventilator lost power. Resuscitation attempts failed, and Derek died.

¶3 PCMC had developed a procedure to test and evaluate equipment it was considering for purchase, such as the ventilator. The process included identifying the type of appropriate test-patient and the need to obtain consent from the patient’s parent before the equipment was used. Dr. Witte acknowledged in her deposition that the ventilator was only supposed to be used on “moderately ill” patients. She also stated that while Derek’s father was told “that there was some risk involved” in transporting Derek, he was not told that the ventilator was a test model. According to Dr. Witte, she used the ventilator not as part of the testing process, but only because the ventilator was the only machine “available that [she] had confidence could deliver the level of support that Derek was requiring.” However, several people accompanied Derek as he was moved to observe the ventilator in action. Significantly, this group included a representative from the ventilator manufacturer.

¶4 Following an investigation regarding the ventilator’s malfunction, Dr. Witte met with Nguyen and told him that the ventilator quit working because “a screw had made contact with the motherboard resulting in shutdown of the ventilator.” Dr. Witte also told Nguyen “that the malfunction of the ventilator clearly played a role in the timing of [Derek]’s death” but that Derek’s severe injuries “could very possibly have resulted in his demise even in the absence of a ventilator malfunction.”

¶ 5 Nguyen filed a complaint against IHC Health Services, Inc., doing business as PCMC; University of Utah Hospitals and Clinics; University of Utah; and the State of Utah (collectively, Defendants) alleging negligence, failure to obtain informed consent, intentional infliction of emotional distress, and recklessness that justified punitive damages.1 After a July 23, 2008 hearing, the district court granted Defendants’ motions for partial summary judgment on the claims of intentional infliction of emotional distress and punitive damages. The court also granted Defendants’ motion to exclude Dr. John Goldenring from testifying as Nguyen’s expert. Because “[Nguyen] ha[d] failed to offer admissible expert testimony to establish either a breach of the applicable standard of care or causation,” the court granted Defendants’ summary judgment motion for the remaining claims of negligence and failure to obtain informed consent. Nguyen appeals the court’s rulings.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Nguyen asserts that the trial court incorrectly granted summary judgment on his claims. A court shall grant summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).

A summary judgment movant, on an issue where the nonmoving party will bear the burden of proof at trial, may satisfy its burden on summary judgment by showing, by reference to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that there is no genuine issue of material fact. Upon such a showing, whether or not supported by additional affirmative factual evidence, the burden then shifts to the nonmoving party, who may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts *533showing that there is a genuine issue for trial.

Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (emphasis in original) (citations and internal quotation marks omitted). “We evaluate the evidence in the light most favorable to the party opposing summary judgment,” Doctors’ Co. v. Drezga, 2009 UT 60, ¶ 9, 218 P.3d 598, and “review a district court’s decision to grant summary judgment for correctness, giving no deference to the district court,” Raab v. Utah Ry. Co., 2009 UT 61, ¶ 10, 221 P.3d 219.

¶ 7 Nguyen also argues that the court improperly excluded Dr. Goldenring from testifying as an expert. “District courts generally enjoy considerable latitude in making evidentiary rulings, including rulings concerning the qualifications of expert witnesses under rule 702 of the Utah Rules of Evidence. In most instances, therefore, we will disturb such rulings only when the district court has exceeded its discretion.” Carbaugh v. Asbestos Corp., 2007 UT 65, ¶ 7, 167 P.3d 1063.

ANALYSIS

I. Intentional Infliction of Emotional Distress

¶ 8 The district court properly granted Defendants’ summary judgment motion on Nguyen’s claim for intentional infliction of emotional distress. Nguyen’s complaint alleged that Defendants acted outrageously by “using [Derek] as a test subject for, and as part of a sales demonstration of the Pulmonetic ventilator,” an untested ventilator, without obtaining Nguyen’s consent. In responding to Defendants’ summary judgment motion, Nguyen claimed that Defendants did not follow their own guidelines established for testing the ventilator and that “[n]o emergency existed to justify disregard of the protocols.”

¶ 9 Defendants argued in their summary judgment memoranda that even if all of Nguyen’s assertions could be proven, the conduct as described did not establish that Defendants acted outrageously, as is required to prove a claim of intentional infliction of emotional distress,2 see Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 51, 194 P.3d 956. “To be considered outrageous, [t]he conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair. Furthermore, [a]n act is not necessarily outrageous merely because it is tor-tious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.”3 Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 28, 21 P.3d 198 (alterations in original) (citations and internal quotation marks omitted). Given Utah case law, the district court *534correctly ruled that any failure to follow the testing protocol under the circumstances of this case did not “amount[] to evidence of outrageous conduct.”4

¶ 10 Furthermore, the district court correctly determined that no evidence established that Defendants intended to cause emotional distress. See generally Oman, 2008 UT 70, ¶ 51, 194 P.3d 956. In responding to Defendants’ motions for summary judgment, Nguyen did not dispute that “Dr. Madeline Witte determined that a CT scan was critical to assess Derek’s ongoing problems” and that “[bjefore Derek was transported to the CT scanner, he was placed on the Pulmonetics ventilator for approximately an hour to insure that the ventilator would provide Derek with the requisite levels of support.” This evidence demonstrates, as a matter of law, that Defendants’ actions in using the ventilator were not outrageous or done to intentionally cause emotional harm to Nguyen. Therefore, the district court correctly granted Defendants’ summary judgment motions on the intentional infliction of emotional distress claims.

II. Punitive Damages

¶ 11 The district court also properly granted PCMC’s summary judgment motion on Nguyen’s punitive damages claim. Nguyen argued that summary judgment on this claim was inappropriate because PCMC acted in “knowing and reckless disregard [of Derek’s] safety” by attaching the critically ill *535and unstable child to the untested ventilator for purposes of evaluating the ventilator, by not consulting with other members of Derek’s health care team about using the ventilator, by not following the established protocol for using the ventilator, and by not informing Nguyen that they were going to use an untested ventilator on Derek. We agree with the district court and PCMC that even if all those facts were established, they would not, as a matter of law, justify a punitive damages award because they would not establish that PCMC’s actions amounted to “conduct that manifest[ed] a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann. § 78B-8-201(l)(a) (2008).5

¶ 12 Utah law has long recognized that “[s]imple negligence will never suffice as a basis upon which [punitive] damages may be awarded. ‘Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.’ ” Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1186 (Utah 1983) (quoting Restatement (Second) of Torts § 908 cmt. b at 465 (1979)). “[T]he defendant must either know or should know ‘that such conduct would, in a high degree of probability, result in substantial harm to another,’ and the conduct must be ‘highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ ” Id. at 1187 (citations omitted). The facts alleged by Nguyen, when considered along with the undisputed facts previously identified, could at most prove negligence. The facts do not establish willful, malicious, or reckless conduct. The grant of summary judgment on the punitive damages claim was therefore proper.6

III. Exclusion of Nguyen’s Expert

¶ 13 The district court also properly excluded Dr. Goldenring as an expert on the issues of the applicable standard of care and causation. “Practitioners in one specialty are not ordinarily competent to testify as experts on the standard of care applicable in another specialty.” Arnold v. Curtis, 846 P.2d 1307, 1310 (Utah 1993).

[A] medical expert witness brought in to testify on the applicable standard of care, and whose specialty differs from that of the allegedly negligent doctor, must show that he or she is knowledgeable about the applicable standard of care or that the standard of care in the expert’s specialty is the same as the standard of care in the alleged negligent doctor’s specialty.

Dikeou v. Osborn, 881 P.2d 943, 947 (Utah Ct.App.1994).

¶ 14 Dr. Goldenring practiced general pediatrics and had never worked as a critical care physician in a PICU. Although he has provided some emergency care in hospitals as an attending pediatrician, he specified that he always worked in the “team context” with specialists because “[ijt’s not appropriate for a general pediatrician to take on a really bad case ... without getting lots of help.” Since 1994 or 1995, Dr. Goldenring has not used any active hospital privileges and had primarily worked for HMOs and individual practice associations as an administrator or consultant. He also had no experience with the ventilator used in this case, is not an expert on ventilators generally, and had no experience writing test protocols for hospital equipment. In addition, Dr. Goldenring frankly conceded in rendering his causation opinions that he was unable to quantify Derek’s chance of survival absent the ventilator failure. For these reasons, we affirm the district court’s decision to exclude Dr. Gol-denring from testifying as an expert regarding the applicable standard of care and causation.

*536IV. Medical Negligence

¶ 15 Because Dr. Goldenring was not qualified to testify about the essential elements of Nguyen’s medical negligence claim, the district court properly granted Defendants summary judgment on the claim.7 Without an expert, Nguyen simply would be unable to prove that the standard of care had been breached. See Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct.App.1988) (“Due to the technical and complex nature of a medical doctor’s services, expert medical testimony must be presented at trial in order to establish the standard of care and proximate cause — except in unusual circumstances.”); Hoopiiaina v. Intermountain Health Care, 740 P.2d 270, 271 (Utah Ct.App.1987) (noting importance of expert testimony in medical malpractice actions “to establish: 1) the standard of care, 2) defendant’s failure to comply with that standard, and 3) that defendant caused plaintiffs injuries”) (citations omitted).

V. Failure to Obtain Informed Consent

¶ 16 The district court improperly dismissed Nguyen’s claim for failure to obtain informed consent. The court based its dismissal on the fact that Nguyen’s expert could not “expertly address what information should or should not have been conveyed about the overall risks and benefits of the transport.” Nguyen argues on appeal, and we agree, that he did not need an expert to establish Defendants’ failure to obtain informed consent to use the ventilator.8

¶ 17 Often, an expert is needed to determine if the information provided in the course of securing informed consent was adequate. See generally Goddard v. Hickman, 685 P.2d 530, 533 (Utah 1984) (“Evidence of what information a patient should have to be able to give informed consent was given by the plaintiffs expert.”); Chadwick, 763 P.2d at 821 n. 4 (stating that “at a minimum, expert testimony is required in cases alleging a lack of informed consent to prove the materiality of the risk involved”). However, in this case, Nguyen bases his claim not on perceived deficiencies in the disclosures made, but on the complete absence of any disclosure about the untested nature of the ventilator and the risks of its use. If Nguyen’s theory had been that disclosures were made to him but the disclosures were misstated or did not include material information, such as the fact that FDA approval was relatively recent or that there was a possibility a screw might come loose and cause the ventilator to malfunction, then it may well be that Nguyen would need an expert to establish exactly what information he was entitled to have disclosed to him. See Chadwick, 763 *537P.2d at 821 n. 4. Instead, Nguyen claims that he was entitled to know one basic fact, the obvious importance of which does not require an expert to explain — i.e., that this ventilator was unproven and was being tested by the hospital to determine if it should be purchased.9

¶ 18 “Where the physician fails to disclose to his patient any information concerning a material fact, there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony.” Nixdorf v. Hicken, 612 P.2d 348, 355 (Utah 1980) (emphasis added). An expert is not needed to establish that Nguyen should have been informed that the ventilator was in the hospital on a trial basis for experimental purposes; that it was still under evaluation; that it was actually intended for “life flight” transport; and, most importantly, that the ventilator had not once been used on a patient. Cf. id. at 352 (“[EJxpert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman. The loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies this type of treatment.”). Because there was a total absence of any disclosure about the ventilator’s experimental status and because the court’s sole rationale given for granting summary judgment was the absence of expert testimony, we reverse the grant of summary judgment in favor of Defendants on the claim of failure to obtain informed consent. On that claim, we remand for trial or such other disposition as may now be proper.

CONCLUSION

¶ 19 The district court properly granted summary judgment to Defendants on Nguyen’s claims of intentional infliction of emotional distress, punitive damages, and negligence. And the district court properly excluded Nguyen’s expert. However, the district court erred in relying on the lack of expert testimony in granting summary judgment on Nguyen’s claim for failure to obtain informed consent. That claim is remanded to the trial court. The parties will bear their own costs on appeal.

¶ 20 I CONCUR: CAROLYN B. McHUGH, Associate Presiding Judge.

THORNE, Judge

(concurring in part and dissenting in part):

¶21 I concur in parts III, IV, and V. I respectfully dissent from parts I and II. I disagree with the majority opinion that the district court properly granted Defendants’ summary judgment motions on Nguyen’s claim for intentional infliction of emotional distress and punitive damages claim.

¶ 22 In particular, I disagree with the majority’s conclusion that the district court correctly granted Defendants’ summary judgment motion for intentional infliction of emotional distress because no evidence existed to show, as a matter of law, that Defendants intended to cause emotional distress or that the conduct was outrageous. See supra ¶¶ 9, 10. The evidence in this case is such that a reasonable person might conclude that Defendants’ conduct has been sufficiently extreme and outrageous to result in liability. Under the circumstances of this case, it would be possible for a jury to reasonably find that Defendants acted in an outrageous manner.

¶23 The evidence before the trial court included testimony that at the time of its use on Derek the sales model ventilator had not been tested, attached to, or previously used to transport anyone; a committee was assembled to test, evaluate, and acquire a new life-flight transport ventilator (the CTM committee); a clinical evaluation previously scheduled had not taken place as arranged; Defendants’ agents were subject to rules governing use of the sales model, which prohibited use on any critically-ill or medically unstable child without obtaining parental *538consent; Derek was critically ill and medically unstable, and Defendants’ agents did not obtain the consent of Derek’s father; Defendants’ agent Dr. Madeline Witte, a CTM committee member, decided to use the sales model on Derek; Defendant’s agent Tammy Bleak, chairperson of the CTM committee, had a duty to assess the reliability of the sales model for patient use pursuant to the hospital’s testing and evaluation requirements before allowing its use on a patient outside of the testing and evaluation parameters; the sales model was used on Derek in the presence of the salesman and personnel assigned to evaluate the sales model; Ramsey Worman, a CTM committee member, testified that he felt inspection of the ventilator was inadequate and he disagreed with the decision to test it on any patients; and during transport the sales model malfunctioned and Derek died.

¶24 Based on this evidence reasonable minds could differ on whether Defendants’ actions would “evoke outrage or revulsion” sufficient to be considered outrageous conduct. See Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 53, 194 P.3d 956 (internal quotation marks omitted). A reasonable jury could determine that Defendants’ agents’ actions were motivated by the need to test the sales model and in complete disregard of the potential risk to the critically-ill child who may not be able to tolerate a brief interruption, and conclude that such actions constituted outrageous conduct. “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Id. ¶ 52 (internal quotation marks omitted). As a result, I disagree with the majority that Defendants were entitled to judgment as a matter of law.

¶ 25 I also disagree with the majority’s determination that the district court properly granted Defendants’ summary judgment motion on Nguyen’s punitive damages claim. Based on the same facts and conduct summarized above, a reasonable jury could determine that Defendants’ actions to pursue testing of the sales model despite the risks to the critically-ill child were “willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others,” see Utah Code Ann. § 78B-8-201(l)(a) (2008), as required for Nguyen to prove he is entitled to punitive damages. Therefore, I would hold that the grant of summary judgment on the punitive damages claim was also improper.

¶ 26 I would reverse and remand the matter for a trial on the merits of Nguyen’s claims of intentional infliction of emotional distress and punitive damages.

Nguyen v. IHC Health Services, Inc.
232 P.3d 529 2010 UT App 85

Case Details

Name
Nguyen v. IHC Health Services, Inc.
Decision Date
Apr 22, 2010
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232 P.3d 529

2010 UT App 85

Jurisdiction
Utah

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