Skaggs v. Johnson

Mary SKAGGS and James Skaggs v. Philip
JOHNSON, M.D., and Richard Nix, M.D.,
Individuals, and Little Rock Orthopedic &
Sports Medical Center

95-982                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Appeal & error -- summary judgment -- standard of review. -- 
     When reviewing summary judgment, the appellate court need only 
     decide if the granting of summary judgment was appropriate   
     based on whether the evidentiary items presented by the moving 
     party in support of the motion left a material question of
     fact unanswered.

2.   Judgment -- summary judgment -- burden of sustaining motion on
     moving party -- proof viewed in light most favorable to party
     resisting motion. -- The burden of sustaining a motion
     for summary judgment is always the responsibility of the
     moving party; all proof submitted must be viewed in a light
     most favorable to the party resisting the motion, and any
     doubts and inferences must be resolved against the moving
     party.

3.   Judgment -- summary judgment -- when proper. -- Summary
     judgment is proper when a claiming party fails to show that
     there is a genuine issue as to a material fact and when the
     moving party is entitled to summary judgment as a matter of
     law. 

4.   Negligence -- medical malpractice -- elements necessary to
     sustain claim. -- To sustain a claim for medical malpractice
     a plaintiff must prove, among other elements, the applicable
     standard of care and the defendant's breach of it; the
     standard of care applicable to a case is defined by Ark. Code
     Ann.  16-114-206(a)(1) (1987) as "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 practices or in a similar locality." 

5.   Negligence -- when expert testimony is required. -- 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.  

6.   Negligence -- medical malpractice -- doctors made conscious
     medical decision to leave foreign object in appellant's leg. -
     - expert testimony required. -- The supreme court determined
     that appellee doctors made a conscious medical decision to
     leave a piece of penrose-drain tube in appellant's leg; thus,
     the present case was distinguishable from typical foreign-
     object cases that involve the inadvertent leaving of objects
     in a patient's body and do not involve a physician's judgment;
     the supreme court therefore concluded that this case presented
     an issue outside the jury's common knowledge that required
     expert testimony.

7.   Negligence -- medical malpractice -- appellees met burden of
     proving prima facie case for summary judgment -- appellants
     failed to show disputed issue of fact existed -- order of
     dismissal affirmed. -- The supreme court agreed with the trial
     court's finding that the opinion expressed in a deposition by
     a physician who stated that the piece of penrose-drain tube
     left in appellant's leg probably caused her infection and
     should have been removed was general and based on his
     experience as an infectious-disease expert and did not address
     a surgical decision by an orthopedist; the physician did not
     offer testimony that the conduct of appellee doctors fell
     below the standard of care for orthopedic surgeons in Little
     Rock; to the contrary, the physician stated in his deposition
     that it was a surgical decision whether to remove the piece of
     tubing; the supreme court held that appellees met their burden
     of proving a prima facie case for summary judgment by showing
     that appellants had no expert to testify as to the breach of
     the applicable standard of care; the burden shifted to
     appellants to show that a disputed issue of fact existed, and
     their failure to do so excused the need for appellee
     physicians to show a lack of proof on the element of proximate
     causation; accordingly, the appellate court affirmed the trial
     court's order of dismissal.


     Appeal from Pulaski Circuit Court, Sixth Division; David
Bogard, Judge; affirmed.
     Satterfield Law Firm, by: G. Randolph Satterfield and Diana
Hamilton Turner, for appellants.
     Friday, Eldredge & Clark, by: Guy Alton Wade and Clifford W.
Plunkett, for appellees.

     Bradley D. Jesson, Chief Justice. 02/12/96 *ADVREP1*







MARY SKAGGS and JAMES SKAGGS,
                    APPELLANTS,

V.

PHILIP JOHNSON, M.D., and
RICHARD NIX, M.D., Individuals
and LITTLE ROCK ORTHOPEDIC &
SPORTS MEDICAL CENTER,
                    APPELLEES,





95-982


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, SIXTH DIVISION
(94-2327)


HONORABLE DAVID BOGARD
CIRCUIT JUDGE




AFFIRMED.

                Bradley D. Jesson, Chief Justice




     This is a medical malpractice case.  Appellants Mary and James
Skaggs appeal from a trial court's order granting summary judgment
in favor of appellees, Drs. Philip Johnson and Richard Nix and the
Little Rock Orthopedic & Sports Medical Clinic.  On appeal, the
Skaggses argue that the trial court erred in granting summary
judgment and in ruling that expert testimony was necessary to meet
their burden of proof.  We affirm.
     Mary Skaggs was in an automobile accident and suffered a
compound fracture of her right leg on September 21, 1992. 
Approximately one inch of bone was exposed, and the wound was
extremely dirty from the accident.  Dr. Philip Johnson, an
orthopedic surgeon at Little Rock Orthopedic & Sports Medical
Clinic ("the Clinic"), performed surgery on Mary's leg to repair
the fracture.  A penrose drain tube was placed in her leg to drain
any infectious materials from the wound.  Three days after the
surgery, appellee Dr. Richard Nix, another orthopedic surgeon at
the Clinic, was making rounds and pulled the penrose drain tube out
of Mary's leg.  He experienced difficulty in removing the drain and
believed that a portion of it could have been left inside.  Both
surgeons decided to leave the piece of tube inside Mary's leg, as
they believed that irrigating and probing the wound further could
cause greater potential for infection.  Mary was discharged.
     Dr. Johnson continued to treat Mary during subsequent visits. 
On December 22, 1992, early union of the bones in her leg became
apparent.  One month later, redness and swelling were noted, and
Mary was treated with oral antibiotics.  On March 15, 1993, Mary
underwent surgery, during which a five millimeter piece of penrose
drain tube was removed from her leg.  Dr. John Schultz, a lung and
infectious disease specialist, was consulted to administer
antibiotics. 
     On March 7, 1994, Mary Skaggs and her husband, John Skaggs,
filed a complaint against Drs. Johnson and Nix and the Clinic,
alleging medical malpractice.  They claimed that the doctrine of
res ipsa loquitur applied on the basis that the portion of the
penrose drain tube left in Mary's leg was a foreign object within
the exclusive control of the defendants.  The Skaggses claimed that
Mary suffered osteomyelitis, an infection of the bone.        
     The physicians and the Clinic filed a motion for summary
judgment on April 28, 1995.  Attached to the motion along with
pleadings and medical records were the affidavits of Drs. Johnson,
Nix, and Michael Weber, an expert orthopedic surgeon, all of whom
refuted the Skaggses' allegations of negligence and proximate
cause.  Particularly, Dr. Weber averred that he was aware of the
degree of skill and learning ordinarily possessed and used by
members in the medical profession in good standing engaged in the
practice of orthopedic surgery in Little Rock.  Based on his review
of the case, it was Dr. Weber's opinion that Drs. Johnson and Nix
used and applied their best judgment with reasonable care.  Dr.
Weber found no evidence of negligence or proximate causation.  
     In response, the Skaggses maintained that no expert testimony
was necessary.  The Skaggses also pointed to the deposition of Dr.
Schultz, in which he averred that the piece of penrose drain left
in Mary's leg probably caused her infection and should have been
removed.  Following a hearing, the trial court granted the
appellees' motion for summary judgment.  In making its ruling, the
trial court acknowledged Dr. Schultz's opinion; however, it
concluded that, while his opinion was general and based on his
opinion as an infectious disease expert, it did not address the
surgical decision by an orthopedist.  The trial court entered an
order dismissing the case, from which the Skaggses now appeal.   
     Our standards for summary judgment review can be summarized as
follows: 
    In these cases, we need only decide if the granting of 
    summary judgment was appropriate based on whether the 
    evidentiary items presented by the moving party in 
    support of the motion left a material question of fact 
    unanswered.  Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991).  The burden of sustaining a motion for 
    summary judgment is always the responsibility of the 
    moving party.  Cordes v. Outdoor Living Center, Inc., 
    301 Ark. 26, 781 S.W.2d 31 (1989).  All proof submitted must 
    be viewed in a light most favorable to the party 
    resisting the motion, and any doubts and inferences must 
    be resolved against the moving party.  Lovell v. St. Paul 
    Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 
    (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 
    835 S.W.2d 284 (1992); Reagan v. City of Piggott, 
    305 Ark. 77, 805 S.W.2d 636 (1991).  Our rule states, and 
    we have acknowledged, that summary judgment is proper 
    when a claiming party fails to show that there is a 
    genuine issue as to a material fact and when the moving 
    party is entitled to summary judgment as a matter of law. 
    Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 
    297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex 
    Corp. v. Catrett, 477 U.S. 317 (1986). 
 
Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48
(1995)(other citations omitted).  We have recently reviewed the
elements necessary to sustain a claim for medical malpractice in
Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995):  
     [T]o sustain a claim for medical malpractice a plaintiff
     must prove, among other elements, the applicable standard
     of care and the defendant's breach thereof.  The standard
     of care applicable to a case is defined by statute as
     "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
     practices or in a similar locality." Ark. Code Ann. 
     16-114-206(a)(1) (1987).
 
322 Ark. at 611, 911 S.W.2d  at 249.
     On appeal, the Skaggses continue to assert that no expert
testimony was required in this case, as the asserted negligence was
within the comprehension of the jury, who could infer that the
appellees' acts or omissions constituted proximate cause of Mary's
damages.  They contend that Dr. Schultz's deposition, in which he
averred that the piece of penrose drain left in Mary's leg probably
caused her infection and should have been removed, presented a fact
question that was sufficient to survive a motion for summary
judgment.  The guidelines for determining whether expert testimony
is required in a medical malpractice case are as follows:
     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.  

Robson v. Tinnin, 322 Ark. at 610-611, 911 S.W.2d. at 249; Prater
v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).  
     The Skaggses further maintain that the Arkansas Court of
Appeals's decision in McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (Ark. App. 1980), is controlling.  We disagree.  In that case,
plaintiffs McClain sued Dr. Giles for medical malpractice, alleging
that the surgeon had improperly used a knife during Mrs. McClain's
disc surgery, causing it to break.  Dr. Giles made a medical
decision to leave the tip in Mrs. McClain's back rather than risk
nerve damage by trying to remove it.  A jury trial was waived, and
the trial judge ruled that Dr. Giles was not negligent.  The
McClains appealed on the ground that the decision was clearly
against the preponderance of the evidence, and the Court of Appeals
affirmed.  In so holding, that court neither was presented with nor
addressed the issue of whether the case was a "foreign object" case
excepting the McClains from the expert testimony requirement.  
     In this case, Drs. Johnson and Nix made a conscious, medical
decision to leave the piece of penrose drain tube in Mary's leg. 
As such, this case is distinguishable from a typical foreign object
case, as those cases involve the inadvertent leaving of objects in
a patient's body, and do not involve a physician's judgment.  See,
e.g., Lanier v. Trammel, 207 Ark. 372, 180 S.W.2d 818
(1944)(matters of common knowledge include a surgeon's failure to
sterilize his instruments prior to operating or to remove a sponge
before closing an incision).  Therefore, we conclude that this case
presented an issue outside the jury's common knowledge that
required expert testimony. See, e.g., Robson v. Tinnin, supra,
(matters relating to the changing of dental implants and treatment
of fractured teeth were not matters of common knowledge).  Our
position is supported by caselaw in other jurisdictions. See, e.g., 
Wagner v. Deborah Heart & Lung Center, 588 A.2d 860 (N.J. Super.
1991)(dismissal proper where plaintiff failed to present expert
testimony that a cardiothoracic surgeon deviated from the
appropriate standard of care where surgeon made a medical decision
to leave needle fragment in patient's sternum rather than interrupt
the closure procedure); Cebula v. Benoit, 652 S.W.2d 304 (Mo. App.
1983)(directed verdict proper where plaintiff failed to present
required expert testimony that thoracic surgeon who made a medical
decision to leave needle fragment in patient's chest acted
inconsistently with general medical practice); Williams v. Dameron,
246 S.E.2d 586 (N.C. App. 1978)(directed verdict proper where
plaintiff failed to prove negligence or causation by expert
testimony or otherwise where surgeon exercised medical judgment in
knowingly leaving a scalpel tip in plaintiff's back); Johns Hopkins
Hospital v. Genda, 258 A.2d 595 (Md. 1969)(jury verdict reversed
where plaintiffs failed to present evidence that surgeons deviated
from the applicable standard of care where surgeons made medical
decision to leave a broken needle tip in body of plaintiffs' minor
child).
     We agree with the trial court's finding that Dr. Schultz's
opinion was general and based on his experience as an infectious
disease expert, and did not address a surgical decision by an
orthopedist.  Dr. Schultz did not offer testimony that the conduct
of Drs. Johnson and Nix fell below the standard of care for
orthopedic surgeons in Little Rock.  To the contrary, Dr. Schultz
stated in his deposition that it was a surgical decision whether
Dr. Nix should have gone in and tried to remove the piece of
tubing.  As in Robson v. Tinnin, supra, the appellees met their
burden of proving a prima facie case for summary judgment by
showing that the Skaggses had no expert to testify as to the breach
of the applicable standard of care.  The burden shifted to the
Skaggses to show that a disputed issue of fact existed, and their
failure to do so excused the need for the physicians to show a lack
of proof on the element of proximate causation. Id. at 612. 
Accordingly, we must affirm the trial court's order of dismissal.
     Affirmed.
     Brown, J., not participating.