Shields v. QHG of Springdale, Inc.

2009 Ark. 88, 302 S.W.3d 598, 2009 Ark. LEXIS 294, 2009 WL 483894
CourtSupreme Court of Arkansas
DecidedFebruary 26, 2009
DocketNo. 08-744
StatusPublished
Cited by5 cases

This text of 2009 Ark. 88 (Shields v. QHG of Springdale, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shields v. QHG of Springdale, Inc., 2009 Ark. 88, 302 S.W.3d 598, 2009 Ark. LEXIS 294, 2009 WL 483894 (Ark. 2009).

Opinions

JIM HANNAH, Chief Justice.

| iThis appeal arises from the filing of a medical malpractice action. Appellant L.D. Shields appeals an order of the Washington County Circuit Court granting summary judgment in favor of appellees Northwest Medical Center of Washington County and John H. Kendrick, M.D. Shields’s points on appeal are directed not at the granting of the summary judgment, but at his attorney’s representation of him in this matter. During the litigation, Shields’s attorney, Jeffrey G. Malm, filed a motion to withdraw as counsel. Prior to ruling on that motion, the circuit court granted summary judgment in appellees’ favor and ruled that Malm’s motion to withdraw as counsel was moot. On appeal, Shields asserts that the circuit court erred in permitting Malm to continue to serve as his attorney where the |2circuit court was aware that Malm had been discharged by Shields and where a conflict of interest was apparent. He also asserts that the circuit court erred in failing either to strike pro se pleadings or otherwise make an appropriate ruling on the pleadings. Shields claims that, due to his attorney’s conduct and errors of the circuit court, his rights were prejudiced, and he urges this court to reverse the circuit court’s findings and allow him additional time to pursue his cause of action. We affirm the circuit court.

On January 12, 2004, Kendrick performed surgery on Shields’s wife, Harriet. In a subsequent surgical procedure performed on May 4, 2004, Kendrick removed what he referred to as “a large piece of old mesh and Prolene suture” from Ms. Shields’s abdomen. On March 1, 2007, Shields, through his attorney, Malm, filed a medical malpractice action against Northwest and Kendrick, alleging that when Kendrick performed surgery on Ms. Shields on January 12, 2004, he left material inside her abdomen that became infected and kept her wound from healing.1 Shields attached to his complaint the affidavit of Stevan Van Ore, M.D., who treated Ms. Shields for a number of years as her primary care physician. In reference to the surgery, Van Ore stated that it was “clearly negligence and a breach of the standard of care for the hospital employees to fail to remove the gauze or foreign objects Isfr'omthe wound.”

On or around January 18, 2008, counsel for Northwest notified Malm of his intent to call as an expert witness, Bruce Hansel, Ph.D., Executive Director for Forensic Services at the Accident and Forensic Investigation Group in Plymouth Meeting, Pennsylvania. Northwest provided Malm a copy of the report prepared by Hansel following his examination and analysis of the foreign material removed from Ms. Shields. In Hansel’s opinion, the material was prosthetic mesh from a prior surgery that had been intended to remain in Ms. Shields’s body permanently. Hansel stated in the report that resorbable sutures may have been used, and that once the sutures dissolved, the material could have then migrated.

On January 28, 2008, Malm filed a motion to withdraw as counsel for plaintiff, on the grounds that he had received discovery from Northwest, indicating that the infected material over which the case arose had been tested and was not believed to be wound packing material negligently left by Kendrick, although he did remove the material in May 2004. Malm stated in his motion that he had thirty years of extensive litigation experience, including medical negligence cases, and that his evaluation of the case led him to the conclusion that, the case was not economically viable due to the fact that the material found was in all reasonable probability from one of Ms. Shields’s prior surgeries. Malm stated that, after consulting with medical experts and other attorneys, he believed that pursuing the case |4was “very unwise” and “potentially in bad faith.” Malm further stated that his opinion of the case was “diametrically opposed” to the opinion of Shields, and that this difference of opinion created a “fatal conflict.” Finally, Malm requested that the litigation be stayed for sixty days to give Shields time to employ other counsel.

On January 29, 2008, Kendrick filed a motion for summary judgment based on Shields’s failure to file an affidavit of a general surgeon, as required by Arkansas Code Annotated section 16-114-209; the findings in Hansel’s report; and Malm’s admission that he could find no expert to support Shields’s claims. Kendrick attached to his brief in support of the motion the affidavit of general surgeon Charles Mabry, M.D., who reviewed the medical records and other facts and evidence in the case and concluded that the material removed from Ms. Shields’s abdomen on May 4, 2004, was the prosthetic mesh originally placed in the hernia repair surgery performed by Marc Wittmer, M.D., in 1997. Northwest filed its own motion for summary judgment on February 4, 2008, attaching the affidavit of Mabry and the report of Hansel.

On February 7, 2008, Malm filed a response to the motions for summary judgment, on behalf of Shields, stating that there was no evidence to create a genuine issue of material fact. Malm did, however, advise the court on behalf of Shields, that Shields believed the material tested was not the material removed in May 2004, that there was some “malice” involved, and that the material had been “switched.” Malm stated that he had complied Rwith his legal and ethical duties and obligations in his representation of Shields, and he averred that he would not advance a groundless claim.

On February 12, 2008, Malm forwarded to counsel for Kendrick an order granting summary judgment that was already signed by Malm and counsel for Northwest. Malm asked counsel for Kendrick to sign the order and forward it to the circuit court.

On February 13, 2008, Shields filed a pro se motion to enlarge time for response to motion for summary judgment, request ing a continuance, pursuant to Arkansas Rule of Civil Procedure 56(f), to conduct additional discovery, and requesting that he be given time to hire new counsel. Shields attached to his motion a letter from Wittmer, who stated that the material removed from Ms. Shields in 2004 was shaped differently from the patch he used in the 1997 hernia repair surgery and appeared to be in a different location than where he had originally placed it. Kendrick responded to Shields’s motion to enlarge time, stating that Malm was still the attorney of record for Shields and that Malm had continuously and affirmatively acted as Shields’s attorney by filing pleadings on his behalf. Subsequently, the circuit court entered an order setting a hearing for March 27, 2008, to consider Malm’s motion to withdraw and the appellees’ motions for summary judgment.

On February 14, 2008, Kendrick filed a response to Malm’s motion to withdraw, arguing that summary judgment was warranted and that granting the motion to withdraw would unfairly delay proceedings and would cause unnecessary expense and stress for all | (¡parties. Kendrick requested that the circuit court require Malm to continue as Shields’s attorney until the pending motions for summary judgment could be adjudicated or, alternatively, until substitute counsel appeared for Shields and agreed to proceed with trial, which was scheduled for May 12-16, 2008.

On March 5, 2008, the circuit court held a telephone conference with Malm and counsel for both appellees. In response to the circuit court’s inquiry, Malm stated that he was still Shields’s attorney. Moreover, Malm agreed that summary judgment was appropriate and that his motion to withdraw as counsel was moot.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ricky Cleveland Alexander v. State of Arkansas
2021 Ark. App. 113 (Court of Appeals of Arkansas, 2021)
Langston v. Ark. Dep't of Human Servs.
2019 Ark. 152 (Supreme Court of Arkansas, 2019)
In re the Termination of: E. R. D.
Court of Appeals of Washington, 2017
Ransom v. JMC Leasing Specialties, LLC
2016 Ark. App. 509 (Court of Appeals of Arkansas, 2016)
Wooten v. State
2010 Ark. 467 (Supreme Court of Arkansas, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2009 Ark. 88, 302 S.W.3d 598, 2009 Ark. LEXIS 294, 2009 WL 483894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-qhg-of-springdale-inc-ark-2009.