Hamilton v. Allen

267 S.W.3d 627, 100 Ark. App. 240, 2007 Ark. App. LEXIS 761

• Court: Court of Appeals of Arkansas
• Decided: November 7, 2007
• Docket: CA 06-1051
• Status: Published

Opinions

Sam Bird, Judge.

In this medical-malpractice case Susan R. Hamilton appeals the circuit court’s order granting summary judgment in favor of appellees, Dr. D.B. Allen and Dr. Ken Taylor. Hamilton raises four points on appeal: (1) that appellees’ motion for summary judgment did not demonstrate a prima facie case and was improperly granted; (2) that the trial court erred in striking her response to appellees’ motion for summary judgment on the basis of untimeliness; (3) that the trial court erred in failing to allow her to supplement the affidavit of her expert witness; and (4) that the trial court erred in dismissing her oral motion for a continuance. We find no error by the trial court in granting summary judgment in favor of appellees, and we affirm.

Hamilton underwent gynecological surgery by Dr. Allen on the afternoon of February 10, 2000. Several hours after the surgery Hamilton’s blood pressure decreased and her pulse rate increased, suspected to be the result of post-operative, intra-abdominal bleeding. Consequently, exploratory surgery was performed that same evening by Dr. Allen and Dr. Taylor, and two oozing vessels were identified and ligated. A third surgery was required two days later for additional intra-abdominal bleeding: a third bleeding vessel was found and ligated in this surgery, which was performed by Dr. Allen and Dr. Michael Pollock. Hamilton was discharged from the hospital eight days after what had been originally scheduled as a “day surgery.” Her allegations of medical negligence regarded Dr. Allen and Dr. Taylor’s treatment of her initial post-operative bleeding.

Procedural History

Before addressing the merits of appellant’s argument, we briefly summarize the development of this case before the circuit court. Appellant initially filed suit in February 2002, just before the expiration of the statute of limitations. Appellees took the deposition of Dr. Joseph Hume, who had been identified by appellant as the only medical expert she intended to call as a witness at trial. Appellees filed a motion for summary judgment on January 26, 2005, alleging that Hamilton could not meet her burden of proof through the testimony of her expert witness. At a hearing on February 4, 2005, the trial court treated appellees’ motion as a motion in limine because it had been filed after a court-imposed deadline for the filing of dispositive motions. The court denied the motion in limine, ruling that Hamilton could call Dr. Hume to testify at trial, that the court would deal at that time with any objections by appellees to Dr. Hume’s opinions, and that the court was reserving the right to grant a directed verdict, depending on the evidence presented at trial. The court stated, “So to the extent that the motion for summary judgment can be considered a motion to exclude the testimony of Dr. Hume or some motion in limine to that effect as excluding that portion of the testimony, that motion will be denied.” On the same day, Hamilton voluntarily non-suited her case as to all defendants.

On July 13, 2005 Hamilton re-filed her complaint against Drs. Allen and Taylor, making essentially the same allegations of negligence on their part as were made in the first suit. After answering and denying all allegations of negligence, appellees filed a motion for summary judgment on October 6, 2005, based upon the same grounds as their motion for summary judgment in the first lawsuit, i.e., that because Dr. Hume’s testimony was speculative, it was insufficient as a matter of law to establish the existence of an essential element of her claim of negligence on the part of appellees.

On November 2, 2005 Hamilton filed a paper entitled “Plaintiffs Designation of Expert Witness,” which identified Dr. Harold J. Miller as her only expert witness in the case. Attached to the document was Dr. Miller’s affidavit: it set forth the standard of care applicable to the surgical procedures performed on Hamilton by appellees, it stated that appellees had deviated from the standard of care, and it described the nature of such deviation. On December 1, 2005 Hamilton filed her response to the motion for summary judgment. She argued, among other things, that appel-lees’ motion was ill-founded to the extent that it relied upon the deposition of Dr. Hume because his deposition was taken in connection with the earlier case that Hamilton had voluntarily non-suited and, therefore, it was not evidence that could be used as a basis for summary judgment in Hamilton’s re-filed lawsuit.

Appellees moved to strike Hamilton’s response, arguing that its filing was not timely and that, even if timely, Dr. Miller’s affidavit did not establish that he was familiar with the applicable standard of care and, like Dr. Hume’s testimony, his opinions were based solely upon speculation. Thereafter, Hamilton moved for leave to supplement Dr. Miller’s affidavit and appellees responded in opposition to it.

Following a hearing on May 12, 2006, during which Hamilton orally moved that the hearing be continued until after discovery was completed, the trial court announced its findings: that the doctors’ motion to strike Hamilton’s response to the motion for summary judgment should be granted because the response was not timely filed, that Hamilton’s motion to file a supplemental affidavit of Dr. Miller should be denied because the filing of Dr. Miller’s initial affidavit was not timely, that Hamilton’s oral motion for a continuance should be denied, and that the appellee/doctors’ motion for summary judgment should be granted. The court also reiterated that, at the February 2005 hearing on appellees’ motion in limine in the first case, it had reserved the right to grant a motion for directed verdict by appellees and that “the reason they didn’t get their motion for summary judgment is they waited too close to trial to get it heard.” The court’s decision was memorialized in an order entered on June 1, 2006. Hamilton now appeals, arguing the four points set forth in the first paragraph above.

Grant of Summary Judgment

Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (citing Ark. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). The appellate court determines if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. Id. The evidence is reviewed in a light most favorable to the party against whom the motion was filed, with all doubts and inferences resolved against the moving party. Id.¹

In a medical-malpractice action, the plaintiff must prove: (1) the applicable standard of care; (2) that the medical provider failed to act in accordance with that standard; and (3) that such failure was a proximate cause of the plaintiffs injuries. Webb v. Bouton, 350 Ark. 254, 264, 85 S.W.3d 885, 891 (2002). A medical-malpractice complaint is subject to a motion for summary judgment when the plaintiff fails to present expert evidence of those three elements and the defending party demonstrates that the plaintiff lacks proof on one or more of these essential elements. Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (2006); Parkerson v. Arthur, 83 Ark. App. 240, 125 S.W.3d 825 (2003).² Here, Hamilton had the statutory burden of proving these three essential elements by expert testimony. See Ark. Code Ann. § 16-114-206(a) (Repl. 2006); Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005).³

In order to demonstrate a genuine issue of material fact, the plaintiffs medical expert must state “within a reasonable degree of medical certainty” that the defendant breached the standard of care and that the alleged breach was a proximate cause of the injury. Mitchell v. Lincoln, supra; Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 229 S.W.3d 7 (2006). A party against whom a claim is asserted “may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Ark. R. Civ. P. 56(c). Burdens of proof for the parties to summary judgment are as follows:

Rule 56(c) [of the Federal Rules of Civil Procedure] mandates the entry of summary judgment. . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. . . .

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. But ... we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. On the contrary,Rule 56(c), which refers to “the affidavits, if any” . . . suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment “with or without supporting affidavits!)]”

Celotex, 477 U.S. at 322-23. Our Rule 56 tracks the federal rule and is to be construed in accordance w-ith federal decisions. Reporter’s; Notes to Ark. R. Civ. P. 56; Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).

In their motion for summary judgment, appellees alleged that Hamilton could not meet her burden of proving the elements of negligence and causation because her only expert witness, Dr. Joseph Hume, admitted that speculation was the basis of his opinions regarding the alleged negligence. Appellees attached excerpts from his deposition to their motion. In the deposition Dr. Hume stated that, had there not been a third bleeder at the time of the second surgery, he would have had no criticisms of either appellee. Dr. Hume said that he had no specific criticisms of appellee Dr. Taylor and did not feel “that he had deviated below any standard of care” with which Dr. Hume was familiar. Dr. Hume’s criticism of appellee Dr. Allen was that he did not adequately explore the bleeding in the second surgery and had deviated below the standard of care; this was based upon Dr. Hume’s opinion that there was a third bleeding site that was not identified. Dr. Hume admitted, however, that he did not know whether there had been a third bleeder at the time of the second surgery and that it would require speculation on his part to say so.

The circuit court based its order of summary judgment upon the following finding: “Defendants have demonstrated that there exists no genuine issue of material fact and that they are entitled to judgment as a matter of law. Plaintiff has failed to meet proof with proof.” The trial court did not err in this ruling. Appellees demonstrated their prima facie entitlement to summary judgment by attaching to their motion portions of Dr. Hume’s deposition demonstrating that his opinion of negligence on the part of appellees was speculative, thus rendering his opinion insufficient to satisfy Hamilton’s burden of proof.⁴

In affirming the order of summary judgment, we also reject Hamilton’s argument that the trial court’s granting of summary judgment in her second lawsuit was in error because, prior to the non-suit of her first lawsuit, the court had denied appellees’ motion in limine and had ruled that Dr. Hume could testify at trial. Hamilton refers us to no authority for her argument, and we are aware of none. As appellees note, the trial court never addressed the merits of the summary-judgment motion in the first lawsuit because the motion was not timely filed; rather, the court treated it as a motion in limine and stated that the court would rule on the merits of appellees’ argument after Dr. Hume testified at trial. However, Hamilton non-suited her first lawsuit and it never went to trial. We are unaware of any authority that would preclude a party from filing a motion for summary judgment in a second lawsuit and relying upon the same evidence as was relied upon in a previously non-suited lawsuit, especially where, as here, the allegations in the second lawsuit are the same as those in the first lawsuit.

We take this opportunity to review and clarify the parties’ burdens of proof regarding summary judgment when the movant is the defendant in a medical-malpractice action. In Skaggs v. Johnson, supra, and in Robson v. Tinnin, supra, the movants met their burden of proving a prima facie case for summary judgment by showing that the plaintiffs had no expert to testify as to the breach of the applicable standard of care. In Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), where the appellant’s expert on the issue of informed consent could not offer an opinion as to the proper standard of care, the appellant did not meet her burden of proof and no material issue of fact existed. In Dodd v. Sparks Regional Medical Center, supra, summary judgment was appropriate where the affidavit, which offered only a statement of what care should have been provided and an opinion that the health-care providers had failed to exercise due care, did not establish the applicable standard of care. When the defendant demonstrates the plaintiffs failure to produce the requisite expert testimony, the defendant has demonstrated that no genuine issues of material fact exist and is therefore entitled to summary judgment as a matter of law. Id.; Skaggs v. Johnson, supra; Robson v. Tinnin, supra; Brumley v. Naples, supra; Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). The moving party is not required to support its motion with affidavits or other materials further negating the plaintiffs claim. See Ark. R. Civ. P. 56 and Celotex, supra.

In McAdams v. Curnayn, 96 Ark. App. 118, 239 S.W.3d 17 (2006), a medical-malpractice action against a veterinary clinic and its employees, this court correctly affirmed an order of summary judgment but incorrectly addressed the summary-judgment movants’ burden of proof. We summarily, and incorrectly, disposed of their argument that appellant McAdams, the nonmoving party and the plaintiff below, had failed through his expert witness to demonstrate the standard of care and a breach of the standard. Reviewing the proof presented by appellees (the defendant/movants) in their motion for summary judgment, we stated in dicta:

Appellees did not present affirmative proof of the applicable standard of care required of a veterinarian in the February 14, 2000 visit or affirmative proof that the veterinarian complied with the standard of care. . . . Without proof supporting the motion for summary judgment on the applicable standard or breach thereof, appellant was under no duty to rebut those two aspects of medical negligence.

96 Ark. App. at 123, 239 S.W.3d at 20 (citations omitted). By the opinion we issue today, we acknowledge that insofar as McAdams appears to say that a defendant/summary-judgment movant in a medical malpractice case is required to present affirmative proof of the standard of care and that the defendant’s conduct conformed to that standard, McAdams is an incorrect statement of the law where the basis of the summary-judgment motion is the plaintiff s case.

Timeliness of Response to the Motion for Summary Judgment

Hamilton contends in her second point on appeal that her response to appellees’ motion for summary judgment was timely and, thus, that appellees’ motion to strike on the basis of untimeliness should have been denied. In their motion to strike Hamilton’s response to the motion for summary judgment, appellees asserted that it was untimely and, further, that Dr. Miller’s affidavit failed to establish an issue of material fact. The circuit court found that Hamilton had not responded to the summary-judgment motion within the time prescribed by the Arkansas Rules of Civil Procedure; the court further stated that, had it considered Dr. Miller’s affidavit, the court would have found the affidavit insufficient to meet proof with proof.

The adverse party to a motion for summary judgment shall serve a response and supporting materials, if any, within twenty-one days after the motion is served. Ark. R. Civ. P. 56(c)(1). Under Rule 6(d), “Whenever a party has the right... to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or commercial delivery company, three (3) days shall be added to the prescribed period.”

Hamilton was served with appellees’ motion for summary judgment on October 4, 2005. She argues on appeal that she timely responded within the time prescribed by our rules when she sent appellees’ counsel a copy of her “Plaintiffs Designation of Expert Witness” designating Dr. Harold Miller as her only expert witness and attaching his affidavit to the notice. Appellees assert that this paper was wholly insufficient as “a response” to the summary-judgment motion as contemplated by our Rules of Civil Procedure. They note that on November 28, 2005 they were served with Hamilton’s formal response, entitled “Plaintiff Susan R. Hamilton’s Response to Defendant’s Motion for Summary Judgment,” which addressed the merits of their motion for summary judgment. They contend that this response was untimely and that the court’s striking of it was proper because of untimeliness.

We reject Hamilton’s argument that the document designating Dr. Miller as her expert witness was a response to the motion for summary judgment. Neither the document nor the attached affidavit addressed the merits of the motion, and nothing in the record indicates that either party treated this paper as a response to the motion before Hamilton served her actual response on November 28, 2005. Appellees’ summary-judgment motion was served on Hamilton on October 4, 2005, and, without requesting an extension of time within which to file her response, she did not serve her response until almost eight weeks later. The trial court did not err in finding that Hamilton did not respond within the time allowed by our Rules of Civil Procedure; therefore, there was no error in the striking of her response on the basis of untimeliness.⁵

Supplementation of Dr. Miller’s Affidavit

As her third point on appeal, Hamilton contends that the circuit court erred in denying her motion to file a supplemental affidavit of her designated expert witness, Dr. Harold Miller. This motion was submitted to the trial court approximately a month before the scheduled date of the summary-judgment hearing on May 12, 2006. The court denied the motion to supplement at the conclusion of the May 12 hearing.

Hamilton argues that the denial of her motion to supplement Dr. Miller’s affidavit was error because service of his original affidavit was timely and appellees would suffer no surprise or prejudice by supplementation of the affidavit. She points out that, under Ark. R. Civ. P. 56(e), the circuit court may permit affidavits to be supplemented by further affidavits. However, as we noted in our discussion of Hamilton’s second point on appeal, the paper designating Dr. Miller as Hamilton’s expert witness was not a response to appellees’ motion for summary judgment. Thus, we need not address any argument regarding supplementation of Dr. Miller’s affidavit.

Hamilton also argues that a written order of the circuit court, marked with a file date of May 10, 2006, granted “leave to submit supplemental affidavit of Dr. Harold Miller.” The order, submitted to the court by Hamilton as a proposed order, was entered without any of the other parties’ knowledge, and no mention was made of it at the hearing two days later. At the hearing on May 12, 2006, the court denied Hamilton’s motion to supplement Dr. Miller’s affidavit, and an order to that effect was entered on June 1, 2006. By written order of June 26, 2006, the court vacated the order of May 10, 2006 and left its order of June 1, 2006 undisturbed. The denial of the motion to supplement was within the discretion given to the trial court by Rule 56(e). Further, Hamilton has demonstrated no prejudice from the mistaken granting of her motion.

Oral Motion for a Continuance

Hamilton contends in her final point on appeal that the trial court erred by denying her oral motion for a continuance at the hearing on May 12, 2006. She argues on appeal, as she did to the trial court, that sufficient discovery had not taken place and that she had not been able to schedule depositions with appellees.

Rule 56(f) allows a party opposing a motion for summary judgment to request a continuance:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may . . . order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Ark. R. Civ. P. 56(f). Under this rule, the decision on whether to grant a continuance is a matter of discretion with the trial court. Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).

Hamilton did not submit an affidavit stating the reasons that the trial court should order a continuance to allow further discovery, as is required by Rule 56(f). From her counsel’s comments to the trial court during the hearing, it appears that the additional discovery Hamilton desired was for appellees to take the deposition of Dr. Miller, an offer that appellees’ attorney had earlier declined. The trial court acted well within its discretion in denying Hamilton’s oral motion for a continuance.

Affirmed.

Gladwin, Marshall, Vaught, and Miller, JJ., agree. Baker, J., dissents.

1 The dissent does not acknowledge that the purpose of summary judgment is to avoid the waste of time, work, and money involved in requiring the trial of a case when a party cannot produce evidence supporting the existence of a fact necessary to establish his claim or defense. Joey Brown Interest, Inc. v. Merchants Nat’l Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985). The well-recited standard to be applied in summary-judgment cases is whether there is evidence sufficient to raise a fact issue. See Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712, 715 (1998) (citing Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995)). Rather, the dissenting opinion seems to suggest that even though Hamilton’s expert doctor could not, without speculation, testify that the appellee doctors had violated any standard of care, she should, nonetheless, be given a chance to present that proof at trial because the appellees have not, in their motion for summary judgment, presented affirmative proof that they did not violate any standard of care. The dissent’s position ignores Ark. Code Ann. § 16-114-206, which places the burden on the plaintiff to produce expert evidence establishing the essential elements of his or her claim, andArk. R. Civ. P. 56(c), which mandates the grant of summary judgment where the pleadings, discovery, and affidavits, if any, show that there is no genuine issue as to any material fact.

In any case, medical-malpractice or otherwise, summary judgment is appropriate where the moving party demonstrates that the opposing party will be unable, at trial, to prove an essential element of his or her claim. See Celotex Corp. v. Catrett, supra (stating that summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial); Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66, 968 S.W.2d 72 (1998) (stating that the role of summary judgment is simply to decide whether material questions of fact exist to be resolved at trial).

2 The dissenting judge cites Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986) and Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) for the proposition that the defendant/movants had to prove the requisite standard of care and that they had conformed to that standard. However, in Wolner, unlike the present case, the defendant doctor/movant filed a motion for summary judgment and attached his affidavit and the affidavit of his consulting physician stating merely that the doctor had not been negligent. Describing these affidavits as mere “conclusory assertions,” the supreme court stated, “When that is virtually all the supporting strength of a motion for summary judgment then the movant has failed to make a prima facie showing of entidement to summary judgment and the burden of going forward does not shift to the opposing party.” 290 Ark. at 303, 718 S.W.2d at 944 (emphasis added). Likewise, in Cash, the proof offered by the defendant/movant in support of his motion for summary judgment was found by the supreme court to be lacking where the deposition testimony of the consulting doctor failed to establish a prima facie case of lack of causation.

Unlike the movant/defendants in Wolner and Cash, supra, here the movants have established in their motion for summary judgment that the deposition testimony of Hamilton’s expert medical witness demonstrated that Hamilton lacked proof on an essential element of her claim because Dr. Hume could not state, without speculating, that a third bleeding site existed during the second surgery that Drs. Allen and Taylor should have discovered. Neither Wolner nor Cash involved a summary judgment in which the movant demonstrated an inability on the part of the plaintiff to prove one of the essential elements required to be proved in a medical-malpractice case.

3 However, 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 instruments or failure to remove a sponge from the incision before closing it. Mitchell v. Lincoln, 366 Ark. at 598, 237 S.W.3d at 460 (citing Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944)).

4 The dissenting judge misconstrues today’s majority opinion as assigning to a plaintiff in a medical-malpractice case a higher burden of proof at the summary-judgment stage than is assigned to a plaintiff in any other type of case. To the contrary, we make no such distinction. Quite simply, in a medical-malpractice case, as in any other type of case, when a party cannot present proof on an essential element of his or her claim, there is no remaining genuine issue of material fact and the party moving for a summary judgment is entitled to judgment as a matter of law. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992) (citing Short v. Little Rock Dodge, Inc., 297 Ark. 104, 106, 759 S.W.2d 553, 554 (1988), and Celotex, supra). See Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003) (affirming summary judgment where plaintiff offered no proof of coercive actions or efforts to extort anything from him in abuse-of-process case against grocery store and its security officer); Irvin v. Jones, supra (affirming summary judgment because plaintiffs presented no proof of delivery, an essential element of their claim that certificates of deposit were gifts inter vivos); Short v. Little Rock Dodge, Inc., supra (affirming summary judgment where plaintiffs claiming negligence and strict liability for manufacture and sale of a defective product were unable to produce evidence that a defect in the car or the dealer’s negligence in failing to repair it caused the fatal automobile accident; when the summary judgment motion was made, the trial court had before it depositions and responses to requests for admissions and interrogatories).

5 The designation of witness was served on October 27,2005, twenty-three days after Hamilton was served the summary-judgment motion on October 4. Hamilton argues that, because the motion was served by both fax and mail, Rule 6(d) allowed three days for mailing in addition to the twenty-one days prescribed by Rule 56(c)(1), for a total of twenty-four days.

Appellees argue that Hamilton had only twenty-one days from October 4 to serve her response. Because we agree with the trial court that the designation of witness is not a response to the motion, we need not decide this issue.