Michael B. Stewart v. William Deaton, M.D.

2021 Ark. App. 73, 618 S.W.3d 181

• Court: Court of Appeals of Arkansas
• Decided: February 17, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 73 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION II 2023.06.22 13:23:58 -05'00' No. CV-20-61

2023.001.20174 Opinion Delivered: February 17, 2021 MICHAEL B. STEWART APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, NINTH DIVISION WILLIAM DEATON, M.D.; MELANIE [NO. 60CV-17-5760] HOOVER, M.D.; RADIOLOGY ASSOCIATES, P.A.; MERRITT RAUSCH; WILLIAM CARLE, M.D.; HONORABLE MARY SPENCER OCCUPATIONAL HEALTH MCGOWAN, JUDGE CENTERS OF ARKANSAS D/B/A CONCENTRA HEALTH SERVICES, AFFIRMED INC.; AND JOHN AND JANE DOES A–Z APPELLEES

RITA W. GRUBER, Judge

Appellant Michael Stewart timely appeals two Pulaski County Circuit Court orders

dismissing his complaint for medical malpractice pursuant to summary-judgment motions

filed by appellees and finding that he failed to demonstrate he had a qualified expert witness.

The appellees are William Deaton, M.D.; Melanie Hoover, M.D.; Radiology Associates,

P.A. (RAPA); Merritt Rausch; William Carle, M.D.; and Occupational Health Centers of

Arkansas d/b/a Concentra Health Services, Inc. (Concentra). For reversal, appellant first

contends that appellees failed to carry their initial burden of proving that appellant was

required to provide expert testimony and, second, that appellant’s affidavit supplied in response to appellees’ motions for summary judgment raised material questions of fact left

unanswered. We affirm.

Appellant’s initial and amended complaints alleged the following facts. On October

13, 2015, appellant went to Concentra Health Center after he injured his back at work

while lifting a “fifty pound chiller.” He was seen by Merritt Rausch, 1 who was supervised

by Dr. Carle. An x-ray was ordered, and appellant was prescribed medicine and physical

therapy three times a week for two weeks. Appellant returned to Concentra on October 15

and reported that he was doing worse. On October 16, RAPA performed computerized

tomography (CT) scans of appellant’s lumbar spine and bony pelvis. Dr. Deaton did not

identify a fracture in appellant’s lumbar spine, and Dr. Hoover did not identify a fracture in

appellant’s bony pelvis. Appellant had continued pain and sought a second opinion from

Dr. Allan Gocio at the University of Arkansas for Medical Sciences (UAMS) on November

20. Dr. Gocio diagnosed appellant with a herniated disc at L5-S1 and subsequently

performed surgery to repair the herniated disc.

On October 12, 2017, appellant filed a medical-malpractice action against appellees

alleging that they failed to properly diagnosis his condition; caused a delay in the proper

diagnosis of his condition; failed to properly read CT scans and x-rays; and failed to properly

treat his condition. Appellant alleged that Concentra was vicariously liable for the negligence

of Rausch and Dr. Carle and that RAPA was vicariously liable for the actions of Dr. Deaton

1 At the hearing on the motion for summary judgment, Rausch was identified as a physician assistant.

2 and Dr. Hoover. An amended complaint, which basically made the same allegations of

negligence, was filed May 8, 2018. 2

On August 29, 2018, Dr. Deaton, Dr. Hoover, and RAPA filed requests for

admission, which asked appellant to admit that he did not have the requisite expert

testimony to establish the elements of his medical-malpractice claim. On October 3,

Rausch, Dr. Carle, and Concentra filed identical requests for admission. These requests for

admission were served on appellant, but he did not file responses to either of the requests. 3

Concentra, Rausch, and Dr. Carle filed a motion for summary judgment on

November 21, 2018, arguing that they were entitled to summary judgment because the

attached requests for admission should be deemed admitted, and without expert testimony,

appellant could not meet his burden of proof. They also argued that one of appellant’s

discovery responses indicated that he did not consider them to be liable. RAPA, Dr. Deaton,

and Dr. Hoover filed a similar motion for summary judgment on November 26 contending

that they were entitled to summary judgment because their attached requests for admission

should be deemed admitted and conclusively establish that appellant could not satisfy his

burden of proof.

2 The initial complaint referred to Dr. Carle as Dr. William Scott. The amended complaint corrected this misnomer. The amended complaint also changed the party name for Concentra to Occupational Health Centers of Arkansas d/b/a Concentra Health Services. 3 The circuit court, in the orders that are on appeal, ruled that the requests were deemed admitted pursuant to Rule 36 of the Arkansas Rules of Civil Procedure. Appellant does not challenge this ruling on appeal.

3 After two extensions of time, appellant filed responses to the summary-judgment

motions on January 18, 2019, arguing that the deemed admissions are not dispositive of his

claim and that, although appellant did not have an expert when the requests for admission

were due, he had since retained an expert and could satisfy the statutory burden of proof at

trial. In support of his response, appellant attached an affidavit of Dr. Vernon Johnson. In

reply, Rausch, Dr. Carle, and Concentra argued that the response was untimely and could

not be considered; appellant’s response and affidavit did not create genuine issues of fact;

and the affidavit itself is substantively insufficient. Dr. Deaton, Dr. Hoover, and RAPA

made similar arguments in their reply.

On March 14, 2019, the circuit court held a hearing on the motions for summary

judgment. Appellant’s counsel conceded that the requests for admission needed to be filed

but were not filed. However, he argued that even though those statements were admitted

at that time, it did not prevent appellant from going forward based on Dr. Johnson’s affidavit.

In addition, the parties argued whether appellant’s affidavit was sufficient to create a genuine

issue of material fact in order to defeat appellees’ motions for summary judgment. Part of

this argument included whether Dr. Johnson was a qualified expert. Appellant’s counsel

conceded that Dr. Johnson’s curriculum vitae was not attached to the affidavit as indicated

but argued that the affidavit was nevertheless sufficient because the doctor attests that he is

a “medical doctor.” The circuit court took the case under advisement and entered two

orders on September 20, 2019, granting summary judgment to appellees. The orders

provided in pertinent part: (1) appellant failed to respond to appellees’ requests for admission

and therefore the matters contained therein were deemed admitted pursuant to Rule 36 of

4 the Arkansas Rules of Civil Procedure; (2) appellant was granted extensions to respond to

the motions for summary judgment; (3) appellant’s responses filed January 18, 2019, did not

include the curriculum vitae for the physician; (4) “Without the affidavit, there is no way

to establish whether or not the medical doctor is a ‘qualified expert’ pursuant to Arkansas

Code Annotated section 16-114-206(a)(1)”; (5) proof required to survive a motion for

summary judgment in a medical-malpractice case must be in the form of expert testimony; 4

and (6) appellant failed to demonstrate that he has a qualified expert and therefore his claim

cannot be sustained. Appellant filed a timely notice of appeal from both orders.

On appeal, we need only decide if the granting of summary judgment was

appropriate based on whether the evidence left a material question of fact unanswered.

Robson v. Tinnin, 322 Ark. 605, 612, 911 S.W.2d 246, 249–50 (1995). The burden of

proving there is no genuine issue of material fact is upon the moving party, and all proof

submitted is viewed favorably to the opposing party, with all doubts and inferences resolved

in favor of the opposing party. Id. Once the moving party makes a prima facie showing of

entitlement to summary judgment, the opposing party must meet proof with proof that a

genuine issue of material fact exists. Id.

In medical-malpractice actions, unless the asserted negligence could be

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

proving three propositions by expert testimony: the applicable standard of care; that the

4 We note that expert testimony is required to establish the elements of a medical- malpractice claim unless the asserted negligence is within the common knowledge of a layperson. See Ark. Code Ann. § 16-114-206(a); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).

5 medical provider failed to act in accordance with that standard; and that such failure was the

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

is well settled that a plaintiff must present expert testimony 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. Haase v. Starnes, 323 Ark.

263, 915 S.W.2d 675 (1996).

Appellant first argues that appellees failed to carry their initial burden of proving that

appellant was required to provide expert testimony. He contends that appellees had the

“threshold burden of establishing that the asserted negligence . . . did not lie within the

jury’s comprehension as a matter of common knowledge, the applicable standard of care

was not a matter of common knowledge, and that a jury must have the assistance of experts

to decide the issue in this case.” Appellant, however, did not raise this argument either in

response to the motion for summary judgment or at the hearing. It is well settled that this

court will not consider arguments raised for the first time on appeal. Worden v. Kirchner,

2013 Ark. 509, at 5, 431 S.W.3d 243, 247 (2013). 5

Regardless, our supreme court has held that the defendants/movants in a medical-

malpractice case met their burden of proving a prima facie case for summary judgment by

showing that the plaintiff has no expert to testify as to the breach of the applicable standard

of care. See, e.g., Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996); Robson, supra. In

5 Although appellant did not raise the burden-of-proof issue below, appellant touched on the issue of common knowledge at the hearing, albeit briefly.

6 Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007), this court took the

opportunity to review and clarify the parties’ burdens of proof regarding summary judgment

in a medical-malpractice action. We stated:

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 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 plaintiff’s claim. See Ark. R. Civ. P. 56 and Celotex [Corp. v. Catrett, 477 U.S. 317 (1986)].

Id. at 249, 267 S.W.3d at 634.

In the present case, appellees met their initial burden by showing, from the attached

requests for admissions to which appellant failed to file responses, that appellant had no

expert to testify as to the elements of his medical-malpractice claim in order to meet his

burden of proof. See Hardesty v. Baptist Health, 2013 Ark. App. 731, 431 S.W.3d 327. In

Hardesty, we affirmed the grant of summary judgment to the defendants in a medical-

malpractice action because the appellants failed to respond to requests for admission. We

explained that by failing to respond to the requests for admission, appellants had admitted

that they had no expert testimony to support the allegations in their complaint. Id.

Appellants in that case also argued that the issue of negligence was within the common

knowledge of the jury, but we did not address the argument because they failed to explain

how the issue would be within the common understanding of the jury, noting that we do

not consider arguments without convincing argument or authority. Id. at 8, 431 S.W.3d at

332. Inasmuch as appellant is suggesting that the issues in this case are within the common

knowledge of the jury, like the appellants in Hardesty, appellant has failed to provide an

7 explanation, and we do not consider arguments without convincing argument or authority.

Id.

For his second point on appeal, appellant argues that his affidavit from Dr. Vernon

Johnson left material questions of fact unanswered. In medical-malpractice cases, a defendant

is entitled to summary judgment when it is shown that the plaintiff has no qualified expert

to testify as to the applicable standard of care. Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App.

191, 199, 204 S.W.3d 579, 584 (2005) (citing Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d

253 (1996); Robson, supra; Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995)). The

affidavit of Dr. Johnson does not establish that he is a qualified medical expert. The

determination of an expert witness’s qualification is within the sound discretion of the circuit

court. First Commercial Tr. Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996). It is not

critical whether the proposed expert is a general practitioner or a specialist so long as he

exhibits knowledge of the subject. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986).

When a duly licensed and practicing physician has gained knowledge of the standard of care

applicable to a specialty in which he is not directly engaged but as to which he has an

opinion based on education, experience, observation, or association within that specialty,

his opinion is competent. Id.

Here, Dr. Johnson’s affidavit provides only that he is a “medical doctor.” Although

the affidavit states that his curriculum vitae is attached, it was not attached, a fact that

appellant concedes. Given these facts, we cannot say that the circuit court abused its

discretion in determining that Dr. Johnson is not a qualified expert witness.

8 In Dodd, supra, this court upheld a grant of summary judgment to defendants in a

medical-malpractice case on the basis that the plaintiff’s expert witness was not qualified to

offer an expert opinion. The affidavit in that case provided that the doctor completed

medical school in 1956 after which he completed a two-year internship at UAMS and

received a year of training as a staff physician in the psychiatric ward at Fort Roots VA

Hospital. This training was followed by a forty-one-year practice as an anesthesiologist,

where a large number of his patients were under psychiatric care. In affirming, we found no

abuse of discretion because the affidavit failed to demonstrate that the doctor was

knowledgeable by either training or experience as to the standard of care for psychiatric

patients. We elaborated that the affidavit did not specify whether the doctor treated patients

at Fort Roots for their physical ailments or psychiatric conditions and did not disclose

whether he had become intimately familiar with the diagnosis and treatment of psychiatric

patients in either his one-year stint at Fort Roots, or his forty-one-year career as an

anesthesiologist. Further, we agreed with the appellees that the doctor’s statement as to his

qualifications was vague and conclusory and did not establish sufficient familiarity with the

field of either psychiatry or psychology in order to render an expert opinion. Id. (citing

Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989)).

In stark contrast, Dr. Johnson’s affidavit provides only that he is a “medical doctor.”

There is no information about his qualifications, education, or experience from which the

circuit court could conclude that he was a qualified medical expert. On these facts, we

cannot say the circuit court abused its discretion. Accordingly, we affirm the circuit court’s

orders granting summary judgment.

9 Affirmed.

VIRDEN and BARRETT, JJ., agree.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

Friday, Eldredge & Clark, LLP, by: Tyler D. Bone, for separate appellees William

Deaton, M.D.; Melanie Hoover, M.D.; and Radiology Associates, P.A.

Barber Law Firm, PLLC, by: G. Spence Fricke and Rachel E. Hildebrand, for separate

appellees Merritt Rausch; William Carle, M.D.; and Occupational Health Centers of

Arkansas d/b/a Concentra Health Services, Inc.