Aj Harvey v. Jeffrey Johnson, M.D.

2025 Ark. App. 393

• Court: Court of Appeals of Arkansas
• Decided: June 4, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 393 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-14

Opinion Delivered June 4, 2025

AJ HARVEY APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CV-22-1240]

JEFFREY JOHNSON, M.D. HONORABLE JOSH FARMER, APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant AJ Harvey appeals the decision of the Saline County Circuit Court granting

the motion for summary judgment filed by appellee Dr. Jeffrey Johnson and dismissing

Harvey’s complaint with prejudice. We affirm.

This is a medical-malpractice case stemming from alleged complications Harvey

suffered as a result of hip-replacement surgery performed by Dr. Johnson. In his complaint

against Dr. Johnson, Harvey alleges that Dr. Johnson did not counsel him regarding the

specific complications from which he now suffers and that, had he been informed of these

complications, he would not have opted to have the hip surgery. Dr. Johnson answered,

denying the substantive allegations, and the matter proceeded to discovery. Dr. Johnson then

moved for summary judgment, in part, because Harvey failed to establish the standard of

care for the locality where Dr. Johnson practices by means of expert testimony. The circuit court granted Dr. Johnson’s motion, and Harvey now appeals. On appeal, he argues that the

circuit court erred in granting summary judgment.

The order granting summary judgment did not specify on which theory it granted

summary judgment. In his motion for summary judgment, Dr. Johnson alleged that Harvey’s

expert, Dr. Fetto, failed to establish the proper standard of care in the case and was further

unable to articulate what action or omission by Dr. Johnson proximately caused Harvey’s

injuries. We agree that Dr. Fetto did not satisfy the locality rule for medical-malpractice

actions and was therefore not a qualified medical expert.

Summary judgment is appropriate if no genuine issues of material fact exist for trial.

Newton v. Shrum, 2024 Ark. App. 507, at 8–9. Once the moving party has demonstrated an

entitlement to summary judgment, Arkansas law shifts the burden to the nonmoving party,

who must show that a genuine issue of material fact remains by meeting proof with proof to

show a genuine issue as to a material fact. Id.

In medical-malpractice actions, unless the asserted negligence can be comprehended

by a jury as a matter of common knowledge, a plaintiff has the additional burden of proving

three propositions by expert testimony: (1) the applicable standard of care; (2) the medical

provider’s failure to act in accordance with that standard; and (3) that the failure was the

proximate cause of the plaintiff’s injuries. Ark. Code Ann. § 16-114-206(a) (Repl. 2016).

When the defendant demonstrates the plaintiff’s failure to produce the requisite expert

testimony, the defendant has demonstrated that no genuine issues of material fact exist and

2 is therefore entitled to summary judgment as a matter of law. Johnson v. Schafer, 2018 Ark.

App. 630, 565 S.W.3d 144.

Our supreme court has endorsed the locality rule as to the standard of care in

Arkansas. Plymate v. Martinelli, 2013 Ark. 194. In order to meet the locality requirement, an

expert must demonstrate familiarity with the standard of practice in that or a similar locality.

Bailey-Gray v. Martinson, 2013 Ark. App. 80, at 3. Although we consider the geographical

location, size, and character of the community, similarity of localities is based not on

population or area but on the similarity of the local medical facilities, practices, and

advantages. In Bailey-Gray, the court found that Dr. Kasdan’s testimony did not show

sufficient familiarity with the medical facilities or practices in Berryville, Arkansas, to identify

similar localities and make a meaningful comparison; as a result, his testimony was struck.

Turning to the facts at hand, Harvey explains that the circuit court erred in granting

summary judgment because Dr. Fetto is a highly qualified orthopedic surgeon with extensive

experience, has performed hundreds of hip surgeries, is currently the chairman of orthopedic

surgery at Brooklyn Hospital Medical Center; and has previously taught at New York medical

hospitals. None of this, however, establishes Dr. Fetto’s familiarity with the medical

resources or practices in Benton, Arkansas.

Harvey contends that the standard of care in Saline County does not differ from that

in any other part of the United States. He relies on the testimony of Dr. Johnson’s witness,

Dr. C. Lowry Barnes, chair of the Department of Orthopedic Surgery at the University of

Arkansas for Medical Sciences, who confirmed that there is no variation in “the degree of

3 skill and learning ordinarily possessed by orthopedic surgeons” between Benton, Arkansas,

and other localities. Dr. Barnes, referencing his national experience through the American

Association of Hip and Knee Surgery, testified that he is familiar with the standard of care

across much of the United States and affirmed that it is consistent with the standard in

Benton.

We are unpersuaded by Harvey’s argument, however, for two reasons. First, Arkansas

law strictly adheres to the locality rule, and to the extent Harvey suggests a national standard

of care, we reject it. Our courts have consistently held that testimony regarding a national or

general statewide standard of care is insufficient. See Plymate, 2013 Ark. 194, at 5; Gilbow v.

Richards, 2010 Ark. App. 780, at 4. Harvey’s attempt to rely on Dr. Johnson’s expert, Dr.

Barnes, to establish the local standard of care is likewise unavailing. While Dr. Barnes

testified that he is familiar with the standard of care in Benton and that it does not differ

materially from many other places, he did not testify that the standard in Brooklyn, New

York, is the same as in Benton. More importantly, he did not attest that Brooklyn is a similar

locality or offer any comparison between the two communities as Arkansas law requires.

Bailey-Gray, 2013 Ark. App. 80, at 3. Because Harvey has failed to offer expert testimony

establishing the standard of care in Benton or in a similar locality, it was not erroneous for

the circuit court to grant summary judgment.

Because we hold that the circuit court did not err in granting summary judgment due

to a failure to establish the standard of care for the locality where Dr. Johnson practices by

means of expert testimony, we need not address Harvey’s remaining arguments.

4 Affirmed.

VIRDEN and BARRETT, JJ., agree.

Heaton & Harris LLP, by: Colin C. Heaton, for appellant.

Friday, Eldredge & Clark, LLP, by: Martin A. Kasten and Tyler D. Bone, for appellee.