First Commercial Trust Co. v. Rank
Annotate this Case
FIRST COMMERCIAL TRUST COMPANY, Substitute
Administrator of the Estate of Laura Allison
Fullbright, Deceased v. Joseph John RANK,
Mary Ellen Robbins, and Rheeta Stecker, M.D.
95-518 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 12, 1996
1. Evidence -- expert witness -- determination of qualifications.
-- The determination of an expert witness's qualification is
within the discretion of the trial judge; this discretion,
however, is not absolute, and the appellate court will reverse
if the trial court abuses its discretion.
2. Evidence -- expert witness -- not critical whether medical
expert is general practitioner or specialist. -- It is not
critical whether a medical expert is a general practitioner or
a specialist so long as he exhibits knowledge of the subject;
where 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 with that specialty, his opinion is competent.
3. Physicians & surgeons -- malpractice statute does not prohibit
general practitioner from testifying as an expert. -- Where
the particular issue relates to a question within the general
practitioner's own area of expertise, he is not prohibited by
the medical malpractice statute from testifying upon that
question as an expert.
4. Evidence -- expert witness -- emergency-medicine physician's
opinion on standard of care for doctors in detecting and
reporting child abuse was apposite -- variances in practices
not pivotal factor in diagnosing child abuse. -- Where an
emergency-medicine physician testified that the standard of
care for doctors in detecting and reporting child abuse would
be the same for emergency-room physicians and family
practitioners and that no specialized technology available
only to an emergency-room physician was necessary for these
evaluations, and where the physician based his opinion on the
pattern of visits made by the deceased child and her mother
made to their family doctor's office in June and July 1992 and
the medical records available, the supreme court saw no reason
why the physician's opinion would not be apposite and was
further persuaded that under the circumstances the variances
in practices would not be a pivotal factor in diagnosing child
abuse.
5. Physicians & surgeons -- similar-locality rule -- medical
expert not disqualified from testifying about child abuse. --
The supreme court did not view Panama City, Florida, the
medical expert's home town, as sufficiently dissimilar to Hot
Springs, where the deceased child's family doctor practiced
medicine, to disqualify the medical expert from testifying
about child abuse; the similar-locality rule is not a strict-
locality rule but incorporates the similar community into the
picture; the standard is not limited to that of a particular
locality but is that of persons engaged in a similar practice
in similar localities, giving consideration to geographical
location, size, and character of the community; the similarity
of communities should depend not on population or area in a
medical-malpractice case, but rather upon their similarity
from the standpoint of medical facilities, practices, and
advantages.
6. Evidence -- expert witness -- need not be one who has
practiced in particular locality if appropriate foundation is
established. -- An expert witness need not be one who has
practiced in the particular locality or is intimately familiar
with the practice in it in order to be qualified as an expert
in a medical malpractice action if an appropriate foundation
is established to demonstrate that the witness is familiar
with the standard of practice in a similar locality, either by
his testimony or by other evidence showing the similarity of
localities; conclusory statements that the physician is so
familiar are not enough, but the supreme court determined that
that was not the situation in the present case.
7. Evidence -- expert witness -- trial court abused its
discretion in excluding medical-expert testimony. -- In light
of the circumstances of the case, the supreme court concluded
that the trial court abused its discretion in excluding the
medical expert testimony of the emergency-medicine physician
and reversed and remanded the matter for a new trial solely
for the claim made under the Medical Malpractice Act.
8. Physicians & surgeons -- medical malpractice -- medical injury
defined -- statute encompasses cause of action for failure to
diagnose child abuse under facts of case. -- "Medical injury"
is defined under the Medical Malpractice Act at Ark. Code Ann.
16-114-201(3) (1987) as "any adverse consequences arising
out of or sustained in the course of the professional services
being rendered by a medical care provider, whether resulting
from negligence, error, or omission in the performance of such
services; ... or from failure to diagnose, ... or otherwise
arising out of or sustained in the course of such services";
the supreme court concluded that this broad language
encompasses a cause of action for failure to diagnose child
abuse under the facts of the present case and held that the
trial court appropriately refused to enter summary judgment in
favor of appellee family doctor on this point.
9. Negligence -- causation -- ordinarily a fact question for
jury. -- Causation is ordinarily a fact question for the jury
to decide.
10. Negligence -- causation -- fact issue existed on whether
failure to diagnose and report child abuse was partial cause
of child's death. -- While reporting child abuse would lead to
an investigation that could result in some prophylactic action
after the State entered the picture, the failure to report
allows the matter to fester unabated; the supreme court
concluded that a fact issue for the jury existed in the
present case on whether the failure to diagnose and report was
a partial cause of the child's death.
11. Motions -- directed verdict -- whether family doctor had
reasonable cause to suspect abuse was issue for resolution by
jury. -- Regarding appellant Administrator's contention that
the trial court erred in not directing a verdict in its favor
on the count of the family doctor's failure to report
reasonably suspected child abuse under Ark. Code Ann. 12-12-
507 (Repl. 1995), the supreme court concluded that, while
there was no doubt that the family doctor had suspicions about
child abuse, the question was whether she had reasonable cause
to suspect abuse; that was an issue for resolution by the
jury, and the jury resolved the issue in favor of the family
doctor.
12. Motions -- directed verdict -- supreme court reluctant to
affirm directed verdict on behalf of a plaintiff -- test not
met. -- The supreme court is extremely reluctant to affirm a
directed verdict on behalf of a plaintiff; no matter how
strong the evidence of a party who has the burden of
establishing negligence and proximate cause as facts may
comparatively seem to be, he is not entitled to have those
facts declared to have reality as a matter of law, unless
there is utterly no rational basis in the situation,
testimonially, circumstantially, or inferentially, for a jury
to believe otherwise; the supreme court declared that the test
was not met in this case and held that the trial court
committed no error in denying appellee Administrator's motion
for a directed verdict.
13. Appeal & error -- prevailing party cannot appeal. -- The
family doctor's cross-appeal on the "willful" component of the
child-abuse-reporting statute was not entertained by the
supreme court because she prevailed on that claim.
Appeal from Garland Circuit Court; Walter G. Wright, Judge;
affirmed in part; reversed in part and remanded.
Gary Eubanks & Associates, by: James Gerard Schulze and
William Gary Holt, for appellant/cross-appellee.
D. Scott Hickam, for appellees/cross-appellants Joseph John
Rank and Mary Ellen Robbins.
Friday, Eldredge & Clark, by: Tonia P. Jones, for
appellee/cross-appellant Rheeta Stecker.
Robert L. Brown, Justice. Associate Justice Robert L. Brown
February 12, 1996 *ADVREP9*
FIRST COMMERCIAL TRUST COMPANY,
SUBSTITUTE ADMINISTRATOR OF THE
ESTATE OF LAURA ALLISON
FULLBRIGHT, DECEASED,
APPELLANT/
CROSS-APPELLEE,
V.
JOSEPH JOHN RANK, MARY ELLEN
ROBBINS, AND RHEETA STECKER,
M.D.,
APPELLEES/
CROSS-APPELLANTS,
95-518
APPEAL FROM THE GARLAND COUNTY
CIRCUIT COURT,
NO. CIV 93-523,
HON. WALTER G. WRIGHT, JUDGE,
AFFIRMED IN PART; REVERSED IN
PART AND REMANDED.
The appellant, First Commercial Trust Company, Administrator
of the Estate of Laura Fullbright, appeals from a judgment in favor
of appellee Dr. Rheeta Stecker, who was the family doctor for Laura
Fullbright and her mother, Mary Ellen Robbins. The Administrator
asserts that the trial court abused its discretion in refusing to
allow a medical expert, Dr. Frederick Epstein, to testify with
respect to the standard of medical care regarding child abuse in
Hot Springs. We agree that this was error, and we reverse the
judgment in favor of Dr. Stecker and remand the matter for a new
trial on the medical negligence count. We affirm the judgment in
favor of Dr. Stecker on the count relating to failure to report
under the child abuse reporting statute, and we hold that the
refusal of the trial court to direct a verdict on this count in
favor of the Administrator was not error.
On June 12, 1992, Mary Ellen Robbins took her 12 1/2-month-old
baby, Laura Fullbright, to Dr. Rheeta Stecker for a "well-baby
checkup." Robbins was a pharmacist and had been a patient herself
of Dr. Stecker's for approximately five years. Dr. Stecker
referred to her as a "colleague." During that checkup, Dr. Stecker
noticed that Laura's forearm was angulated and swollen, but upon
checking, she determined that it was not tender and there was no
bruising. An X-ray showed that there was a fracture to both of the
bones of the lower left arm. Robbins and her boyfriend, Joe Rank,
stated that they did not know what had caused the fractures. Dr.
Stecker then referred Robbins to Dr. Robert Olive, an orthopedic
surgeon, to assure that the bone would heal properly. At that
time, Dr. Stecker believed that there was a possibility the child
had been neglected, and that belief was communicated to Dr. Olive.
After treating Laura, Dr. Olive stated in a letter to Dr. Stecker
that the bones would heal nicely and that there did not appear to
be any evidence of neglect.
On July 9, 1992, Robbins visited Dr. Stecker's office again.
During that visit, Robbins complained that Laura was "wobbly" and
unbalanced. Dr. Stecker did not find any signs of head trauma.
Dr. Stecker decided that Robbins had given Laura too much juice.
Because Laura had been on multiple antibiotics frequently for a
chronic ear infection, Dr. Stecker opined that there might be an
overabundance of yeast in her stomach, causing her to become
intoxicated.
On July 21, 1992, Robbins returned with Laura again. Dr.
Stecker was not there, but her husband, Dr. Elton Stecker, was
present and treated Laura. Dr. Elton Stecker's records state that
Laura had been nauseated the previous day and had vomited that
morning. When the child awoke, there was swelling on the right
side of the head in the temple area and over the right eye.
Robbins told Dr. Elton Stecker that the bruise above the right ear
was caused by a fall the week before.
The next morning, on July 22, 1992, Robbins made two phone
calls to the Stecker clinic. In the first of those calls, she
stated that she believed Laura was having an allergic reaction and
that the swelling over the right eye had gone down but that the
other eye had become swollen. Later on that morning, Robbins
called and stated that both eyes seemed to be swollen and that
Laura was running a temperature of approximately 99.5 degrees. She
was told by the nurse to bring Laura in.
When Laura was brought into the clinic, Dr. Rheeta Stecker
examined her. Prior to this examination, she referred to the notes
taken by her husband the previous day. Both of Laura's eyes now
appeared to be swollen, and there was some purplish discoloration.
Robbins informed Dr. Stecker that the child had fallen down several
stairs the week before and that several of the bruises were related
to that fall. Robbins asked if the swelling of the upper lids
could be related to allergies or to spider bites. Robbins told her
that Laura had had a watery nasal discharge for the last few days
which she thought was due to an allergy. At that point, Dr.
Stecker discussed the possibility of abuse with Robbins. Robbins
informed her that it was highly unlikely, but that her son,
Matthew, might have dropped Laura. She further stated that her
boyfriend, Joe Rank, was not the type to have a bad temper. Dr.
Stecker did not report her suspicions to the Arkansas Department of
Human Services.
On September 12, 1992, Robbins was working and left Laura with
Joe Rank. When she returned Rank informed her that Laura was
taking a nap and that she had fallen down in the driveway. When
Robbins went to wake Laura from her nap, she found Laura lying in
bed and moving her head from side to side. When she took a closer
look, she saw what appeared to be either juice or blood draining
from the corner of her mouth. When she picked Laura up, the child
was limp. She immediately took Laura to St. Joseph's Regional
Health Center in Hot Springs. At St. Joseph's, Laura was not
breathing and did not have a pulse. She was transported to
Arkansas Children's Hospital in Little Rock where she was later
pronounced dead.
The medical examiner, Dr. William Sturner, determined that the
cause of death was homicide. He found four bruises on the child's
scalp and bruises on her left hand and arm. He also found abraded
contusions on the mid-chest of the body and on the face, forehead,
the right eyebrow, and the right cheek. The most significant
injury, he concluded, was a fracture to the child's skull, with
corresponding brain damage. Dr. Sturner opined that those injuries
would have had to have been caused by a marked or severe force.
Suit was commenced on behalf of Laura's estate. The suit
alleged that Joe Rank intentionally assaulted Laura Fullbright and
that her mother, Mary Ellen Robbins, negligently placed Laura in
the care of Rank with the knowledge of his past abusive behavior.
Medical negligence was alleged against Dr. Rheeta Stecker in
addition to her failure to report her suspicions of child abuse
under the child abuse reporting statute. Prior to trial, Dr.
Stecker moved twice for summary judgment on the basis that the
alleged actions on her part were not violative of the child abuse
reporting statute. The second motion included a prayer for summary
judgment on the medical malpractice claim against her. The trial
court denied the motions.
The case went to trial, and the trial court, at the conclusion
of the plaintiff's case, granted a partial directed verdict in
favor of Rheeta Stecker on the issue of medical malpractice after
refusing to allow the plaintiff's expert, Dr. Frederick Epstein, to
testify as to the standard of medical care concerning child abuse
in Hot Springs. The case proceeded on the remaining issues, and
the jury returned a verdict against Joe Rank in favor of Matthew
Robbins, Laura's half-brother, in the amount of $1,000,000. The
jury found in favor of Mary Ellen Robbins and Dr. Rheeta Stecker on
the remaining failure to report count. Judgment was entered
accordingly.
I. Medical Expert Witness
The Administrator's first argument is the trial court erred in
excluding the testimony of Dr. Frederick Epstein on the standard of
care for diagnosing child abuse in Hot Springs, as required by the
Medical Malpractice Act and specifically by Ark. Code Ann. 16-
114-206(a)(1) (1987). Dr. Epstein testified that he was an
emergency medicine physician from Panama City, Florida. His
curriculum vitae confirmed that he was a highly qualified
physician.
Dr. Epstein testified that Panama City had a population of
approximately 80,000 people. He further testified that in terms of
the medical facilities available, Panama City was "very similar" to
Hot Springs and that he was unaware of any facilities needed to
detect possible child abuse that would have been available in
Panama City but not available in Hot Springs. He added that he was
familiar with the type of practice in which Dr. Stecker was
involved and had formulated an opinion about the standard of care.
At that point, the Administrator requested Dr. Epstein's opinion on
whether or not Dr. Stecker breached the standard of care.
Prior to the opinion being rendered, Dr. Stecker's attorney
asked to voir dire the witness on his qualifications. Dr. Epstein
admitted that he was an emergency room specialist rather than a
family practitioner and that he did not practice family medicine.
He added that the difference in the two specialties was that family
practitioners have an on-going doctor/patient relationship and that
that was usually not present in emergency room practice. He
testified, nevertheless, that the standard of care for doctors in
detecting and reporting child abuse would be the same for both
emergency room physicians and family practitioners. Counsel for
Dr. Stecker then objected to the admission of Dr. Epstein's opinion
on the standard of care relating to diagnosis of child abuse on
grounds of dissimilar practice and locality. The trial court
conditionally granted Dr. Stecker's motion to exclude the expert
testimony but allowed the Administrator to make a proffer of proof.
The Administrator first proffered the testimony of Dr. Stecker
concerning the medical community in Hot Springs. Dr. Stecker,
under questioning by the Administrator's counsel, testified that
Hot Springs, a community with a population of approximately 35,000,
had two acute and two subacute hospitals. One of the acute
hospitals usually had an occupancy of about 120 beds, although it
had a capacity of around 270. The other acute care hospital had a
capacity of closer to 70 beds, although it had an average occupancy
of about 60 patients. Dr. Stecker testified that although the
hospitals were located in Hot Springs, both of the hospitals drew
patients from throughout Garland County. She also testified that
there were approximately 150 physicians in Hot Springs, eight or
nine of whom were pediatricians. She added that the only equipment
needed in the evaluation of Laura Fullbright was X-ray equipment
and possibly a CT scanner, both of which were available to her.
She further testified that the injuries that she encountered in her
examination of Laura Fullbright were injuries that might be treated
by an emergency room physician.
After Dr. Stecker's testimony, the Administrator recalled Dr.
Epstein as part of his proffer. Dr. Epstein opined that based on
the testimony of Dr. Stecker it was his opinion that Panama City
was a comparable locality to Hot Springs. Dr. Epstein was then
handed a Hot Springs telephone book and was asked if he could draw
any conclusions about the makeup of the medical community based on
the yellow pages. From that, he testified that the range of
specialties and subspecialties available in Hot Springs was
comparable to the range of specialties available in Panama City.
He stated that the majority of patients that he encountered in the
emergency room were not suffering from life-threatening injuries
and that, although it was not intended for that purpose, the
emergency room is used by some as a clinic. Therefore, in reality,
he was able to know some of the patient's families and history as
well as Dr. Stecker might in her family practice. He added that
sometimes he saw patients as many as three times a month. He
concluded by stating that his opinion on this case turned more on
the history of the case and the physical examinations than on any
technology that was or was not available to Dr. Stecker. A Hot
Springs physician, he maintained, would apply the same standards in
taking the history of the case and performing the physical
examination that a Panama City physician would.
After the Administrator's proffer of Dr. Epstein's
qualifications, the trial court made the following ruling on the
admissibility of Dr. Epstein's opinion testimony:
The one burdensome thing that concerns the Court is that
you have a highly skilled expert, emergency room
practice, has written numerous times, has a curriculum
that's several pages. And here is a family practitioner.
And I just hesitate to find that that highly skilled
doctor would know what the standard is here in Hot
Springs, Arkansas, or this locale. For that reason, I
would exclude it.
Dr. Epstein then proffered his opinion that after reviewing the
documentation, he believed Dr. Stecker failed to meet the standard
of care by not reporting the suspected child abuse to investigating
agencies on July 22, 1992.
The determination of an expert witness's qualification is
within the discretion of the trial judge. Goodwin v. Harrison, 300
Ark. 474, 780 S.W.2d 518 (1989); McElroy v. Benefield, 299 Ark.
112, 771 S.W.2d 274 (1989); Phillips v. Clark, 297 Ark. 16, 759 S.W.2d 207 (1988). However, this discretion is not absolute, and
this court will reverse, if the trial court abuses its discretion.
Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991).
a. Different Specialty
In Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986),
this court expressed its agreement with the reasoning of Evans v.
Ohanesian, 38 Cal. App. 3d 125, 112 Cal. Rptr. 236 (1974), in which
the California court stated:
Nor is it critical whether a medical expert is a general
practitioner or a specialist so long as he exhibits
knowledge of the subject. Where 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 with
that specialty, his opinion is competent. [Citation.]
The reason for not requiring specialization in a
certified field is obvious. Physicians are reluctant to
testify against each other. [Citations.] Consequently,
when an expert can be found, it is immaterial whether he
is a general practitioner or a specialist providing he
has knowledge of the standard of care in any given field;
otherwise, the plaintiff could never prove a case against
a specialist unless he has an expert of the particular
specialty, and the plaintiff would never be able to sue
a general practitioner unless he had a general
practitioner who was willing to testify as an expert.
[Citation.]
290 Ark. at 192-193, 718 S.W.2d at 101. We then went forward and
rendered this holding:
We do hold that when the particular issue relates to a
question within the general practitioner's own area of
expertise, he is not prohibited by the malpractice
statute from testifying upon that question as an expert.
290 Ark. at 194, 718 S.W.2d at 101.
In the instant case, Dr. Epstein testified that the standard
of care for doctors in detecting and reporting child abuse would be
the same for emergency room physicians and family practitioners and
that no specialized technology available only to an emergency room
physician was necessary for these evaluations. Indeed, Dr. Stecker
agreed that she had the necessary equipment on hand to detect child
abuse. But she contended that Dr. Epstein's emergency room
practice and expertise made him unsuitable to testify about the
standard of care for a family practitioner without emergency room
expertise.
We disagree. What Dr. Epstein seemed to be asserting is that
the knowledge necessary to evaluate a potential child abuse
situation is one that is basic to the science of medicine and is
the same regardless of whether the physician had a family medicine
practice or an emergency room practice.
In this case, he based his opinion on the series of visits
which Laura and her mother made to Dr. Stecker's office in June and
July of 1992 and the doctors' notes and records respecting each
visit. Had only one visit been made with signs of neglect or
abuse, Dr. Stecker's argument about dissimilar practices and
knowledge of the family might have more merit. But here, in light
of the pattern of visits [June 12, 1992 (broken arm); July 9, 1992
(wobbly demeanor); July 21, 1992 (swollen right temple and right
eye); and July 22, 1992 (both eyes swollen and bruised)], and the
medical records available, we see no reason why Dr. Epstein's
opinion would not be apposite. We are further persuaded that under
these circumstances the variances in practices would not be a
pivotal factor in diagnosing child abuse. See Cathey v. Williams,
supra.
b. Similar Locality
Nor do we view Panama City, Florida as sufficiently dissimilar
to Hot Springs to disqualify Dr. Epstein from testifying about
child abuse. This court has addressed the similar locality rule in
several cases. In Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945
(1975), we wrote:
The rule we have established is not a strict locality
rule. It incorporates the similar community into the
picture. The standard is not limited to that of a
particular locality. Rather it is that of persons
engaged in a similar practice in similar localities,
giving consideration to geographical location, size and
character of the community. The similarity of
communities should depend not on population or area in a
medical malpractice case, but rather upon their
similarity from the standpoint of medical facilities,
practices and advantages. For example, appellants state
in their brief that it was uncontroverted that the
medical standards of practice in Jonesboro, Little Rock,
and Memphis are comparable. Thus, they could be
considered similar localities.
258 Ark. at 770, 531 S.W.2d at 948-949. (Citations omitted.)
An expert witness need not be one who has practiced in the
particular locality, or one who is intimately familiar with the
practice in it in order to be qualified as an expert in a medical
malpractice action, "if an appropriate foundation is established to
demonstrate that the witness is familiar with the standard of
practice in a similar locality, either by his testimony or by other
evidence showing the similarity of localities." White v. Mitchell,
263 Ark. 787, 568 S.W.2d 216 (1978). Conclusory statements that
the physician is so familiar are not enough. See Grice v.
Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992). But that is not the
situation in the case before us.
Here, unlike Grice v. Atkinson, supra, the trial court was
provided evidence of similar localities through the testimony of
Dr. Stecker and Dr. Epstein. There is, too, the irresistible
suggestion that whether child abuse was evident is a question that
spans localities irrespective of size and available technology. We
further do not believe that by being called to proffer testimony
about practice in Hot Springs Dr. Stecker was forced to be an
expert against herself as contemplated by Ark. Code Ann. 16-114-
207(3) (1987).
In light of the above, we conclude that the trial court abused
its discretion in excluding the medical expert testimony of Dr.
Epstein. We reverse and remand the matter for a new trial solely
for the claim made under the Medical Malpractice Act.
We next address whether a remand of the medical malpractice
claim for trial would be a futile and useless act. See Alexander
v. Twin City Bank, 322 Ark. 478, ___ S.W.2d ___ (1995). Dr.
Stecker contends that it would be since there is no cause of action
for medical negligence for failure to report child abuse and,
secondly, since there is no proof that the failure to report caused
the death of Laura more than 1 1/2 months later. In essence, Dr.
Stecker contends that the absence of a cause of action for medical
negligence is another reason to affirm the directed verdict by the
trial court.
Dr. Stecker cites us to Cechman v. Travis, 202 Ga. App. 255,
414 S.E.2d 282 (1992), for the proposition that a medical
negligence claim does not lie under these facts. In Cechman, the
doctor of a child later killed by an abusive father failed to
report suspected child abuse after one examination in the emergency
room. The Georgia Court of Appeals affirmed a grant of summary
judgment in part because common law medical negligence did not
impose a legal duty to discover and report a case of possible child
abuse.
The scope of medical injuries giving rise to potential
negligence claims in Arkansas, however, is apparently much broader
than that in Georgia. "Medical Injury" is defined under the
Medical Malpractice Act as "any adverse consequences arising out of
or sustained in the course of the professional services being
rendered by a medical care provider, whether resulting from
negligence, error, or omission in the performance of such services;
... or from failure to diagnose, ... or otherwise arising out of or
sustained in the course of such services." Ark. Code Ann. 16-
114-201(3) (1987). We conclude that this broad language
encompasses a cause of action for failure to diagnose child abuse
under the facts of this case. Moreover, counsel for Dr. Stecker
conceded at oral argument that a child's death the day after
suspected child abuse might be actionable as medical malpractice.
We believe that the trial court appropriately refused to enter
summary judgment in favor of Dr. Stecker on this point.
There is, then, the question of causation. Dr. Stecker points
to the absence of a causative relationship as still another reason
to affirm the directed verdict. But causation is ordinarily a fact
question for the jury to decide. See Catlett v. Stewart, 304 Ark.
637, 804 S.W.2d 699 (1991). Here, Doug Shuffield, the brother of
Robbins and an investigator for the Department of Human Services,
testified for the Administrator. He stated that had Dr. Stecker
voiced suspicion to his agency of child abuse involving Laura, he
would have recommended that an investigation be commenced. Though
he believed that the complaint would have ultimately been deemed
"unfounded," he acknowledged that in some instances knowing someone
is going to be investigated might offer protection against abuse.
He agreed that it might cause an abuser "to be more careful," and
"mind their manners from the standpoint of abuse."
This stands to reason. Reporting child abuse would lead to an
investigation which could result in some prophylactic action after
the State entered the picture. In this case, Laura's father, Jim
Fullbright, might have been alerted to take some legal action. The
failure to report, however, allows the matter to fester unabated.
We conclude that a fact issue for the jury exists in this case on
whether the failure to diagnose and report was a partial cause of
the death of Laura Fullbright.
II. Directed Verdict
The Administrator also contends that the trial court erred in
not directing a verdict in its favor on the count of failure to
report reasonably suspected child abuse under 12-12-507.
According to the Administrator's contention, Dr. Stecker admitted
that she suspected child abuse but did nothing about it. As a
result, the Administrator urges that a directed verdict on this
point was appropriate. We disagree. There is no doubt that Dr.
Stecker had suspicions but the question is whether she had
reasonable cause to suspect abuse. That was an issue for
resolution by the jury, and the jury resolved the issue in favor of
Dr. Stecker.
Furthermore, we have made it clear that we are extremely
reluctant to affirm a directed verdict on behalf of a plaintiff.
Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). In Young we
quoted with approval from United States Fire Ins. Co. v. Milner
Hotels, 253 F.2d 542, 547 (8th Cir. 1958):
Thus, no matter how strong the evidence of a party,
who has the burden of establishing negligence and
proximate cause as facts, may comparatively seem to be,
he is not entitled to have those facts declared to have
reality as a matter of law, unless there is utterly no
rational basis in the situation, testimonially,
circumstantially, or inferentially, for a jury to believe
otherwise.
311 Ark. at 555, 845 S.W.2d at 512; see also Potlatch Corp. v.
Missouri Pacific R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995).
That test is not met in this case, and the trial court committed no
error in denying the Administrator's motion for a directed verdict.
We will not entertain Dr. Stecker's cross-appeal on the
"willful" component of the child abuse reporting statute because
Dr. Stecker prevailed on that claim. See Walker v. Kazi, 316 Ark.
616, 875 S.W.2d 47 (1994).
Affirmed in part. Reversed and remanded in part.
Glaze, J., concurs.
Corbin, J. dissents. *ADVREP9A*
FIRST COMMERCIAL TRUST COMPANY,
SUBSTITUTE ADMINISTRATOR OF THE
ESTATE OF LAURA ALLISON
FULLBRIGHT, DECEASED,
APPELLANT/
CROSS-APPELLEE,
V.
JOSEPH JOHN RANK, MARY ELLEN
ROBBINS, AND RHEETA STECKER,
M.D.,
APPELLEES/
CROSS-APPELLANTS.
95-518
Opinion Delivered: 2-12-96
CONCURRING OPINION
TOM GLAZE, Associate Justice
This case is one of first impression under our child abuse
reporting statutes, but unfortunately, was not presented to this
court in such a way to establish legal precedent under those
statutes. I write only to emphasize certain points not discussed
in the majority opinion.
Our child abuse reporting statutes are found at Ark. Code Ann.
12-12-501--518 (Repl. 1995), and among other reasons, were
enacted to protect the best interest of the child and to prevent
further harm to the child. 12-12-501. Under 12-12-507(b), any
physician, dentist, medical personnel, teacher, day care worker,
inter alios, having "reasonable cause to suspect that a child has
been subjected to child maltreatment ... shall immediately notify
central intake or law enforcement." (Emphasis added.) The statute
places a duty on those who are most likely to observe and examine
the child, and who are in positions of trust of the child's
welfare. Additionally, 12-12-507(c) provides that "[n]o
privilege or contract shall relieve anyone required by the
subchapter to make notification of the requirement of making
notification." Thus, under our statutory scheme, a physician has
an absolute duty to report to authorities when the physician has a
reasonable suspicion that child abuse has occurred, and the
physician cannot claim a doctor-patient privilege in order to avoid
the statute's reporting requirements.
In the present case, Dr. Rheeta Stecker admitted she suspected
Laura's injuries were due to child abuse beginning with Laura's
broken arm; nonetheless, she made a conscious decision not to
report those suspicions. The standard of care is what a physician
in Stecker's position should have reasonably suspected. The
burden was on the estate to show that Stecker breached that
standard of care, and at what point in time, she had an absolute
duty to report her suspicions. While Dr. Epstein testified, in his
opinion, Stecker breached her duty to report on July 22, the jury
never heard this testimony. As the majority opinion holds, we are
reversing because of the exclusion of Epstein's testimony as to the
medical malpractice cause of action. However, the estate did not
properly preserve reversal as to the issue of violation of the
child abuse reporting statutes. Without Epstein's excluded
testimony, there is no evidence to show Stecker breached her duty
under the reporting statutes. This court cannot reverse a trial
court for denying a directed verdict based on evidence never
presented to the trier of fact.
Finally, I note that while Stecker contended on appeal that
her failure to report was not the proximate cause of Laura's death,
nothing in the statute requires that failure to report child abuse
result in the child's death. Under section 12-12-504(b), any
person, official, or institution required to make notification of
suspected child maltreatment who willfully fails to do so shall be
civilly liable for damages proximately caused by that failure.
Because the estate filed its complaint against Stecker for
damages under two different causes of action, medical malpractice
and violation of the child abuse reporting statutes, it was
necessary to show Stecker breached both standards of care. The
estate failed to meet its burden under the reporting statutes. Associate Justice Donald L.
Corbin, 2-12-96 *ADVREP9B*
FIRST COMMERCIAL TRUST COMPANY,
SUBSTITUTE ADMINISTRATOR OF THE
ESTATE OF LAURA ALLISON
FULLBRIGHT, DECEASED,
APPELLANT/
CROSS-APPELLEE,
V.
JOSEPH JOHN RANK, MARY ELLEN
ROBBINS, AND RHEETA STECKER,
M.D.,
APPELLEES/
CROSS-APPELLANTS,
95-518
DISSENTING OPINION.
The majority does no more than substitute its independent
thinking for that of the trial judge on the issue of the
admissibility of Dr. Epstein's proffered expert testimony on the
standard of care for diagnosing child abuse in Hot Springs. In so
doing, the majority fails to apply the abuse-of-discretion standard
by which we are required to review the trial court's ruling in this
matter.
An expert witness's qualifications are a matter lying within
the trial court's discretion, and, absent an abuse of discretion,
will be upheld on appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). We have stated that manifest abuse of discretion means
"`a discretion improvidently exercised, i.e., exercised
thoughtlessly and without due consideration.'" Nazarenko v. CTI
Trucking Co., Inc., 313 Ark. 570, 582, 856 S.W.2d 869, 875 (1993)
(quoting Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229
(1973)). Applying that definition to the facts of the present
case, I cannot agree that the trial court abused its discretion in
excluding Dr. Epstein's testimony.
To sustain its medical-malpractice claim, appellant was
required to prove "[t]he 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[.]" Ark. Code Ann. 16-114-206 (1987) (emphasis added).
Applying this standard, the trial court determined that Dr. Epstein
was not qualified to offer expert testimony on the issue of the
standard of care for diagnosing child abuse in Hot Springs. I find
no abuse of discretion.
As regards the differences in the medical specialties of
Dr. Epstein and Dr. Stecker, Dr. Epstein's testimony and curriculum
vitae confirm that he is a highly-qualified emergency-medicine
physician. Dr. Epstein testified that he is an emergency-medicine
specialist rather than a family practitioner, and does not maintain
an independent office outside the hospital where he practices.
Dr. Epstein conceded on voir dire that the types of medical
problems he deals with, as an emergency-medicine physician, are
different from those of a family practitioner. This statement may
be confirmed by an examination of Dr. Epstein's vitae revealing his
publications on the subjects of brain injury, transfusions, and
spinal cord neoplasms, to name a few. Dr. Epstein stated that it
is not the intention of the hospital where he practices to have the
on-going doctor-patient relationships that a family practitioner
has, or to have parents bring in their child for a well-baby
checkup. Dr. Epstein testified that the daily reality of practice
for emergency-medicine practitioners is to treat people who do not
have ordinary financial access to care and are in the emergency
departments as a last resort. Dr. Stecker testified that the
circumstances under which emergency-room doctors in Hot Springs
usually see their patients differs from the circumstances for a
family physician.
As regards the differences in the localities in which they
practice, testimony was given by Dr. Epstein and Dr. Stecker
regarding the medical facilities and technology in their respective
localities, Panama City, Florida, and Hot Springs. Dr. Epstein
estimated the population of Panama City is 80,000. Dr. Stecker
estimated the population of Hot Springs is 35,000.
On this record, the trial court ruled that Dr. Epstein's
proffered testimony on the standard of care for diagnosing child
abuse in Hot Springs was inadmissible. I do not find that the
trial court's decision was made with a discretion improvidently or
thoughtlessly exercised and without due consideration. Nazarenko,
313 Ark. 570, 856 S.W.2d 869. For these reasons, I respectfully
dissent.
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