Kay N. Lariviere v. Thomas King, MD & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0156, Kay N. Lariviere v. Thomas King,
MD & a., the court on January 7, 2025, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, Kay N. Lariviere, appeals the grant of summary judgment by the
Superior Court (St. Hilaire, J.) to the defendants, Thomas King, MD, and HCA
Health Services of New Hampshire, Inc., d/b/a Portsmouth Regional Hospital
(Portsmouth Regional),1 on her claims of medical malpractice under RSA 507-
E:2 (2010). On appeal, the plaintiff argues that the trial court erred by: (1)
determining that she failed to produce expert opinion evidence necessary to
satisfy her burden of proof in a medical injury action; and (2) granting
summary judgment because genuine issues of material fact exist. We conclude
that the plaintiff produced sufficient expert opinion evidence as required by
RSA 507-E:2. Accordingly, we reverse and remand.

The following facts are drawn from the trial court’s orders or are
undisputed. Dr. King operated on the plaintiff’s knee at Portsmouth Regional.
While recovering at Portsmouth Regional, the plaintiff’s leg was placed in a
continuous passive movement (CPM) machine to “flex and extend the knee joint
through passive movement.” She alleges that the CPM machine fell off her
hospital bed with her leg in it, causing a fracture to her leg.

The plaintiff thereafter initiated this action against Dr. King and
Portsmouth Regional for medical negligence. She retained an orthopedic
surgeon as her sole expert witness, who examined her, reviewed her medical
records, and produced a report detailing his opinions. Dr. King and
Portsmouth Regional both moved for summary judgment, arguing that the
plaintiff failed to produce expert testimony sufficient to sustain her claims. The
plaintiff objected and submitted a supplemental affidavit from her expert. In
that affidavit, her expert opined that “no reasonable medical professional would
allow a CPM machine to be positioned in such a way that it could fall from a
bed and hurt the patient.” The trial court granted the defendants’ motions for
summary judgment, concluding that the plaintiff failed to produce sufficient

1 Portsmouth Regional failed to brief the issues pertaining to its cross-appeal in its opposing brief,

and we struck its supplemental brief, which was filed without leave. Accordingly, we consider
only the arguments that Portsmouth Regional made in response to the plaintiff’s appeal.
evidence “concerning any breach of the applicable standard of care” as required
by RSA 507-E:2. This appeal followed.

On appeal, the plaintiff argues that the trial court erred by granting the
defendants’ motions for summary judgment. When reviewing the trial court’s
grant of summary judgment, we consider the affidavits and other evidence, and
all inferences properly drawn from them, in the light most favorable to the non-
moving party. Shaff v. Leyland, 154 N.H. 495, 497 (2006). If there is no
genuine issue of material fact, and if the moving party is entitled to judgment
as a matter of law, the trial court’s grant of summary judgment is proper. See
id. We review the trial court’s application of the law to the facts de novo. Id.

RSA 507-E:2, I, requires a plaintiff bringing any action alleging a medical
injury to establish, through competent expert witness testimony: (1) “[t]he
standard of reasonable professional practice in the medical care provider’s
profession or specialty . . . at the time the medical care in question was
rendered”; (2) “[t]hat the medical care provider failed to act in accordance with
such standard”; and (3) “[t]hat as a proximate result thereof, the injured person
suffered injuries which would not otherwise have occurred.” RSA 507-E:2, I. A
plaintiff cannot meet this statutory burden if he or she fails to proffer a
qualified expert witness who opines on each element of the statute. See Smith
v. HCA Health Servs. of N.H., 159 N.H. 158, 160-61 (2009).

First, we consider whether the plaintiff’s expert established the standard
of care. See RSA 507-E:2, I(a). Such an opinion would identify the “proper
protocols” for positioning a CPM machine on a hospital bed. See Smith, 159
N.H. at 162. The plaintiff maintains that the expert’s statement that “no
reasonable medical professional would allow a CPM machine to be positioned
in such a way that it could fall from a bed and hurt the patient” provided “clear
evidence” of the applicable standard of care.2 The court understood the
relevant standard of care to be that “CPM machines are placed in hospital beds
in such a way that they very rarely fall off.” We agree that the plaintiff’s expert
opinion sufficiently established the applicable standard of care.

Next, we consider whether the plaintiff established through expert
testimony that the defendants breached the standard of care. The plaintiff’s
expert must opine that the defendants “failed to act” according to the “standard
of reasonable professional practice.” See RSA 507-E:2, I(a)-(b). Here, the
plaintiff’s expert opined that “no reasonable medical professional would allow a
CPM machine to be positioned in such a way that it could fall from a bed and
hurt the patient.” He further opined that “to a high degree of probability or

2 The defendants assert that reliance upon the plaintiff’s expert affidavit is improper because it

was specifically designed to defeat summary judgment. However, because our review of a trial
court’s grant of summary judgment includes a consideration of the affidavits and other evidence
presented to the trial court, see Shaff v. Leyland, 154 N.H. 495, 497 (2006), we are not persuaded.

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certainty” the CPM machine fell because “someone at the hospital, whether
under the direction of Dr. King or Portsmouth Regional Hospital, failed to give
the proper and expected care to ensuring the CPM machine was properly
positioned, allowing the machine to fall.” Although we do not presume
negligence, as a matter of law, from the fact that the CPM machine fell, the
plaintiff’s expert has opined that, as a matter of fact, the standard of care
requires this presumption under these circumstances. See St. Pierre v. Elgert, 145 N.H. 620, 622-25 (2000) (presuming negligence as a factual matter
because an expert testified that the standard of care requires a delivering
doctor to ensure that the placental tissue is completely expelled and failure to
detect missing tissue is “most of the time” due to negligence (quotation
omitted)). Given the plaintiff’s expert opinion that “no reasonable medical
professional” would position the CPM machine in a way which it could fall, and
yet it did fall, we conclude that the plaintiff’s expert sufficiently opined that the
defendants breached the standard of care.

Lastly, we turn to the issue of causation. The plaintiff’s expert must
opine that “as a proximate result” of the defendants’ breach, “the injured
person suffered injuries which would not otherwise have occurred.” RSA 507-
E:2, I(c). Here, the plaintiff’s expert opined “to a high degree of probability”
that the plaintiff’s “injury was caused by the CPM machine falling off the bed.”
He also opined that “because the CPM machine did fall and injure [the plaintiff]
there was accordingly failure to provide the appropriate level of care.”
Furthermore, he opined that “[h]ad the CPM machine not fallen, [the plaintiff]
would not have been injured and would not have required the surgeries [that
followed] to fix the fracture.” We conclude that this opinion sufficiently alleges
causation; the improper positioning of the CPM machine was the proximate
and but-for cause of the plaintiff’s injury. See id.; cf. St. Pierre, 145 N.H. at
624-25. Accordingly, the plaintiff produced sufficient expert opinion evidence
on each element of her action. See RSA 507-E:2, I. We reverse the trial court’s
grant of summary judgment to the defendants and remand for further
proceedings consistent with this order.

Reversed and remanded.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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