Ruiz v. Killebrew , 2020 UT 6 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 6IN THE
SUPREME COURT OF THE STATE OF UTAH
LUCIANA RUIZ,
Appellant,
v.
CLAUDIA KILLEBREW *,
Appellee.
No. 20180882
Heard November 15, 2019
Filed February 13, 2020
On Direct Appeal
Fourth District, Provo
The Honorable Lynn W. Davis
No. 160400532
Attorneys:
Charles H. Thronson, Salt Lake City, for appellant
Nan T. Bassett, Shawn McGarry, Jeremy Speckhals, Salt Lake City,
for appellees Claudia Killebrew and Mount Timpanogos
Women’s Health Center
JoAnn E. Bott, John T. Nelson, Douglas J. Crapo, Salt Lake City,
for appellee IHC Health Services, Inc.
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
__________________________________________________________
*Other appellees in this case are: MOUNT TIMPANOGOS
WOMEN’S HEALTH CENTER and IHC HEALTH SERVICES, INC. Kari
Lawrence was a party below but is not a party to this appeal.
RUIZ v. KILLEBREW
Opinion of the Court
INTRODUCTION
¶1 This case boils down to a simple question: Has the
plaintiff produced expert evidence that creates a genuine dispute
of material fact as to the causation element of her medical
malpractice claim? The plaintiff, Luciana Ruiz, argues that there is
a dispute as to whether the defendants’ failure to deliver her baby
before 10:30 p.m. caused her baby’s injuries. The defendants, IHC
Health Services, Inc. (Hospital) and midwife Claudia Killebrew,
contend that Ruiz has not produced evidence that their alleged
lack of due care delayed the baby’s birth past 10:30 p.m. We agree
with the defendants. Because Ruiz has failed to provide evidence
that the defendants’ specific alleged breaches in the standard of
care caused Ruiz’s minor child’s injuries, we affirm the district
court’s grant of summary judgment for the defendants.
BACKGROUND
¶2 On the morning of August 13, 2003, Ruiz—pregnant
with G.R.—was admitted to American Fork Hospital 1 for a
planned labor induction. Throughout the day, she received care
from the Hospital’s labor-and-delivery nurses and from a
midwife, Claudia Killebrew.
¶3 That night, at around 10:00 p.m., the fetal monitor strip
showed that G.R. was in distress. At the same time, the nurses set
up for delivery. Shortly afterwards, at 10:04 p.m., Ruiz started to
push. Then at 10:28 p.m., the medical team placed a fetal scalp
electrode on the baby. Two minutes later, Dr. Kari Lawrence (an
obstetrician-gynecologist) was paged. She arrived at 10:50 p.m.
and delivered the baby, G.R., vaginally at 11:04 p.m. According to
Ruiz’s experts, because G.R. was not delivered until after 10:30
p.m., he was injured. Specifically, he had suffered from hypoxia—
a lack of oxygen—and as a result, sustained brain damage.
¶4 Almost thirteen years later, Ruiz, as parent and natural
guardian of her minor child, G.R., sued the Hospital and
Killebrew. 2 She alleged that the Hospital’s labor-and-delivery
nurses and Killebrew inadequately monitored Ruiz’s labor. She
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1 IHC Health Services, Inc. was doing business as American
Fork Hospital.
Killebrew’s employer at the time was Mount Timpanogos
2
Women’s Health Center, who is a party to this litigation as well.
2
Cite as: 2020 UT 6Opinion of the Court
also said that G.R. “suffered fetal distress during labor and that
failure to deliver him sooner caused him an hypoxic brain injury
leaving him handicapped.”
¶5 There are two summary judgment orders at issue on
appeal. First, the district court granted partial summary judgment
for the defendants, dismissing G.R.’s claims for premajority
medical expenses—i.e., expenses he would incur before turning
eighteen. Later, the district court dismissed G.R.’s remaining
negligence claims (claims for medical expenses incurred after he is
no longer a minor) because Ruiz had “failed to provide evidence
that would establish the necessary causal link between the alleged
breaches in standard of care and the supposed injury” to G.R.
¶6 Ruiz appealed both summary judgment orders. We have
jurisdiction under Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶7 Summary judgment is proper if “the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.”
UTAH R. CIV. P. 56(a). And when reviewing a grant of summary
judgment, we examine a district court’s conclusions of law for
correctness, giving them no deference. Bowman v. Kalm, 2008 UT 9,
¶ 6, 179 P.3d 754. “[W]e view the facts in the light most favorable
to the non-moving party.” Id.ANALYSIS
¶8 The dispositive issue on appeal is whether the expert
testimony created a genuine dispute of material fact as to the
causation element of Ruiz’s negligence claim. 3 To decide the issue,
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3 Ruiz also appeals the partial summary judgment order,
arguing that the district court erred in dismissing G.R.’s claim for
premajority expenses. In granting partial summary judgment for
the defendants, the district court held that Utah follows the
common law rule that “only a parent may recover for a minor
child’s pre-majority medical expenses.” It reasoned that the
“common law and Utah precedent reflect the majority rule that
pre-majority expenses generally belong to the parent.” Because
the district court properly dismissed Ruiz’s medical malpractice
claim for want of causation testimony, we need not decide
whether it erred by dismissing G.R.’s claim for unpaid
premajority medical expenses. We write only to say that we are
(continued . . .)
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RUIZ v. KILLEBREW
Opinion of the Court
we first outline the elements of a medical malpractice claim,
zeroing in on proximate cause. Then we lay out Ruiz’s evidence as
to the defendants’ breaches in the standard of care and about
causation. Finally, we discuss whether Ruiz has shown a genuine
dispute of material fact as to whether the defendants’ alleged
breaches caused G.R.’s injuries. She has not. Even though her
experts provided testimony that G.R. was injured because he was
not delivered before 10:30 p.m., there is no expert testimony that
the defendants’ lack of due care made it so G.R. was not delivered
before 10:30 p.m. Summary judgment for the defendants was thus
proper.
I. PROXIMATE CAUSE IN MEDICAL MALPRACTICE CASES
¶9 A claim for medical malpractice requires a plaintiff to
prove four elements: “(1) the standard of care by which the
[medical professional’s] conduct is to be measured, (2) breach of
that standard by the [medical professional], (3) injury that was
proximately caused by the [medical professional]’s negligence,
and (4) damages.” Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 96, 82
P.3d 1076 (citation omitted). At issue here is the third element of
medical malpractice—whether G.R.’s injury was proximately
caused by the defendants’ negligence.
¶10 The proximate-cause element requires the plaintiff to
show that the alleged breach, “in natural and continuous
sequence, unbroken by an efficient intervening cause, produce[d]
the injury” and that without the alleged breach “the result would
not have occurred.” Butterfield v. Okubo, 831 P.2d 97, 106 (Utah
1992) (citation omitted). The plaintiff can meet this burden by
providing “evidence upon which a reasonable jury could infer
causation.” Id. But the jury cannot be left to “speculate and guess
on too many elements in the chain of causation.” Jackson v.
Colston, 209 P.2d 566, 569 (Utah 1949).
somewhat skeptical that a minor does not have a separate interest
in medical expenses that have not yet been paid for. To be sure,
parents alone have a claim against a tortfeasor for past medical
expenses they have paid for. See Ostertag v. La Mont, 339 P.2d
1022, 1026 (Utah 1959) (holding that a minor did not have a claim
for medical expenses paid for by his father). But that does not
automatically mean that minors do not have a distinct claim for
unpaid premajority medical expenses.
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¶11 To ensure that the jury is not left to speculate, plaintiffs
may not provide just any evidence of proximate cause: They must
generally “produce expert testimony that the medical
professional’s negligence proximately caused the plaintiff injury.”
Butterfield, 831 P.2d at 102 (emphasis added); see also Bowman v.
Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754. 4 The expert-testimony
requirement exists because “most medical malpractice cases
depend upon knowledge of the scientific effect of medicine.”
Bowman, 2008 UT 9, ¶ 7 (citation omitted). And so “the standard
of care and the causal link between the negligence and the injury
are usually not within the common knowledge of the lay juror.”
Id. Expert testimony thus “ensure[s] that factfinders have
adequate knowledge upon which to base their decisions.” Id.II. EXPERT TESTIMONY ABOUT BREACHES IN THE
STANDARD OF CARE AND CAUSATION
¶12 Having reviewed the proximate-cause element of a
medical malpractice claim, we analyze whether the district court
properly dismissed Ruiz’s claim for the lack of this element. To do
so, we must first identify the alleged breaches of the standard of
care. Butterfield v. Okubo, 831 P.2d 97, 104 (Utah 1992) (“Because
we cannot determine whether [the expert] sufficiently averred a
causal link between defendants’ purported negligence and [the
baby’s] death without knowing what negligence [the expert]
identified, we will examine [the expert’s] affidavit for specific
allegations of negligence before we turn to the question of
causation.”). After that, we examine the testimony as to causation.
A. Expert Testimony About Alleged Breaches in the Standard of Care
¶13 To stave off summary judgment, Ruiz must produce
expert testimony that the defendants’ negligence proximately
caused G.R.’s injury. Thus we focus on the expert testimony about
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4 Not every medical malpractice case requires expert
testimony. We have recognized a “limited ‘common knowledge’
exception to the general requirement, which may excuse a lack of
expert testimony in some circumstances.” Bowman v. Kalm, 2008
UT 9, ¶ 9, 179 P.3d 754. The common-knowledge exception
“applies when the causal link between the negligence and the
injury would be clear to a lay juror who has no medical training—
i.e., when the causal connection is readily apparent using only
‘common knowledge.’” Id. This exception has not been raised by
the parties here.
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RUIZ v. KILLEBREW
Opinion of the Court
how the nurses and Killebrew breached the standard of care. Ruiz
designated two standard-of-care experts—Tracy Keith to opine on
the labor-and-delivery nurses’ breaches of the standard of care
and Janis Cox to testify as to the midwife’s breaches of the
standard of care.
1. The Nurses’ Alleged Breaches in the Standard of Care
¶14 Keith, the sole standard-of-care expert as to the labor-
and-delivery nurses, testified that the nurses breached the
standard of care in seven ways:
(1) “Failed to assess, recognize, and/or document fetal
heart rate and decelerations[5] in a timely manner;”
(2) “Should have waited before increasing oxytocin[6]
([also known as] Pitocin or ‘Pit’);”
(3) “Should have recognized tachysystole[7] and
lowered the oxytocin;”
(4) “Should have repositioned the patient and/or
performed other interventions;”
(5) “Failed to timely place a fetal scalp electrode;” 8
(6) “Allowed Ms. Ruiz to push without a documented
fetal heart rate assessment;” and
(7) “Failed to document that Killebrew was present and
aware of difficulty in obtaining a continuous heart
rate tracing.” 9
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5 Dr. Luciani testified that late decelerations are “indicative of
fetal hypoxia” and that variable decelerations “come from cord
compression.”
6From the expert testimony, it appears that oxytocin is a drug
used to induce labor.
7According to Keith, “[t]achysystole is more than five
contractions in a ten-minute period.”
8 The expert testimony explains that a fetal scalp electrode is a
device that allows a medical professional to “monitor the fetal
heart rate.”
The Hospital identified these seven breaches in its motion for
9
summary judgment, citing to lines of Keith’s deposition. Ruiz
(continued . . .)
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For more context, we now emphasize the timing of the seven
breaches, along with any pertinent details.
¶15 As for the first breach, the nurses breached the standard
of care by not assessing or documenting the fetal heart rate several
times between 12:00 p.m. and 10:26 p.m. They also breached the
standard of care by not recognizing or documenting decelerations
many times between 12:15 p.m. and 9:35 p.m.
¶16 The nurses’ second breach came at 12:32 p.m. when they
increased the oxytocin. The third breach happened at 6:15 p.m.;
the nurses failed to recognize or document tachysystole and did
not lower the oxytocin. The fourth breach is related to the first
breach. The nurses lacked due care by not intervening—e.g., by
changing the patient’s position—in response to the decelerations
that occurred at 7:18 p.m., 7:21 p.m., 9:12 p.m., 9:14 p.m., 9:16 p.m.,
and 9:18 p.m. As for the fifth breach, the nurses lacked due care
by not placing a fetal scalp electrode at 10:04 p.m. The sixth breach
happened when the nurses allowed Ruiz “to push without a fetal
heart rate assessment” from 10:01 p.m. to 10:31 p.m. And the
seventh breach occurred from 10:04 p.m. to 10:11 p.m., when the
nurses did not document that they notified Killebrew of their
“inability to locate the fetal heart rate.”10
responded by admitting that Keith had testified to these breaches
and by adding, “Expert witness Nurse Keith also provided
substantial additional criticisms beyond these of the labor and
delivery nurses at defendant Hospital.” But Ruiz did not specify
what those criticisms were, nor did she cite to the record for that
argument. We review only what was properly presented to the
district court. Stichting Mayflower Mountain Fonds v. United Park
City Mines Co., 2017 UT 42, ¶ 43, 424 P.3d 72 (“The district court
had no duty to look beyond [the plaintiff’s] bald statements to
identify supporting evidence buried somewhere in the record.”).
Thus we limit our review to these seven breaches and the specific
deposition testimony cited to for support.
10The Hospital points out that Ruiz said in her brief that “the
Hospital’s nurses breached the standard of care by ‘fail[ing] to
contact on-call Ob-Gyn Dr. Lawrence.’” This argument, the
Hospital contends, is not preserved because it was “never made to
the district court or at any time and her brief cites no record
evidence.” Ruiz did not respond to this argument in her reply
(continued . . .)
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RUIZ v. KILLEBREW
Opinion of the Court
2. Killebrew’s Alleged Breaches in the Standard of Care
¶17 We now pivot to the expert testimony about the ways in
which Killebrew breached the standard of care. Cox, the only
standard-of-care expert as to midwifes, testified that Killebrew
breached the standard of care in four ways:
(1) “Failure to apply a fetal scalp electrode;”
(2) “Failure to utilize an intrauterine pressure catheter
with Pitocin in a vaginal birth after Cesarean;” 11
(3) “Failure to notify [obstetrician-gynecologist]
Dr. Lawrence and get her involved earlier;” and
(4) “Failure to stop Pitocin.”
Again, we draw attention to the timing and relevant details of
these four alleged breaches.
¶18 The first breach arose at 7:12 p.m. At that point,
Killebrew should have placed and left on a fetal scalp electrode
“so that the baby could have been monitored internally.”
According to Cox, with a fetal scalp electrode, a midwife “should
be able to get a continuous fetal heart tone.”
¶19 The record is muddy as to what time the second breach
occurred. But Cox did explain that placing an intrauterine
pressure catheter allows a midwife to know about any
decelerations in the baby’s heartrate.
¶20 The third breach happened at 7:12 p.m. According to
Cox, at that time, “Dr. Lawrence should have been notified and
just kept . . . updated on the . . . progress of this patient . . . .”
¶21 Killebrew’s fourth breach, according to Cox, happened
at 10:00 p.m. Cox explained that a midwife should not “run
Pitocin without an adequate fetal heart strip” if the midwife is
“going to have [the mother] start pushing.”
brief. We agree with the Hospital, and so do not consider this
alleged breach.
11 According to Cox, an intrauterine pressure catheter allows a
medical professional to “see the actual pressure that’s being
exerted on the uterus.” It is used when a woman is going to have
a vaginal birth, aided by Pitocin, but had a cesarean section for a
prior delivery.
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B. Expert Testimony About Proximate Cause
¶22 Having reviewed the testimony as to the nurses’ and
midwife’s lack of due care, we turn to the causation experts’
testimony. Ruiz argues that two causation experts—Dr. Michael
Katz and Dr. Richard Luciani—have established that “it was the
failure on the part of those attending this labor (the nurses and
nurse midwife) to recognize evidence of fetal distress in G.R. and
to expedite in any fashion delivery of G.R. prior to 10:30 p.m. and
that proximately caused G.R.’s brain damage.” 12
¶23 Dr. Katz agreed that “it was the delay in delivering
[G.R.] . . . that led proximately to his injury.” Dr. Katz did not
testify that the midwife’s or the nurses’ lack of due care caused
the hypoxia; he testified only that the child would “not have been
neurologically impaired” had he been delivered an hour earlier.
More specifically, he agreed that “if the child had been delivered
during some time prior to that last hour, the probability is that the
child would have been neurologically intact.”
¶24 Dr. Luciani 13 explained the fetal monitor strips from
10:03 p.m. to 11:07 p.m. He said that “the baby was absolutely fine
prior to 10 p.m. in terms of its fetal monitoring.” But starting at
10:03 p.m., the fetal monitor strips showed “late decelerations.”
And those late decelerations were “absolutely indicative of fetal
hypoxia.” 14 Then, beginning at 10:11 p.m., the fetal monitor strip
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12 Neither Dr. Katz nor Dr. Luciani testified as to breaches in
the standard of care. That is because during discovery, the parties
stipulated that each party would have only one standard-of-care
expert per specialty—i.e., Keith would be the one standard-of-care
expert for the labor-and-delivery nurses and Cox would be the
sole standard-of-care expert as to Killebrew. Besides that, in
Katz’s and Luciani’s depositions, they were careful to clarify that
they were not speaking as to breaches in the standard of care.
13 Before his deposition, Dr. Luciani did not read the
depositions of the standard-of-care experts. After his deposition,
Dr. Luciani submitted a correction sheet for his deposition. In it,
he said that he had “subsequently reviewed the depositions of
Janis Cox CNM and Tracy Keith RN which did not change my
opinions in this case.” The correction sheet, however, has no effect
on our analysis, since it did not add testimony creating a link
between the defendants’ alleged breaches and G.R.’s injuries.
14 Hypoxia is the “decreased oxygenation of the fetus.”
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Opinion of the Court
showed “variable decelerations.” 15 A few minutes later, at 10:19
p.m., the fetal monitor strip was still “nonreassuring,” showing
signs of hypoxia.
¶25 Dr. Luciani ultimately concluded that “major damage
occurred after [10:30 p.m.] because of the persistent hypoxia and
acidosis that was developing.” That conclusion is reiterated in a
note that Dr. Luciani attached to his deposition, which read:
“Earlier delivery before 10:30 p.m. equals normal or markedly less
injured infant. Nonreassuring strips after 10 p.m. . . . The failure to
recognize the problem and expedite delivery, led to infant born
damaged.” In his deposition, he was asked whether he was saying
in this note that the “baby should have been delivered before
10:30 p.m.” “That’s not what I said,” he responded, “The way I
wrote it down is that, in my opinion, if the baby was born before
10:30 p.m., based on what I’ve seen in the fetal monitor strips, that
baby would have been either normal or markedly less injured. . . .
I believe that major damage occurred after [10:30 p.m.] because of
the persistent hypoxia and acidosis that was developing.”
III. RUIZ HAS NOT SHOWN A GENUINE DISPUTE OF
MATERIAL FACT AS TO WHETHER G.R.’S INJURY WAS
PROXIMATELY CAUSED BY THE DEFENDANTS’ LACK OF
DUE CARE
¶26 Having discussed the expert testimony on lack of due
care and causation, we now turn to whether Ruiz has produced
expert testimony of a causal link between the defendants’ specific
breaches in the standard of care and G.R.’s injury. We agree with
the district court: Neither Dr. Luciani nor Dr. Katz offered
evidence that G.R.’s injury was caused by the defendants’ alleged
breaches. 16
¶27 Our opinion in Anderson v. Nixon serves as an example of
a medical malpractice case in which there was insufficient
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15“[V]ariable decelerations . . . come from cord compression,”
which “can lead to fetal hypoxia.”
16 As the Hospital points out, Ruiz’s opening brief on appeal
“cites to no testimony from Tracy Keith, R.N.” Nor does she cite
to testimony from Cox. This is odd, given that Ruiz must show a
causal link between breaches in the standard of care and G.R.’s
injury. “We will not make or develop [Ruiz’s] arguments for
[her].” State v. Gomez, 2002 UT 120, ¶ 20, 63 P.3d 72.
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causation evidence. 139 P.2d 216 (Utah 1943), overruled on other
grounds by Swan v. Lamb, 584 P.2d 814 (Utah 1978). There, a patient
alleged that he was injured because the defendant physician had
been negligent, among other things, (1) by failing to diagnose his
condition correctly by a specific date and (2) by not giving blood
transfusions. Id. at 218. We held that there was insufficient
evidence that these alleged negligent acts were the proximate
cause of the patient’s injury. Id. at 220. We noted that “[t]here was
no expert evidence” that the patient’s injury “could have been
avoided” if the physician had correctly diagnosed the patient on
time. Id. Also, “[n]o expert testified that had [the doctor]
recognized the symptoms” earlier, “he could have alleviated or
cured it.” Id. Even though one expert testified that blood
transfusions were “beneficial in blood stream infections”—such as
the infection the patient had—no expert testified that “had there
been transfusions the end result might have been avoided.” Id. In
short, “there was no evidence that anything [the physician] did or
failed to do . . . caused the end result.” Id.
¶28 As in Anderson, Ruiz’s experts have solved only part of
the medical malpractice equation. Cox and Keith testified that the
defendants breached the standard of care in many ways. And
Dr. Luciani and Dr. Katz “testified that [G.R.] suffered from a
hypoxic event or lack of oxygen to his brain at or during the last
half hour of his birth.” But, like in Anderson, Ruiz’s experts did not
knit together the defendants’ alleged breaches with the failure to
deliver G.R. by 10:30 p.m. They did not testify that if the
defendants had not breached the standard of care, G.R. would
likely have been born by 10:30 p.m., and thus “the end result
might have been avoided.” Id. at 220. It was not enough for Ruiz’s
causation experts to testify that G.R. would have been uninjured
or less injured had he been delivered by 10:30 p.m. The expert
testimony needed to show a genuine issue of material fact as to
whether the defendants’ breaches in the standard of care caused
G.R. to be delivered after 10:30 p.m., which in turn caused his
injuries. It did not do so.
¶29 Otero v. Salvidar—a Texas case—rightly illustrates what
is missing from Ruiz’s causation evidence. No. 13-17-00621-CV,
2018 WL 2372514 (Tex. App. May 24, 2018). There, a baby suffered
hypoxic ischemic encephalopathy—“a severe, permanent brain
injury caused by a lack of oxygen and blood flow”—during her
delivery. Id. at *1. A physician had been called to evaluate the
mother at 8:19 a.m. and performed a cesarean section at 9:22 a.m.
Id. Having been sued for negligence, the physician argued on
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Opinion of the Court
appeal that the trial court should have dismissed the claim
because the expert testimony did not adequately address
proximate causation. Id. at *1, 3.
¶30 Consistent with our case law, the Otero expert first
identified the breach. Id. at *4. (“[The physician] should have
ordered a C-Section at 08:20 am. . . .”) Then it linked that breach
with the baby’s injury. Id. (“[I]f [the physician] ordered a STAT C-
Section at 08:20 then the baby would have been born by 08:50.
However, since [the physician] breached the standard of care by
failing to recognize the fetal distress and delayed delivering the
baby until 09:22 am, the baby suffered at least an extra 32 minutes
of fetal distress from lack of adequate oxygen. I believe within
reasonable medical probability that each minute of further delay
before 09:22 until [the baby] was delivered increased the extent of
her permanent injuries.”). This expert testimony, held the Texas
Court of Appeals, adequately addressed proximate cause since,
“according to [the expert’s] opinion, the extent of [the baby’s]
brain injury would not have occurred but for [the physician’s]
failure to act.” Id.
¶31 The Otero expert causation testimony underscores how
lacking Ruiz’s expert causation testimony is. Unlike the Otero
expert, Ruiz’s experts did not testify that the defendants’ breaches
in the standard of care “delayed delivering the baby” until
10:30 p.m. Indeed, there is no expert testimony here from which a
jury could reasonably infer that G.R. would have been born before
10:30 p.m. (1) if the nurses had not failed to assess, recognize, or
document the fetal heart rate and decelerations in a timely
manner; (2) if the nurses had not failed to wait before increasing
oxytocin; (3) if the nurses had recognized tachysystole and
lowered the oxytocin; (4) if the nurses had repositioned the
patient or performed other interventions; (5) if the nurses had
placed a fetal scalp electrode at 10:04 p.m.; (6) if the nurses had
not allowed Ruiz to push without a documented fetal heart
assessment; or (7) if the nurses had not failed to document that
Killebrew was present and aware of the difficulty in obtaining a
continuous heart tracing. In other words, there “was no expert
evidence,” that G.R.’s injury “could have been avoided” if the
nurses had not breached the standard of care. Anderson, 139 P.2d
at 220.
¶32 Suppose, for example, that the nurses had placed a fetal
scalp electrode at 10:04 p.m. What would have happened as a
result? Even if we were to assume that the fetal scalp electrode
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would have alerted the nurses to the fetal distress, would that
have prompted the nurses to respond in some way? (After all, at
that point, Ruiz was already pushing.) What should that response
have been? How long would that response have taken? And if
that intervention had taken place, would the delivery likely have
taken place before 10:30 p.m.? The answers to these questions
“depend upon knowledge of the scientific effect of medicine,”
Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754 (citation omitted),
and thus require expert testimony.
¶33 Likewise, there is no expert testimony from which a jury
could reasonably infer that G.R. would have been born before
10:30 p.m.—and would thus have likely been uninjured or less
injured—had Killebrew (1) applied a fetal scalp electrode at 7:12
p.m.; (2) used an intrauterine pressure catheter; (3) notified
Dr. Lawrence and gotten her involved earlier; or (4) stopped
Pitocin. Much like in Anderson, there was no testimony that, if
Killebrew had not breached the standard of care in these ways,
“the end result might have been avoided.” 139 P.2d at 220.
¶34 Imagine, for instance, if Killebrew had gotten
Dr. Lawrence involved at 7:12 p.m. instead of breaching the duty
of care by failing to do so. Would the results likely have been
different? What would Dr. Lawrence have done? Would she have,
for example, ordered a cesarean section? Was Ruiz even an
eligible candidate for a cesarean section? If so, what time would
that cesarean section have been ordered? How long would that
cesarean section have taken to set up and perform? And, absent a
cesarean section, what else could she have done to expedite
delivery? In short, would someone have likely been able to deliver
G.R. before 10:30 p.m.? Again, the answers to these questions are
“not within the common knowledge of the lay juror,” Bowman,
2008 UT 9, ¶ 7, and so cannot be left to the jury. This is especially
true considering Dr. Luciani’s testimony that “the baby was
absolutely fine prior to 10 p.m. in terms of its fetal monitoring.”
¶35 Ruiz would have us hold that, even though there is no
direct expert testimony connecting the defendants’ breaches with
G.R.’s injury, “Dr. Luciani’s testimony allows for an ‘easy and
legitimate inference’[17] that a medical professional monitoring
__________________________________________________________
17 We used the phrase “easy and legitimate inference” in
Butterfield v. Okubo, 831 P.2d 97, 106 (Utah 1992). By so doing, we
did not announce a new standard for proximate cause. That
(continued . . .)
13
RUIZ v. KILLEBREW
Opinion of the Court
fetal heart strips would detect late decelerations and prevent
injury.” She sees Dr. Luciani’s testimony as establishing “that it
was the failure to recognize . . . fetal hypoxia and to intervene to
deliver G.R. prior to 10:30 p.m. that lead to his brain injury.” But
Ruiz asks us to stretch the inference beyond reasonableness.
Without relying upon additional “knowledge of the scientific
effect of medicine,” a reasonable jury could not infer from
Dr. Luciani’s testimony that the defendants could or would have
done something to intervene or prevent injury. Put differently, the
jury could not infer that G.R. would likely have been delivered by
10:30 p.m. had the defendants monitored the labor properly. For
the reasons outlined above, it would simply be too big of a leap.18
¶36 At core, Ruiz has presented “no evidence from which a
lay person could infer that the course of . . . treatment and [G.R.’s]
ultimate injuries would have been any different had” the nurses
or Killebrew not lacked due care. Easterling v. Kendall, 367 P.3d
1214, 1229 (Idaho 2016). The defendants’ alleged breaches of the
standard of care and G.R.’s injury are two islands, unbridged by
expert causation testimony. And we cannot allow the jury to swim
from the former to the latter. See Morgan v. Intermountain Health
Care, Inc., 2011 UT App 253, ¶ 16, 263 P.3d 405 (“Without expert
testimony, a jury of laypersons could not be expected to sift
through this medical evidence and make a reliable finding of
phrase is synonymous with “reasonable inference.” See id. (noting
that, to jump the proximate-cause hurdle, a plaintiff must provide
“evidence upon which a reasonable jury could infer causation”).
18 At oral argument, Ruiz argued that this court should adopt
Chief Justice Wolfe’s concurrence in Anderson v. Nixon, 139 P.2d
216, 221 (Utah 1943), overruled on other grounds by Swan v. Lamb,
584 P.2d 814 (Utah 1978). Chief Justice Wolfe suggested that the
court apply a burden-shifting framework to medical malpractice
claims that involve negligent omissions. Id. at 222 (Wolfe, C.J.,
concurring) (proposing a framework in which, once a plaintiff
offers proof of omissions that are not “trivial or incidental,” the
defendant must “show that in the particular case under
consideration the measures advocated would not have changed
the result”). Ruiz, however, did not make this argument either in
her briefs on appeal or below on summary judgment. It is thus not
preserved, and we do not address it.
14
Cite as: 2020 UT 6Opinion of the Court
proximate cause.”). And so the district court did not err in
granting the defendants’ motion for summary judgment. 19
CONCLUSION
¶37 Because Ruiz has not shown a genuine dispute of
material fact as to the causation element of her medical
malpractice claim, we affirm the district court’s grant of summary
judgment for the defendants.
__________________________________________________________
19 Ruiz argues that we should remand to the district court with
instructions to reopen discovery if we do not find a genuine issue
of material fact as to the defendant’s negligence. But, as the
Hospital argues, that issue is not preserved because Ruiz never
sought a second chance for expert discovery from the district
court. Thus we do not address the issue.
15