Courteau v. Dodd

773 S.W.2d 436, 299 Ark. 380, 1989 Ark. LEXIS 337

• Court: Supreme Court of Arkansas
• Decided: July 3, 1989
• Docket: 89-105
• Status: Published

Opinions

David Newbern, Justice.

This is a medical malpractice case decided by summary judgment in favor of defendant, Doyne Dodd, M.D., the appellee. The action was brought by the appellants, Dollie and Duane Courteau, on behalf of their son and ward, Timothy Courteau. Timothy, at age twenty, suffered a broken neck in a diving accident. While he was a patient at North Little Rock Memorial Hospital, a breathing tube which had been placed through his nostril into his trachea became dislodged. Breathing was severely hampered, blood gases elevated, and he suffered a heart attack and massive brain damage. Suit was brought on his behalf by the appellants, who are Timothy’s parents and guardians, against three physicians and an insurance company. The allegation against Dr. Dodd, a radiologist, was that he failed to take immediate action to notify others involved in treating Timothy that an X-ray showed the tube was not present where it should have been. The trial court entered a final judgment as to Dr. Dodd, finding no reason to delay. Ark. R. Civ. P. 54(b). The Courteaus argue the remaining fact issue is whether the doctor used the proper means of communication. They assert it is a question a juror could answer absent expert testimony. We agree, however, with the court’s conclusion that, absent the prospect of expect medical testimony showing Dr. Dodd to have been negligent, there was no remaining fact issue, and summary judgment was appropriate.

Facts revealed in the pleadings and affidavits supporting and responding to the summary judgment motion are not disputed. Timothy Courteau was admitted to the hospital on July 3, 1986. Following surgery necessitated by his spinal injury he was placed on a.respirator, and the tube was put in place to keep an air passageway open to his lung. The nursing notes beginning on the night of July 5, 1986, showed the patient was agitated and was fighting the ventilator and shaking his head from side to side.

A nurse checked between 6:00 and 7:30 a.m. on the morning of July 6 and found there was a whistling sound around the tube and the patient was unresponsive. At about that same time, a respiratory therapist reported the blood gases were at readings of around 90, and they should have been around 30. The therapist caused a call to be made to Dr. Marvin, the treating physician, who then ordered that the tube be repositioned. Dr. Duke tried unsuccessfully to get the tube back into the lung, using both the nostril and the mouth, but instead the tube went into the esophagus and stomach. Timothy’s inability to breathe resulted in the brain damage and a heart attack which occurred at 8:59 a.m.

Requisitions had been made for daily chest X-rays. The requisition dated July 3 for a July 4 X-ray made no reference to the tube. Dr. McAdoo, who read the July 4 film, stated in his notes “[t]here is an endotracheal tube in place.” The requisition dated July 4 for the July 5 X-ray again made no mention of the tube, and Dr. McAdoo’s notes did not mention the tube. The requisition dated July 5 for the July 6 X-ray had two notations: “CHEST-PORTABLE RECUMBENT” and “INTUBATION.”

Dr. Dodd’s affidavit accompanying the motion for summary judgment stated that he read the film between 7:30 and 8:30 the morning of July 6. The Courteaus point out that in his earlier deposition Dr. Dodd said he read the film between 7:15 and 8:30. The X-ray had been taken at 6:35 that morning. He noted the absence of the tube, stating, “the endotracheal tube is not visualized and may have been removed.” His dictated notes were transcribed and printed at 10:37 that morning. He took no other action to notify anyone of the finding that the tube was not in place. In his affidavit Dr. Dodd described the X-ray requisition as “routine” with nothing to suggest urgency with respect to his report. He also noted there was nothing unusual about the disappearance of a tube or other appliance which may be removed as a patient’s condition improves.

Also accompanying the motion for summary judgment were affidavits of two board certified radiologists, each of whom stated he was familiar with the standard of care for radiologists practicing in the Little Rock and North Little Rock community in 1986. Each stated that he had reviewed the undisputed facts and concluded that Dr. Dodd promptly read the X-ray in question and interpreted it in a manner consistent with the standard of care for a radiologist in the community in 1986. Each stated:

It is my professional medical opinion that Dr. Dodd did not negligently fail to bring his endotracheal tube finding regarding Tim Courteau’s July 6, 1986, morning chest x-ray to the attention of the treating physician, the intensive care unit, the emergency room, or hospital administration, as alleged in . . . plaintiffs’ . . . Complaint. Dr. Dodd dictated a report which indicated that “the endotracheal tube is not visualized and may have been removed.” No request for a STAT reading was communicated to Dr. Dodd. It was within the standard of care for a radiologist who read a routine chest x-ray on a patient who had been intubated in the intensive care unit for several days to dictate his findings that no tube appeared in the x-ray. This is true even though the requisition indicated that the patient was intubated, because the computer-generated requisitions often indicated the presence of tubes or appliances which had been removed as the patient’s condition improved.

In response to the motion for summary judgment, the Courteaus presented, among other things, excerpts from a number of depositions concerning the direct care which was being given in or about the patient’s hospital room. The only items, other than the X-ray films, directly related to Dr. Dodd were an excerpt from a deposition given by an internist, Dr. Frank Logan Brown, Jr., and an affidavit from a respiratory therapist, John Govar.

Dr. Brown expressed no opinion about the standard of care and whether Dr. Dodd’s actions were within the standard. He stated he did not understand why Dr. Dodd had not called the intensive care unit where the patient was hospitalized when he noticed the tube was not present, given the “intubation” notation on the requisition.

Mr. Govar’s affidavit stated that he was a certified respiratory therapist with twelve years experience, currently serving as Director of Respiratory Care at Hillside Hospital in Pulaski, Tennessee. The affidavit contained nothing about Mr. Govar’s education or training for his position. There was nothing showing the size or nature of the community in which he was working or any community in which he had worked. There was nothing to show any knowledge of radiology or X-ray reading and reporting procedures. He stated that in his experience “a chest x-ray requisition reflecting the word ‘intubation’ means that a chest x-ray is being requested for the purpose of determining tube placement.” He stated his opinion that the absence of the tube shown in the July 6 film should have been reported immediately.

After finding that a genuine issue of material fact remained as to the question of causation, the trial court’s order stated:

However, it is the Court’s opinion that in this case the Plaintiffs would have to have expert medical testimony and opinion that Dr. Dodd acted below the standard of care for radiologists in 1986 in North Little Rock, Arkansas, or a similar community, and that Plaintiffs have not listed a medical physician who would so testify, and, therefore, there is not a genuine issue of material fact concerning Dr. Dodd’s alleged negligence.

In Prather v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), we reversed a summary judgment because we found ample medical expert testimony to raise a question of fact as to a physician’s negligence. We stated the standard rule for review of a summary judgment. The burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. We view the evidence most favorably to the party against whom relief is sought. Citing Clemons v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985), we said summary judgment is not proper where the evidence is not in dispute but has aspects from which inconsistent hypotheses might reasonably be drawn.

The malpractice statute, Ark. Code Ann. § 16-114-206(A) (1987), provides:

In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;

(2) That the medical care provider failed to act in accordance with that standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

The question here is whether, once Dr. Dodd presented medical expert opinion testimony to the effect that he was not negligent, the Courteaus presented sufficient evidence to pose a question of fact on that issue. Further refined, the question becomes whether the affidavit of Mr. Govar expressing his opinion that Dr. Dodd was negligent was sufficient to rebut Dr. Dodd’s evidence and thus raise a fact question.

To the extent the trial court’s judgment could be interpreted as stating that the Courteaus were required to find a radiologist to testify against Dr. Dodd and to rebut the affidavits of his fellow radiologists, we disagree. Arkansas Code Ann. § 16-114-207(1) (1987) provides that A.R.E. 702 governs the qualifications of expert witnesses in an action for medical injury. Rule 702 is not so strict. We have held that if there is a reasonable basis for saying a witness knows more of the subject at hand than a person of ordinary knowledge, his evidence is admissible. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984). By way of obiter dictum in Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985), we stated that:

the statute does not expressly state that every plaintiff in a malpractice case must find a doctor willing to testify against a fellow doctor. Such a requirement might subject the validity of the statute to serious doubt, as being special or class legislation. ^

Reserving the question whether educational background is a necessary component of the qualifications of a person presented as a medical expert, Mr. Govar’s affidavit makes it pretty clear that he is a person who may have more knowledge than the ordinary person would have about respiratory therapy. It states:

[t]he respiratory therapy issues in this case relating to the proper and standard care to be provided to an intubated patient in the Intensive Care Unit are common to any hospital operating such a unit. The issues involve the basic components of airway management of an intubated patient in the Intensive Care Unit.

It then states that “intubation” noted on a requisition means a chest X-ray is being requested to determine tube placement, and that the findings from the 6:35 a.m. film were of major significance to the patient’s care and should have been immediately reported. Had the issue in this case been one of the standard of care to be exercised in administering respiratory therapy, and had Mr. Govar been able to qualify as an expert in that field, his testimony might have been sufficient to present a fact question. The subject at hand here, however, was the standard of care a radiologist must follow in interpreting an X-ray requisition.

The question we face is whether Mr. Govar was qualified to express an opinion about how Dr. Dodd should have reacted to the July 6 X-ray, given the instructions in the July 5 requisition. The affidavit offers nothing to sustain the Courteaus’ burden of proof which, in the words of § 16-114-206(A)(1), includes “[t]he degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider . . . engaged in the same type of . . . specialty in the locality . . . or . . . similar locality.” Mr. Govar’s affidavit contained nothing about his having knowledge as to how a radiologist in a community like North Little Rock should have interpreted the July 5 requisition. His statement that the “respiratory care issues” are common to any hospital operating an intensive care unit states no basis for his evaluation of the conduct of a radiologist.

The Corteaus cite Phillips v. Good Samaritan Hosp., 65 Ohio App.2d 112, 416 N.E.2d 646 (1979). There a radiologist determined that the patient had a broken arm, although the physician who had examined her had concluded there was no break. The radiologist dictated his findings into a machine, but they were not communicated to the treating physicians. The Courteaus urge upon us the language from that case to the effect that the “mode” of communication is an area in which an ordinary juror could ascertain whether the radiologist breached a duty to the patient. We find, however, that the court carefully and clearly distinguished the “urgency” of the communication which the court concluded depended on medical facts as to which expert testimony would be required.

The Courteaus also cite Jenoff v. Gleason, 215 N.J. Super. 349, 521 A.2d 1323 (App. Div. 1987), where the mode of communication by a radiologist resulted in delay in informing a patient and her physician about a lung tumor until it had grown and spread. The information was not placed in the hands of Ms. Jenoffs doctors but was attached to her hospital records after she had been discharged. It was only discovered by a nurse who was reviewing her record on behalf of a workers’ compensation carrier some months later. The trial court dismissed the claim against the radiologist at the conclusion of the plaintiffs evidence. A physician testified that an unusual finding by a radiologist would be communicated to the treating physician and where, as in the case of Ms. Jenoff the X-ray was being taken to assess her general suitability for surgery, to the surgeon. The appellate court reversed on the ground that the evidence was sufficient to take the case to the jury. By way of obiter dictum, the court noted that “modes of communication are not so peculiarly within the expertise and knowledge of the medical profession as to necessitate expert testimony.”

The Jenoff case is easily distinguishable from the one before us now. We agree that the discovery of a lung tumor by a radiologist is clearly an item to be communicated to a treating physician and patient, and a layperson could determine that failure to communicate in those circumstances could be characterized as negligence. In this case, however, there was no failure to communicate. Unlike the Jenoff case, the jurors here would have had the task of interpreting the term “intubation” and determining the action, if any, it required under the community standard made applicable by the statute.

In Prater v. St. Paul Ins. Co., supra, we wrote:

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not just a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Sexton v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 631 S.W.2d 270 (1982); David v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972).

Again, the question presented has to do with the urgency, if any, suggested by the X-ray requisition and the resulting film, and we cannot say the trial court was wrong in requiring expert testimony on that issue and in holding that Mr. Govar’s affidavit was insufficient and the “question” raised in the deposition testimony of a physician presented no genuine issue of material fact.

Affirmed.

Holt, C.J., Purtle and Glaze, JJ., dissenting.