Ondobo v. Integris Baptist Med. Ctr. Inc.

543 P.3d 1229

2024 OK CIV APP 5

Georgette M. ONDOBO, Plaintiff/Appellant,

v.INTEGRIS BAPTIST MEDICAL CENTER INC., Integris Health, Inc., Robert Alan Schiermeyer, D.O., Defendants/Appellees.

Case No. 120,354

THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division No. 2

Court of Civil Appeals of Oklahoma, Division No. 2.

Filed May 2, 2023

Mandate Issued: February 1, 2024

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA; HONORABLE NATALIE MAI, TRIAL JUDGE

AFFIRMED

Georgette M. Ondobo, Middletown, DE, Pro Se

Glen D. Huff, David A. Branscum, Peyton S. Howell, FOLIART, HUFF, OTTAWAY & BOTTOM, Oklahoma City, Oklahoma, for Defendants/Appellees

OPINION BY STACIE L. HIXON, JUDGE:

¶1 Georgette M. Ondobo, pro se, appeals the district court’s May 17, 2022 journal entry granting summary judgment to Integris Baptist Medical Center Inc.; Integris Health, Inc.; and Robert Alan Schiermeyer, D.O. (collectively "Defendants"). The issue of whether the district court properly granted summary judgment turns on whether the court abused its discretion in finding the affidavit of Defendants’ medical expert was admissible but that the purported expert affidavits that Ondobo submitted in opposition to summary judgment were inadmissible. Based on our review of the record and applicable law, we affirm the journal entry.

BACKGROUND

¶2 On July 6, 2012, Ondobo, who was 36 weeks pregnant, underwent an emergency cesarean section ("c-section"), performed by Dr. Schiermeyer at Integris Baptist Medical Center ("the hospital"), after her infant was determined to be in distress. She was discharged from the hospital three days later, or on July 9, 2012. Two days later, or on July 11, 2012, Ondobo again presented to the hospital after a separation of her surgical wound, known as a wound "dehiscence," resulted in a hernia and caused part of her bowel to become entangled in the suture used to close the rectus fascia after her c-section. That same day, Dr. Kenneth Crawford performed surgery to repair the wound dehiscence. Ondobo periodically continued to complain of gastrointestinal issues and had multiple studies conducted in 2014 and 2016, such as a CT scan of her abdomen and a colonoscopy, all of which returned "normal" results. About nine years after her c-section, or in August 2021, Ondobo underwent a hiatal hernia repair procedure. Ondobo maintains that the repair surgery in the days following her c-section, her subsequent gastrointestinal issues, and her 2021 surgery were the result of Dr. Schiermeyer’s negligence in performing her c-section.

[1, 2] ¶3 Ondobo initially filed suit against Defendants on July 7, 2014, alleging a negligence theory of recovery, though the docket shows the case was dismissed without prejudice. Ondobo later refiled suit on October 10, 2014.¹ After years of litigation, Defendants filed a motion for summary judgment in November 2021. They argued there was no dispute of material fact that Defendants had not breached their duty to Ondobo and had not caused her alleged injuries. Defendants attached evidentiary materials in support of their motion, including an affidavit from Dr. Anthony Jackson, a board-certified physician practicing Obstetrics and Gynecology in Oklahoma City, opining that the medical care rendered to Ondobo was within the standard of care, and no medical negligence by any defendant caused her injury.² Defendants also argued that Ondobo had failed to provide any expert testimony to show a breach of the standard of care or causation.

¶4 Ondobo responded to Defendants’ motion and submitted her own affidavit purporting to be an expert witness as she is a licensed nurse practitioner. She also attached an affidavit of Seraphin Fokoua, a board-certified physician in Obstetrics and Gynecology in Cameroon, a country located in Africa. Defendants filed a reply to Ondobo’s response, arguing that neither affidavit was admissible, and therefore, did not preclude summary judgment. Ondobo also filed a motion to strike Dr. Jackson’s affidavit, alleging he was unqualified as an expert witness, to which Defendants objected.

¶5 A hearing was held on March 22, 2022.³ After hearing the parties’ arguments, the district court granted Defendants’ motion for summary judgment. The journal entry of judgment was filed on May 17, 2022. Ondobo appeals.

STANDARD OF REVIEW

[3] ¶6 Whether summary judgment was properly entered is a question of law, reviewed de novo. Payne v. Kerns, 2020 OK 31, ¶ 10, 467 P.3d 659. Under de novo review, we have "plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact." Id. Summary judgment will be affirmed only if the Court determines there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Lind v. Barnes Tag Agency, Inc., 2018 OK 35, ¶ 9, 418 P.3d 698. All reasonable inferences are taken in favor of the nonmovant. Horton v. Hamilton, 2015 OK 6, ¶ 8, 345 P.3d 357.

[4, 5] ¶7 Additionally, pursuant to summary judgment procedure, when evidence is presented showing the existence of uncontroverted material facts, the burden shifts to the opposing party to identify those material facts she alleges remain in dispute and provide supportive evidentiary materials justifying trial on the issue. Dept. of Securities ex rel. Faught v. Wilcox, 2011 OK 82, ¶ 18, 267 P.3d 106. In attempting to show the existence of a question that must be tried, the party may not rely on bald contentions that facts exist to defeat the motion. Id. at ¶ 19. Rather, the party opposing a motion for summary judgment must provide "acceptable evidentiary material," which is evidence that appears to be convertible to admissible evidence at trial. Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2013, ch. 2, app.; Estate of Crowell v. Board of County Commissioners, 2010 OK 5, ¶ 8 n.4, 237 P.3d 134.

[6, 7] ¶8 In this case, the propriety of granting summary judgment to Defendants depends on the trial court’s evidentiary rulings in regard to the alleged expert affidavits the parties submitted. When we review a decision on the admissibility of expert testimony, the clear abuse of discretion standard applies. Christian v. Gray, 2003 OK 10, ¶ 42, 65 P.3d 591; see also Shawareb v. SSM Health Care of Oklahoma. Inc., 2020 OK 92, ¶ 20, 480 P.3d 894 (discussing the applicability of the abuse of discretion standard to court’s decision on the admissibility of expert testimony in context of summary judgment proceedings). An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Christian, 2003 OK 10, ¶ 43, 65 P.3d 591.

ANALYSIS

¶9 Ondobo alleges the district court improperly granted summary judgment to Defendants and that the court failed to rule on her motion to strike Dr. Jackson’s affidavit, which she contends should have been stricken. She also argues that her own affidavit and that of Dr. Fokoua were sufficient to preclude summary judgment, entitling her to a trial. We will first discuss whether the Defendants’ motion as filed established there were no material facts in dispute so that judgment was proper as a matter of law before turning to the district court’s consideration of Ondobo’s motion to strike Dr. Jackson’s affidavit. Last, we will address whether the district court abused its discretion in finding Ondobo’s and Dr. Fokoua’s affidavits were inadmissible, and thus, did not preclude summary judgment.

[8, 9] ¶10 Like all negligence claims, a prima facie case of medical negligence has three elements: 1) a duty owed by the defendant to protect the plaintiff from injury; 2) a failure to perform that duty; and 3) injuries to the plaintiff which are proximately caused by the defendant’s failure to exercise the duty of care. Smith v. Hines, 2011 OK 51, ¶ 12, 261 P.3d 1129. Here, the dispute centers on the latter two elements, i.e., whether Defendants breached their duty of care to Ondobo and whether her injuries were proximately caused by Defendants’ failure to exercise the duty of care.

¶11 In seeking summary judgment, Defendants submitted a variety of evidentiary materials, including Ondobo’s medical records and her deposition testimony wherein she admitted the wound dehiscence she experienced after her c-section could have occurred without negligence and was a recognized complication of abdominal surgery. She also admitted that no medical provider had advised her that her gastrointestinal issues and hiatal hernia in 2021 were related to her c-section performed in 2012.

¶12 Defendants also relied largely on Dr. Jackson’s affidavit, which was essential to the granting of Defendants’ motion for summary judgment. According to his affidavit, Dr. Jackson is a physician practicing Obstetrics and Gynecology in Oklahoma City who holds an active board certification with the American Board of Obstetrics and Gynecology. He opined, inter alia, that based on his review of Ondobo’s medical records, the medical care provided by Defendants during her July 6, 2012 admission to the hospital and during the July 11, 2012 readmission was appropriate and within the applicable standards of care. His affidavit also states that after reviewing the report of the surgeon who performed the repair surgery after the c-section, it was his opinion that Dr. Schiermeyer did not perforate the bowel nor did he negligently place the sutures during the c-section. Dr. Jackson also opined that Dr. Schiermeyer took the appropriate preoperative, intraoperative, and postoperative measures to minimize the risk of surgical wound problems. He stated when Ondobo was discharged on post-operative day three, she met all of the standard criteria for discharge, was passing flatus, and showed no indication of wound or bowel problems. He also opined that Ondobo’s bowel became entangled in the...