United States District Court, W.D. Oklahoma
WALTER HAMILTON and DIANNA HAMILTON, Individually and as Legal Guardians of the Person and Estate of KAITLIN HAMILTON, An incapacitated person, Plaintiffs,
BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER PHARMA AG, BAYER CORPORATION, BAYER HEALTHCARE LLC, BAYER HEALTHCARE AG and BAYER AG, Defendants.
MEMORANDUM OPINION AND ORDER
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
have filed a Motion for Partial Summary Judgment on Specific
Causation (Dkt. No. 30), a Motion to Exclude the Expert
Opinions and Proposed Testimony of Gladys Tse, M.D.,
Alexander J. Kennedy, M.D., Scott Richard Laker, M.D., Aaron
B. Waxman, M.D., PHD, FACP, FCCP, and Jeffery Barlow, DNP,
APRN-CNP, FNP-C, CME, CRNFA (Dkt. No. 33), and a Motion for
Summary Judgment to Strike Certain of Defendants'
Affirmative Defenses (Dkt. No. 34). Each of these Motions
hinges on a central question: Does the alleged negligence of
certain of Plaintiff Kaitlin Hamilton's
(“Kaitie”) medical providers limit
Defendants' liability to Plaintiffs? The question posed
by Defendants is whether the action or inaction of
Kaitie's medical providers is a supervening cause which
breaks the chain of causation or a mere intervening event?
was prescribed YAZ by her dermatologist to control her acne.
The parties are in agreement that a combined oral
contraceptive (“COC”) such as YAZ increases the
risk of blood clots. Likewise, it is undisputed that at the
time she developed a venous thromboembolic event
(“VTE”), Kaitie was taking YAZ. Finally, the
parties are in agreement that Kaitie's VTE manifested as
a deep vein thrombosis (“DVT”), that the DVT
travelled to her lungs and ultimately led to the injuries of
which Plaintiffs complain in this action. On occasions prior
to suffering the pulmonary embolism, Kaitie presented to
various medical providers seeking care for pain in her lower
left leg. Defendants argue that these medical providers
failed to realize the risk of a DVT and failed to provide
prompt assessment and care for that condition. Defendants
argue those failures were negligent and therefore Defendants
are relieved of liability for Plaintiffs' injuries. For
purposes of this Order, the Court will assume that the
allegations of medical negligence raised by Defendants can be
law recognizes that the chain of causation can be broken by
intervening events. See Johnson v. Hillcrest Health Ctr.,
Inc., 2003 OK 16, ¶ 21, 70 P.3d 811, 819:
The general rule is that a causal chain between a negligent
act and an injury may be broken by an intervening event-a
supervening cause. Not every intervening event severs the
causal link between the negligent act and injury. When a
cause merely combines with another act to produce injury, or
several events coincide to bring about a single injury, each
negligent actor may be held accountable.
(footnotes omitted). Before a subsequent event can be found
to be a supervening cause, it must meet three elements:
“(1) independent of the original act, (2) adequate of
itself to bring about the result and (3) one whose occurrence
was not reasonably foreseeable.” Thompson v.
Presbyterian Hosp., Inc., 1982 OK 87, ¶ 15, 652
P.2d 260, 264. Plaintiffs argue that any negligence by
Kaitie's medical providers was reasonably foreseeable and
therefore that negligence cannot be a supervening cause. For
this point Plaintiffs rely on Atherton v. Devine,
1979 OK 132, 602 P.2d 634. In that case the Oklahoma Supreme
It has long been the rule in Oklahoma that an original
wrongdoer, negligently causing injury to another is liable
for the negligence of a physician who treats the injured
person where the negligent treatment results in the
aggravation of injuries, so long as the injured person
exercises good faith in the choice of his physician.
Id. at 1979 OK 132, ¶ 5, 602 P.2d at 636.
Plaintiffs argue this case establishes that any negligence by
Kaitie's treating physicians cannot, as a matter of law,
be a supervening cause.
argue that Plaintiffs' Motions overlook a critical
exception to the general rule relied on by Plaintiffs.
Defendants direct the Court to Carmichael v. Beller,
1996 OK 48, 914 P.2d 1051. According to Defendants, in
Carmichael the Oklahoma Supreme Court noted an
the general rule is that an original tortfeasor, negligently
causing injury to a third person, is liable for the
negligence of a physician who treats the injured person where
negligent treatment results in aggravation of or increasing
the injuries, so long as the injured person exercises good
faith in the choice of physicians.
Id. at 1996 OK 48, ¶ 8, 914 P.2d at 1055. The
Oklahoma Supreme Court noted that the “original
tortfeasor is liable only for the risks normally inherent in
submitting to medical, surgical or hospital treatment, not
harm caused by extraordinary misconduct of health care
providers or harm outside the risks which are incidental to
treatment made necessary by the original tortfeasors'
wrongdoing.” Id. at ¶ 18, 1058.
Defendants argue that the alleged medical negligence of
Kaitie's medical providers was extraordinary. Thus,
Defendants assert, the general rule does not apply and they
should be permitted to present evidence that the medical
negligence of Kaitie's medical providers was the cause of
her pulmonary embolism and subsequent injuries.
Court finds no merit in Defendants' arguments. The
Oklahoma Supreme Court offered examples of
“extraordinary negligence” and the alleged
misconduct of Kaitie's medical providers falls well short
of those examples. The type of extraordinary acts
contemplated by the Oklahoma Supreme Court were “a
nurse, unable to bear the sight of the victim's intense
suffering, gives an injection of morphine in disobedience of
the surgeon's instructions and so excessive she knows it
might be lethal” or where a victim takes
“advantage of a hospital stay to have an unrelated
procedure performed, e.g. victim's initial injury is a
broken leg, but examination reveals an unrelated hernia for
which surgery is negligently performed.” Id.
Because there is no evidence from which a reasonable jury
could find that the alleged medical negligence of
Kaitie's medical providers was “extraordinary,
” the general rule applies. Thus, no evidence of the
alleged medical negligence of Kaitie's medical providers
will be presented to the jury.
argue that Defendant's own experts provide testimony
establishing that YAZ was the cause of Kaitie's injury
and therefore they are entitled to judgment on the issue of
causation. As the Court found in its ruling on Defendant
Bayer's Motion for Summary Judgment, questions of fact
remain on this issue and it will proceed to trial.
reasons set forth herein, Plaintiffs' Motion for Partial
Summary Judgment on Specific Causation (Dkt. No. 30) is
DENIED. Plaintiffs' Motion to Exclude the Expert Opinions
and Proposed Testimony of Gladys Tse, M.D., A. Alexander J.
Kennedy, M.D., Scott Richard Laker, M.D., Aaron B. Waxman,
M.D., PHD, FACP, FCCP, and Jeffery Barlow, DNP, APRN-CNP,
FNP-C, CME, CRNFA (Dkt. No. 33) is GRANTED. Finally,