Watts v. St. Edward Mercy Medical Center

Olly Neal, Judge.

Appellant Keziah G. Watts appeals from the trial court’s decision granting appellee summary judgment in her medical malpractice action. In her complaint, appellant alleged that appellee’s failure to diagnose her broken hip for three days after she was admitted to the hospital caused a worsening of her injury, additional pain and suffering, and additional medical expenses. After a hearing on appellee’s motion for summary judgment, the trial court concluded that appellant “failed to present any evidence by a qualified medical expert that the delay, if any, was the proximate cause of damage to the plaintiff. Consequently the defendant has failed to meet proof with proof so as to create a genuine issue of material fact.” From that ruling comes this appeal. We reverse.

For the most part, the facts of this case are accepted by both parties. Appellant alleges that on Saturday, October 19, 1996, she fell in her home and that after the fall she was unable to walk or stand. Appellant was transported to the appellee’s emergency room where she was seen by Dr. Steve Nelson. At the insistence of her son-in-law, appellant was admitted from the emergency room to the hospital. Appellant never underwent a physical examination to determine whether she had a broken hip.

Appellant was to be released on Tuesday, October 22, 1996. As her daughter was helping her to put on her clothes, appellant “yelped” in pain. Appellant told her daughter that her leg was hurting and had been hurting since she was admitted to the hospital. An x-ray was subsequently taken that showed appellant had suffered a broken hip. Appellant was given her first dose of pain medication on October 22, but had to wait approximately three days for surgery because she was taking Coumadin, a blood thinner.

In her complaint appellant alleged that appellee’s failure to timely diagnose her broken hip caused damages including medical expenses, injuries, pain and suffering; scars and disfigurement; and care-taking expenses. Appellee subsequently moved for a summary judgment, contending that appellant had failed to provide any expert testimony to prove that any breach of the applicable standards of care by any of appellee’s employees was a proximate cause of injuries suffered by appellant. In support of its motion, appellee submitted the deposition testimony of Dr. Gary Edwards. Dr. Edwards testified that assuming that the fracture occurred prior to her admittance to the hospital, the delay from the evening of the 19th until the 22nd when the x-ray was taken, did not in any way cause her fracture to be worse than it would have been if it had been discovered in the emergency room, and that he was not aware of any damages that she suffered or sustained as a result of the delay. Dr. Edwards also testified appellant did not complain to him of any pain prior to the taking of the x-ray.

Appellee also presented the affidavit testimony of Dr. Nils K. Axelsen, an orthopedic surgeon, who stated that there are occasions where a broken hip does not produce pain. Dr. Axelsen stated that it is not unusual for a patient who has suffered the type of injury as appellant not to experience any initial pain. Notably, the court supported its ruling with Dr. Axelsen’s statement that a review of appellant’s chart showed no indication that appellant complained of hip or groin pain during her first few days of hospitalization.

Appellant offered her daughter’s testimony that appellant told her that her leg had been hurting since the 19th. Further, in deposition testimony, Dr. Steve Nelson testified “...more likely than not that it would be painful... I would think that generally hip fractures are painful.”

Summary judgment is appropriate when there is no genuine question of material fact to be litigated. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 660 (1997). Once the moving party established a prima facie entidement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet “proof with proof’ and demonstrate a genuine issue of material fact. Sanders v. Bailey Community Human Services Public Facilities Board, 330 Ark. 675, 956 S.W.2d 187 (1997). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). Any doubts and inferences must be resolved against the moving party. Kelly v. National Union Fire Ins. Co., 321 Ark. 329, 937 S.W.2d 660 (1997).

The Arkansas Medical Malpractice Act is codified at Ark. Code Ann. §§ 16-114-201 through 209 (1987). In Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991), our supreme court stated:

Section 16-114-206(a) specifies that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries.

The statute implements the traditional tort standard of requiring proof that “but for” the tortfeasor’s negligence, the plaintiff s injury or death would not have occurred.

We have held that the proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). It is simply not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages. Aetna Casualty & Sur. Co. v. Pilcher, 244 Ark. 11, 424 S.W.2d 181 (1968). The opinion must be stated within a reasonable degree of medical certainty or probability. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992).

Our courts have also held, however, that expert testimony is not necessary per se in every medical malpractice case. Our law is well-settled that expert testimony is required only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not required in every medical-malpractice case per se, the court in Hasse v. Starnes, M.D., 323 Ark. 263, 915 S.W.2d 675 (1996) repeated a statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972):

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

Id. at 926, 481 S.W.2d 712-13.

In this case, expert testimony is not needed to support appellant’s argument that she suffered pain from October 19 to October 22. Here all the experts presented by appellee testified that appellant’s injury was not worsened by the delay. Drs. Edwards and Axelsen testified that appellant’s chart did not indicate that she complained of any pain prior to October 22, but that claim is refuted by the hospital record. The abstract reveals that on October 21, appellant told someone that her left leg and foot were still sore, indicating that she stated that they were sore previously. Moreover, Dr. Axelsen’s statement that injuries of the type suffered by appellant do not always cause initial pain does not support the conclusion that appellant did not suffer any pain. Dr. Nelson testified: “...more likely than not that it would be painful... I would think that usually hip fractures are painful.” In fact there was no reason for appellant to bring an expert to say that her type of injury sometimes causes initial pain because the opinions of Dr. Nelson and Dr. Axelsen state just that.

The evidence in support of this judgment decision comes down to the doctors saying no damage was caused by the three-day wait; appellant stating that she was in pain; her medical records providing some support for this claim; and the opinions of Dr. Nelson and Dr. Axelsen that these types of injuries generally cause pain. We hold a fact question was presented by this evidence, and reverse and remand.

Reversed and remanded.

Jennings, Robbins and Baker, JJ., agree. Pittman, J., concurs. Bird, J., dissents.