Bowman v. Kalm

2008 UT 9
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Kim Bowman, as guardian for the No. 20060986
minor heirs of Ann Davis Menlove,
deceased,
Plaintiff and Appellant,
v.
F I L E D
Michael A. Kalm, M.D.,
Defendant and Appellee. February 5, 2008
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Third District, Salt Lake
The Honorable L.A. Dever
No. 030912040
Attorneys: Gregory W. Stevens, Salt Lake City, for plaintiff
David H. Epperson, David C. Epperson, Salt Lake City,
for defendant
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WILKINS, Associate Chief Justice:
¶1 Plaintiff Kim Bowman appeals the district court’s grant
of summary judgment against him on his claims, specifically on
the issue of whether, in a medical malpractice case, the element
of proximate cause must invariably be supported by expert
testimony. We hold that it does not, and reverse.
BACKGROUND
¶2 Defendant Dr. Michael A. Kalm is a psychiatrist; the
decedent, Ann Davis Menlove, was Dr. Kalm’s patient. Ms. Menlove
was being treated by Dr. Kalm for anorexia, depression, and
anxiety. During the course of her treatment, Dr. Kalm prescribed
amitriptyline--a sleep agent--for Ms. Menlove. According to
evidence found by police, Ms. Menlove filled her prescription for
thirty sleeping pills on November 30, 2001.
¶3 Ms. Menlove was found dead on December 1, 2001, pinned
under a bedroom dresser against her bed frame. An autopsy report
concluded that the immediate cause of death was “asphyxiation due
[to] mechanical compression of the chest.” Amitriptyline was

1 See Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992)
(“To recover for medical malpractice, the plaintiff must produce
expert testimony that the medical professional’s negligence
(continued...)
No. 20060986 2
found in her system, and thirteen of the thirty sleeping pills
were missing--far more than would have been missing had Ms.
Menlove only taken the prescribed one pill per day.
¶4 Plaintiff Kim Bowman, the decedent’s ex-husband,
brought medical malpractice and wrongful death claims against Dr.
Kalm on behalf of Ms. Menlove’s minor heirs. In resisting Dr.
Kalm’s motion for summary judgment, Mr. Bowman provided expert
testimony showing that Dr. Kalm had breached the standard of care
in treating Ms. Menlove’s anorexia and raising questions about
the amitriptyline prescription. Evidence was also adduced to
show that Ms. Menlove had proclivities to overdose on sleeping
medication and to be clumsy due to medication and her anorexia--
both of which Dr. Kalm was, or should have been, aware.
¶5 Mr. Bowman failed to provide any expert testimony,
however, on the issue of whether Dr. Kalm’s alleged malpractice
was the proximate cause of Ms. Menlove’s death. Noting this, Dr.
Kalm moved for summary judgment, which the district court granted
on both claims. The district court held that “since there’s no
expert testimony establishing a link between the alleged
negligence and [Ms. Menlove’s] alleged sufferings and physical
problems . . . it’s appropriate that the motion for summary
judgment is granted and this matter’s dismissed.” Mr. Bowman
appeals from the district court’s grant of summary judgment.
STANDARD OF REVIEW
¶6 “[F]or summary judgment to be appropriate, there must
be no genuine issue of material fact. The moving party must be
entitled to judgment as a matter of law. When reviewing a grant
of summary judgment, we view the facts in the light most
favorable to the non-moving party.” Utah Golf Ass’n v. City of
N. Salt Lake, 2003 UT 38, ¶ 10, 79 P.3d 919 (citation omitted).
“We grant no deference to the district court's conclusions of law
and review them for correctness.” Grynberg v. Questar Pipeline
Co., 2003 UT 8, ¶ 20, 70 P.3d 1.
ANALYSIS
¶7 There is a general requirement in medical malpractice
cases that the element of proximate cause be supported by expert
testimony.1 This requirement is grounded in the fact that most

1(...continued)
proximately caused the plaintiff injury.”); Dalley v. Utah Valley
Reg’l Med. Ctr., 791 P.2d 193, 195 (Utah 1990) (“To establish the
standard of care required of a physician in a particular field,
breach of that standard, and proximate cause, the plaintiff is
generally required to produce an expert witness.” (emphasis
added)); Nixdorf v. Hicken, 612 P.2d 348, 354 n.17 (Utah 1980)
(“The plaintiff also has the burden of proving the negligence of
the defendant was the proximate cause of the injury. This proof
requires some expert testimony in medical malpractice cases.”).
2 See Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 & n.3
(Utah Ct. App. 1997) (stating that “the plaintiff must provide
expert testimony establishing that the health care provider’s
negligence proximately caused plaintiff's injury,” but also
noting that “there are certain limited situations where expert
testimony . . . is not needed”); Chadwick v. Nielsen, 763 P.2d
(continued...)
3 No. 20060986
medical malpractice cases “depend upon knowledge of the
scientific effect of medicine.” Fredrickson v. Maw, 227 P.2d
772, 773 (Utah 1951). Because 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, testimony from
relevant experts is generally required in order to ensure that
factfinders have adequate knowledge upon which to base their
decisions. See, e.g., Anderson v. Nixon, 139 P.2d 216, 220 (Utah
1943) (“Osteomyelitis being a disease the cause and cure of which
is peculiarly within the knowledge of medical men and not a
matter of common knowledge, it is necessary to have expert
testimony on the effect of the negligence of a doctor on the end
result.”).
¶8 Mr. Bowman argues that this general requirement should
not apply to cases involving psychiatrists, who are involved in
mental health issues that are, he asserts, qualitatively
different from other medical malpractice issues. We cannot find
any support, however, in either our precedent or that of other
jurisdictions, for this proposition. Rather, because such cases
are likely to “depend upon knowledge of the scientific effect of
[psychiatric] medicine,” requiring expert testimony furthers the
goal of a properly informed factfinder. Fredrickson, 227 P.2d at
773. The general requirement of expert testimony to prove
proximate causation is thus as applicable to psychiatrists as it
is to other medical professionals.
¶9 This general requirement does not apply, however, to
all medical malpractice cases.2 There is a limited “common

2(...continued)
817, 821 (Utah Ct. App. 1988) (“[E]xpert medical testimony must
be presented at trial in order to establish the standard of care
and proximate cause--except in unusual circumstances.”).
3 We note that, although it is not relevant to this case,
there is also a separate res ipsa loquitur exception to the
general requirement for expert testimony in medical malpractice
cases. See, e.g., Dalley, 791 P.2d at 195-96 (“Res ipsa loquitur
is an exception to the general rule [requiring expert testimony
in medical malpractice cases].”).
No. 20060986 4
knowledge” exception to the general requirement, which may excuse
a lack of expert testimony in some circumstances. This 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.”3
¶10 The common knowledge exception has usually been applied
in the context of the standard of care issue. For instance, one
commonly cited example occurred when a surgeon left a surgical
tool inside a patient following surgery. In that case, the court
stated:
[I]n certain situations, the medical
procedure is so common or the outcome so
affronts our notions of medical propriety
that expert testimony is not required to
establish what would occur in the ordinary
course of events. In this type of situation
the plaintiff can rely on the common
knowledge and understanding of laymen to
establish this element.
Nixdorf v. Hicken, 612 P.2d 348, 353 (Utah 1980). Likewise,
where the causal connection between the alleged negligence and
injury is “so common,” id., or is non-medical in nature, expert
testimony is not required to prove proximate cause.
¶11 This exception, like the general requirement, applies
to both psychiatrists and other medical professionals; its
application depends upon the negligence, the injury, and the
causal link, and not upon the medical profession involved. For
example, take the case of a psychiatrist who prescribes an anti
depressant for an adolescent patient that is commonly known to
produce, in some cases, increased suicidal thoughts in
adolescents. If the patient subsequently commits suicide, expert

5 No. 20060986
testimony would be necessary to prove that the psychiatrist’s
negligence in prescribing the medication was the proximate cause
of the suicide. This is so because, although the results of the
research on the medication may be commonly known, the causal link
is not itself “a matter of [the] common knowledge of laymen.”
Marsh v. Pemberton, 347 P.2d 1108, 1110 (Utah 1959). Conversely,
if a surgeon mistakenly amputated the wrong leg, no expert
testimony would be necessary to establish that the surgeon’s
breach of the standard of care was the proximate cause of the
patient’s injuries.
¶12 It is not true, therefore, that proximate cause must
always be supported by expert testimony in medical malpractice
cases. While expert testimony is generally required, it is not
necessary where the causal connection between the breach of the
standard of care and the harm suffered is apparent using common
knowledge. Mr. Bowman did not present any expert testimony on
proximate cause. The next step, therefore, is to determine
whether the common knowledge exception applies. If not, the
district court correctly granted summary judgment for Dr. Kalm.
If the common knowledge exception does apply, however, then the
lack of expert testimony is no bar to Mr. Bowman’s suit.
¶13 We conclude that this case falls within the common
knowledge exception. Plaintiff asserts that Dr. Kalm failed to
meet the standard of care by prescribing sleeping pills to Ms.
Menlove when he should have known both that she would abuse them
and that the prescription would make her clumsy. The immediate
cause of death was asphyxiation due to a bedroom dresser falling
over and pinning the decedent to her bed frame. The causal
connection between a decedent made clumsy due to a doctor’s
negligence, and that decedent’s death due to a dresser being
pulled down on top of her, is not one that requires specialized
medical knowledge.
¶14 This is not to say that the evidence adduced so far is
necessarily sufficient to prove causation, or that some type of
expert testimony might not be helpful on the issue (including,
perhaps, testimony on the mechanics of how the dresser could have
been made to tip over). It does mean, however, that a lack of
expert medical testimony is not itself a bar to Mr. Bowman’s
claims. The common knowledge exception applies, and the district
court erred in granting summary judgment based upon Mr. Bowman’s
failure to provide expert testimony.

No. 20060986 6
CONCLUSION
¶15 Expert testimony is generally required in medical
malpractice cases in order to establish the element of proximate
cause. It is not required, however, in cases where the causal
connection between the alleged negligence and the harm caused is
a matter of common knowledge. Because this case falls within the
common knowledge exception, expert testimony is not necessary on
the proximate cause element. We therefore reverse the district
court’s grant of summary judgment on both claims, and remand the
case to the district court for further proceedings consistent
with this opinion.
¶16 Reversed and remanded.
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¶17 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Judge Orme concur in Associate Chief Justice Wilkins’
opinion.
¶18 Having disqualified himself, Justice Nehring does not
participate herein; Court of Appeals Judge Gregory K. Orme sat.