Suzanne Neumeier Washburn v. Dr. Wayne L. Bruffett and Dr. David Clause

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

SUZANNE NEUMEIER WASHBURN

APPELLANT

V.

DR. WAYNE L. BRUFFETT and DR. DAVID CLAUSE

APPELLEES

CA01-00553

FEBRUARY 27, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR1998-2385]

HONORABLE WILLARD PROCTOR JR, CIRCUIT JUDGE

REVERSED AND REMANDED

This appeal arises from a Pulaski County Circuit Court's granting of summary judgment in favor of two resident doctors on an action for medical injuries based upon lack of informed consent. We find that material questions of fact exist that preclude the entry of summary judgment and accordingly we reverse and remand.

Appellant, Suzanne Neumeier Washburn, was hospitalized on or about March 17, 1996, at the University of Arkansas Medical Center for Medical Science (UAMS), Little Rock, Arkansas, for orthopedic surgery to repair a crush injury to her right hand. She had originally been seen that same day at the Emergency Room of White River Medical Center in Batesville, Arkansas. An orthopedic surgeon was available in Batesville to perform the surgery; however, appellant sought a recommendation of surgeons from one of the appellees, Dr. Clause, who was a personal friend and was also an orthopedic resident in training at UAMS. He advised appellant to come to UAMS where Dr. Gellman was on call that night. Both appellees, Drs. Clause and Bruffett, were training under Dr. Gellman in their orthopedic residency, and Dr. Clause expressed his opinion that Dr.Gellman was an expert in hand surgery and the very best in the State of Arkansas.

Based upon Dr. Clause's recommendation, appellant traveled to UAMS for the surgery and signed the hospital consent form for the surgery to be performed. She asserted that prior to signing the consent forms, that both appellees assured her that Dr. Gellman would come to the hospital and personally perform the surgery that evening. Dr. Bruffett was the resident on duty, not Dr. Clause, and appellant understood that anything that Dr. Bruffett, as an orthopedic resident, might do in the surgery would be under Dr. Gellman's supervision in the operating room as set out in the consent form. Furthermore, Dr. Bruffett had received a phone call after which he informed appellant that he would take appellant up to surgery and begin irrigating and debriding her wound to prepare her prior to Dr. Gellman's arrival.

Dr. Gellman never came to the hospital that evening. Instead, Dr. Gellman supervised the surgery by telephone. Appellant learned that fact several days after the surgery. Subsequent surgery was performed by Dr. Gellman to address the injury to appellant's hand. At the time the summary judgment motion was filed, appellant was under the care of Dr. Moore who continued to treat appellant for the injury. Appellant provided an affidavit setting forth the facts resulting in the obtaining of her consent. Dr. Moore provided an affidavit that advised that the presented facts surrounding the obtaining of the appellant's consent deviated from the standard of care in the community and as such did not provide adequate informed consent. Dr. Moore also provided a second affidavit concerning the second surgery which stated as follows:

As a result of the failure to successfully achieve successful reduction and fixation, the patient was re-operated on or about March 28, 1996, by Dr. Harris Gellman, an orthopedic surgeon specializing in hand surgery. Dr. Gellman is a well recognized and well qualified expert in this field, and he attempted a revision open reduction and internal fixation of the right middle finger of the proximal phalanx fracture. Dr. Gellman was successful in this regard, and I am of the opinion that while it cannot be stated with absolute certainty, the probabilities are that had Dr. Gellman done the original surgery of March 17, 1996, whichwas attempted by the residents, Drs. Bruffett and Clause, he more likely than not would have been successful in achieving a successful reduction and fixation of the long finger proximal phalanx fracture, which would have obviated the necessity of the subsequent revision surgery, which he accomplished on March 28, 1996.

Likewise, while I cannot say with absolute certainty, I can say that more likely than not, that in all probability, had the surgery of March 17, 1996, been performed by a surgeon specifically trained in hand surgery, such as Dr. Harris Gellman, the risk of complications would likely have been reduced, and the chances of a successful outcome would have been increased and her prognosis improved. As it is, she has a permanent injury to the finger in question, which might have been otherwise avoided, or less severe, for the reasons stated.

In reviewing a grant of summary judgment, the reviewing court only decides if granting of summary judgment was appropriate based on whether evidence presented in support of the motion left a material question of fact unanswered. Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). The object of summary judgment is not to try the factual issues but to determine if there are any factual issues to be tried, and, if there is any doubt whatsoever, the motion should be denied. See Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986); Muddiman v. Wall, 33 Ark. App. 175, 803 S.W.2d 945 (1991).

If the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, summary judgment in favor of the moving party shall be entered forthwith. See Ark. R. Civ. P. 56(c). see, e.g., Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001); Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

In this case, the motions, briefs, and supporting affidavits show that genuine questions of material fact remain unanswered that preclude the entry of summary judgment. Dr. Moore's affidavit and the appellant's affidavit present an issue of fact regarding informed consent. Dr. Moore's affidavit confirms that if the facts are determined to be as set forth by appellant, then noadequate informed consent was obtained.

Appellees accept that issues of material fact exist regarding informed consent. However, they argue that the negligence regarding the consent cannot be proven to have proximately caused appellant's harm. They assert that appellant "cannot maintain an action for medical injuries based upon lack of informed consent because the undisputed facts demonstrate that no damages suffered by appellant were proximately caused by a deviation from the standard of care." We disagree that facts regarding damages and causation are undisputed.

Adequate disclosure of risks of a procedure is measured by the applicable standard of care, i.e., the customary practice of physicians in the community in which the medical care provider practices or in a similar community. Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 436 (1989). The plaintiff's burden of proving the applicable standard of care and the defendant's failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge. Reagan v. City of Piggot, 305 Ark. 77, 805 S.W.2d 636 (1991); Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989). As discussed earlier in this opinion, Dr. Moore's affidavit addresses that requirement.

Appellant's affidavits similarly address the issue of causation. "Plaintiff's proof of causation must be more than speculation and conjecture. It must be such that reasonable persons might conclude that it was more probable than not that an event was caused by the defendant." Arthur v. Zearley, 337 Ark. 125, 135, 992 S.W.2d 67, 73 (1999) (citations omitted). Appellant's affidavit states that she would not have consented to the surgery had she known that Dr. Gellman would not be physically in the operating room for the performance of her surgery. Dr. Moore's affidavit provides his opinion that if Dr. Gellman or someone with comparable expertise had performed the surgery that he would more likely than not have been successful in repairing theinjury, but that as it is, appellant has a permanent injury.

This is not a case where the plaintiff's expert testified that he could not state an opinion within a reasonable degree of medical certainty. See Ford v. St. Paul Fire & Marine Ins., 339 Ark. 434, 5 S.W.3d 460 (1999) (plaintiff's expert testified that he could not state an opinion within a reasonable degree of medical certainty that patient would have lived had doctors operated sooner). To the contrary, he specifically stated his opinion that if Dr. Gellman had performed the surgery, the surgery would have been successful. Consequently, appellant would have suffered no harm.

The burden of proof was on the appellees to prove that no genuine issue of fact existed and all proof submitted must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993). Appellees failed to meet this burden rendering summary judgment inappropriate. Accordingly, we reverse and remand.

Robbins and Neal, JJ., agree.