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Winham v. Reese

Court of Appeals of Oklahoma, Division II

March 9, 2017

BILLIE WINHAM, an individual, Plaintiff/Appellant,
v.
JOE REESE, M.D., an individual; and THOMAS DAVID SCHILLER, M.D., an individual, Defendants/Appellees, and SAINT FRANCIS HOSPITAL, INC., an Oklahoma corporation; SAINT FRANCIS HEALTH SYSTEM, INC., an Oklahoma corporation; GASTROENTEROLOGY SPECIALISTS, INC., an Oklahoma corporation; SURGICAL ASSOCIATES, INC., an Oklahoma corporation; MICHAEL W. GRIFFIN, D.O., an individual; and WARREN CLINIC, INC., an Oklahoma corporation, Defendants.

          Mandate Issued: 04/17/2017

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY F. FITZGERALD, TRIAL JUDGE

          Kris Ted Ledford, LEDFORD LAW FIRM, Owasso, Oklahoma, for Plaintiff/Appellant

          Marthanda J. Beckworth, Rachael F. Hughes, ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & FIASCO A PROFESSIONAL CORPORATION, Tulsa, Oklahoma, for Defendants/Appellees Warren Clinic, Inc. and Joe Reese

          Galen L. Brittingham, James N. Edmonds, ATKINSON, HASKINS, NELLIS BRITTINGHAM, GLADD & FIASCO, A PROFESSIONAL CORPORATION, Tulsa, Oklahoma, for Defendants/Appellees Thomas David Schiller, M.D. and Gastroenterology Specialists, Inc.

          JOHN F. FISCHER, JUDGE

         ¶1 Appellant Billie Winham appeals an order granting summary judgment in favor of Joe Reese, M.D. and Thomas David Schiller, M.D. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Because the expert witness tendered by Ms. Winham was not qualified to offer an opinion regarding the negligence of the physician defendants, the district court did not err in granting their motion for summary judgment and we affirm.

         BACKGROUND

         ¶2 Ms. Winham underwent surgery in 2011 to remove a suspected bile duct stone. The surgery was performed by Dr. Schiller. Dr. Schiller performed an endoscopic retrograde cholangiopancreatography (ERCP) which is a diagnostic tool used to view and diagnose problems in the system of vessels between the gallbladder, pancreas, and duodenum. The ERCP procedure allows the gastroenterologist to proceed with further treatment, such as the endoscopic sphincterotomy at issue in this case.

         ¶3 Complications arose during Ms. Winham's procedure and she was hospitalized. Tests showed a possible perforation of her duodenum and she underwent additional surgery. Ms. Winham's post-operative care was provided by Dr. Schiller and Dr. Reese, among others who are not parties to this appeal.

         ¶4 Ms. Winham was readmitted to the hospital five times after her initial surgery. During this time she was often confused, disoriented and agitated. During each of her admissions she was seen by a number of physicians, including Dr. Reese. Her doctors determined that she had developed abscesses in her abdomen and was malnourished and suffering from dementia. She was eventually moved to a skilled nursing facility.

         ¶5 Ms. Winham filed suit, alleging that Dr. Schiller and Dr. Reese were negligent and did not satisfy the standard of care during her initial surgery and her post-operative care. Ms. Winham intended to offer the testimony of Dr. Bernard M. Jaffe as her medical expert. Dr. Schiller filed a motion in limine and a Daubert challenge to exclude and/or limit Dr. Jaffe's testimony, arguing that Dr. Jaffe was not qualified to testify as to the standard of care applicable to Dr. Schiller since Dr. Jaffe was not trained to and had never performed the procedure at issue. Further, Dr. Schiller argued that Dr. Jaffe's testimony was conjecture and was not reliable under a Daubert analysis. Dr. Reese filed a motion in limine to strike and/or limit the testimony of Dr. Jaffe and a motion for summary judgment. Dr. Reese asserted that Dr. Jaffe's testimony was not competent to prove either a breach of the standard of care or causation.

         ¶6 The district court granted Dr. Schiller's and Dr. Reese's motions in limine, limiting Dr. Jaffe's testimony to the standard of care for a "physician in general" and excluding any testimony regarding the standard of care for a specialist in internal medicine or gastroenterology. On the day of trial, Dr. Schiller and Dr. Reese re-urged their motions for summary judgment and the district judge granted them, finding that Dr. Jaffe was not ...


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