Herman Dixon, Personal Representative of the Estate of Nora G. Dixon, and on Behalf of the Wrongful Death Beneficiaries of Nora G. Dixon v. P. Reddy Tukivakala, M.D., P.A.; And P. Reddy Tukivakala, M.D., Individually

2020 Ark. App. 570, 614 S.W.3d 470

• Court: Court of Appeals of Arkansas
• Decided: December 9, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 570 Reason: I attest to the ARKANSAS COURT OF APPEALS accuracy and integrity of this document DIVISION IV Date: 2021-08-23 12:53:10 Foxit PhantomPDF Version: No. CV-20-202 9.7.5

Opinion Delivered: December 9, 2020

HERMAN DIXON, PERSONAL REPRESENTATIVE OF THE ESTATE APPEAL FROM THE PHILLIPS OF NORA G. DIXON, DECEASED, COUNTY CIRCUIT COURT AND ON BEHALF OF THE [NO. 54CV-18-76] WRONGFUL DEATH BENEFICIARIES OF NORA G. HONORABLE CHRISTOPHER DIXON W. MORLEDGE, JUDGE APPELLANT AFFIRMED V.

P. REDDY TUKIVAKALA, M.D., P.A.; AND P. REDDY TUKIVAKALA, M.D., INDIVIDUALLY APPELLEES

MIKE MURPHY, Judge This suit stems from the death of Nora Dixon. Nora passed away on November 14,

2016, at the age of 82, due to acute blood loss from a dialysis shunt. Appellant Herman

Dixon, as the personal representative of Nora’s estate and on behalf of Nora’s wrongful-

death beneficiaries, filed this medical-malpractice action against R.C.G. Mississippi, Inc.,

d/b/a/ Fresenius Medical Care Helena (Fresenius), and against Dr. Reddy Tukivakala

(referred to by the parties and throughout the litigation as Dr. Reddy). The issue on appeal

is whether the circuit court erred in granting summary judgment. We affirm.

Dr. Reddy had been Nora’s primary-care physician since 1997. When Nora entered

end-stage renal failure in 2010, Dr. Reddy ordered her on dialysis three times a week and oversaw her dialysis treatment, at least some of which she was receiving at Fresenius’s dialysis

center in Helena, Arkansas.

To facilitate dialysis, Nora had an arteriovenous graft (AV graft) in her left arm above

her elbow. In late September 2016, Nora underwent dialysis at a Fresenius Clinic in

Memphis, Tennessee. An employee at the Memphis clinic stuck Nora in a weak area, which

resulted in excessive bleeding from the AV graft. On October 13, 2016, Nora called Dr.

Reddy because she was sore at the dialysis-access port and had a lesion near the AV graft.

Dr. Reddy prescribed a course of antibiotics. When he saw her at Fresenius on October 28,

he noticed the lesion was healing but that she was also developing a pseudoaneurysm (a

ballooning under the skin) near the graft site. Dr. Reddy referred her to vascular surgeon

Dr. Eric Gardner for evaluation. Dr. Gardner specializes in dialysis-access surgery, and he

determined Nora needed a graft replacement. The replacement was scheduled for

November 15, 2016. At the evaluation, Dr. Gardner was aware of the prior infection, but

he determined that the existing AV graft was acceptable for continued use until he could

replace it.

On November 14, Nora went to Fresenius for her routine dialysis. When she

returned home, she began to hemorrhage from the AV graft. She passed away from acute

blood loss from the dialysis shunt.

Nora’s estate settled with Fresenius, and her claims against Fresenius were dismissed

with prejudice. The remaining litigation revolves around the estate’s allegations that Dr.

2 Reddy was negligent in his assessment and treatment of Nora’s AV graft, and that negligence

was the proximate cause of Nora’s injuries. Specifically, the appellant alleged that

[Dr. Reddy] was negligent and failed to meet the applicable standard of care in providing medical services to Decedent, in one or more of the following ways; any, some, or all of which are departures from the accepted standard of care for such health care providers in the same or similar communities, as follows:

a. by failing to provide Decedent with routine and accurate inspection and examination of the AV graft, so as to assess for breakdown of the graft in order to timely and adequately intervene to prevent the graft’s failure;

b. by failing to provide accurate assessment and proper treatment to Decedent at the first sign of graft deterioration;

c. by failing to provide Decedent with adequate and appropriate preventative care; and

d. by improperly allowing Decedent to continue dialysis using the failing AV graft.

Dr. Reddy answered and later moved for summary judgment on the basis of lack of duty

and lack of proximate legal causation. He argued that his referral to Dr. Gardner and Dr.

Gardner’s independently formulated treatment plan regarding continued use of the existing

AV graft extinguished any continuing duty and severed the causal chain to Nora’s death

from the sudden and unexpected failure of her AV graft.

Dixon replied and argued that Dr. Reddy owed duties to Nora and that those duties

could not be extinguished by mere virtue of referring her to another doctor because his

breach of those duties initiated the causal chain of events ultimately causing the injury. The

circuit court heard oral argument on the motion. In the order granting Dr. Reddy’s motion

for summary judgment, the circuit court explained that

3 1. The decedent, Ms. Dixon, had no interaction with Dr. Reddy after his evaluation of her on October 28, 2016. Thus, he had not seen her for seventeen days prior to her death. Ms. Dixon had not contacted Dr. Reddy by telephone, come to his office, or otherwise sought his guidance as to any issue after October 28, 2016.

2. On October 13, 2016, Dr. Reddy prescribed antibiotics to Ms. Dixon at her request. After that time, he referred her to Dr. Gardner for the evaluation of a vascular surgeon. Once Dr. Gardner saw the patient and developed a treatment plan for her, that broke any alleged causative link between Dr. Reddy’s earlier treatment of Ms. Dixon and her ultimate death.

3. The patient did not seek Dr. Reddy’s advice or treatment with respect to the treatment plan put in place by Dr. Gardner. Dr. Reddy had no independent duty to review Dr. Gardner’s plan as a vascular surgeon, nor did he have a duty to provide a different plan with respect to any vascular surgery needs of Ms. Dixon when she did not seek his advice. Furthermore, it is outside his area of expertise to provide advice regarding issues related to vascular surgery.

4. Ms. Dixon did not consult Dr. Reddy or advise him that she experienced a herald bleed on November 13, 2016. Dr. Reddy had no duty to undertake any actions in response to the herald bleed since he was unaware of it.

5. It is of material consequence that the nurses at Fresenius Medical Care Helena were the only people, other than Ms. Dixon, aware of the herald bleed. It has come to the Court’s attention that the plaintiff’s claims against R.C.G. Mississippi, Inc. d/b/a Fresenius Medical Care Helena have been resolved through a settlement.

6. In light of these findings: Dr. Reddy had no duty to intervene in the treatment plan set in place by Dr. Gardner, Dr. Reddy could have no duty to respond to the herald bleed of which he was unaware, and Dr. Gardner’s treatment of Ms. Dixon was an efficient, intervening cause breaking the causative chain between Dr. Reddy’s earlier treatment of Ms. Dixon and her ultimate outcome, the plaintiff cannot meet his burden of proof to establish a medical malpractice claim against Dr. Reddy.

Dixon timely appealed. On appeal, he argues that the circuit court erred in granting

Dr. Reddy’s motion for summary judgment because Dr. Reddy’s duties to Nora did not

extinguish once Dr. Gardner saw the patient and material questions of fact existed regarding

the issue of causation.

4 We consider summary judgment as one of the tools in a circuit court’s efficiency

arsenal. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, at 6, 422 S.W.3d 116, 120. The

purpose of summary judgment is not to try the issues but to determine whether there are

any issues to be tried. Id. Once the moving party has established a prima facie entitlement

to summary judgment, the opposing party must meet proof with proof and demonstrate the

existence of a material issue of fact. Id. On appellate review, we determine if summary

judgment was appropriate by ascertaining whether the evidentiary items presented by the

moving party in support of the motion leave a material question of fact unanswered. Id. We

view the evidence in the light most favorable to the party against whom the motion was

filed, resolving all doubts and inferences against the moving party. Id.

To establish a prima facie case of negligence, the plaintiff must demonstrate that the

defendant breached a standard of care, that damages were sustained, and that the defendant’s

actions were a proximate cause of those damages. Black v. Rowen, 2013 Ark. App. 349. The

appellees frame this case as one that hinges on the existence (or lack thereof) of a duty of

care and proximate cause. They assert that that a referring physician’s duty to a patient

should be considered extinguished once a specialist assumes care and exercises independent

medical judgment as to the patient’s treatment plan; particularly, when the causal chain is

broken by that specialist’s decisions. They contend that is exactly what happened here: Nora

saw Dr. Reddy about pain in her AV graft. Dr. Reddy prescribed some general antibiotics

and referred her to a specialist. The specialist assumed care, knowing the treatments Dr.

Reddy had already provided, and made his own independent assessment of the AV graft.

5 Thus, Dr. Reddy no longer owed Nora any duty of care such that he should be held liable

for her death.

In tort law, the nature of any given duty is defined by the applicable standard of care.

Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 225, 205 S.W.3d 741, 753 (2005) (Imber,

J., dissenting). Whether a duty exists is always a question of law not to be decided by a trier

of fact. Id. at 218, 205 S.W.3d at 747. In medical-malpractice actions, the standard of care

is fixed by the General Assembly and reads as follows:

(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:

(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, 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 or she practices or in a similar locality;

(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and

(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.

Ark. Code Ann. § 16-114-206 (Repl. 2016).

Our model jury instructions contemplate this type of duty owed by a physician to

his patient. They provide that a physician “must possess and apply with reasonable care the

degree of skill and learning ordinarily possessed and used” by other physicians of the same

specialty in good standing who practice in the same or a similar locality. AMI Civ. 1501.

6 This is not a duty that can be summarily extinguished. As a matter of law, a doctor cannot

be automatically absolved of potential wrongdoing that occurred before the doctor referred

the patient to a specialist. The mere existence of a duty, however, is not enough to support

a reversal on summary judgment.

Dixon argues that Dr. Reddy breached the standard of care, and that breach was the

proximate cause of Nora’s death. And while we agree with Dixon that Dr. Reddy owed a

duty to Nora, we disagree that this record establishes proof of causation. Proximate causation

is an essential element for a cause of action in negligence. Black, 2013 Ark. App. 349, at 5–

6. Proximate cause is defined, for negligence purposes, as that which in a natural and

continuous sequence, unbroken by any efficient intervening cause, produces the injury, and

without which the result would not have occurred. Id.

Dixon points us to the testimony of his expert witness, Dr. Huffman. Dr. Huffman

opined that Dr. Reddy breached the standard of care when he prescribed Nora a round of

antibiotics without first obtaining blood cultures and wound cultures to determine the

specific organism behind the infection at Nora’s graft site. Dr. Huffman stated:

I think that if a culture had been done, and it was positive, and appropriate antibiotics had been given, given those hypotheticals, it is more likely than not exsanguination would not have happened at the time it did.

But, Dr. Huffman continued,

Since a culture was not done, I cannot say to a reasonable degree of medical certainty that if a culture had been done then it would have been positive and would have shown that the antibiotic that was given was not effective as to this bug.

7 It is not enough for an expert to opine that there was negligence that was the

proximate cause of the alleged damages. Williamson v. Elrod, 348 Ark. 307, 311, 72 S.W.3d

489, 492 (2002). The opinion must be stated within a reasonable degree of medical certainty

or probability. Id.; Thomas v. Meadors, 2017 Ark. App. 421, at 13, 527 S.W.3d 724, 732. In

Meadors, we explained that because neither of the expert witnesses could opine to a

reasonable degree of medical certainty that the decedent would have lived but for the alleged

negligence, the appellant could not present proof on an essential element of his claim.

Meadors, 2017 Ark. App 421, at 13–14, 527 S.W.3d at 732.

Like the testimony in Meadors, Dr. Huffman’s testimony does not satisfy our

requirements that a plaintiff in a medical-malpractice case demonstrate that the defendant

breached a standard of care, and that breach was the proximate cause of the damages

sustained. At best, Dr. Huffman’s testimony establishes that if a culture had been done and

if that culture was positive and if the empiric antibiotic ordered was not an appropriate

treatment for that bacterial strain, then the graft would not have failed when it did. This is

too attenuated to survive summary judgment.

We acknowledge that proximate causation is usually a question of fact for a jury.

However, when reasonable minds cannot differ, a question of law is presented for

determination by the court. Without needing to determine if Dr. Reddy even breached his

duty of care by prescribing an empiric antibiotic and referring Nora to a specialist, Dixon

did not present proof on the element of proximate cause; thus, summary judgment was

appropriate.

8 Affirmed.

ABRAMSON and WHITEAKER, JJ., agree.

David A. Hodges, for appellant.

Anderson, Murphy & Hopkins, L.L.P., by: Julia M. Hancock and Mark D. Wankum, for

appellees.