Edna Lou Howard, as Administratrix of the Estate of Norman L. Howard, Deceased v. St. Edward Mercy Medical Center and Dr. Bruce Crabtree, Jointly and Severally

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

EDNA LOU HOWARD, as

Administratrix of the Estate of NORMAN L. HOWARD, Deceased

APPELLANT

V.

ST. EDWARD MERCY MEDICAL

CENTER, and DR. BRUCE CRABTREE, Jointly and Severally

APPELLEES

CA 01-798

FEBRUARY 20, 2002

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, FT. SMITH DISTRICT, [NO. CIV98-931]

HONORABLE JOE MICHAEL

FITZHUGH, CIRCUIT JUDGE

AFFIRMED

This is a medical malpractice case. Appellant Edna Lou Howard, administratrix of the estate of her deceased husband Norman Howard, appeals from a directed verdict entered on behalf of appellee St. Edward Mercy Medical Center and a jury verdict entered on behalf of appellee Dr. Bruce Crabtree. Mr. Howard died on the morning of January 22, 1997, allegedly the result of an acute illness brought on by undiagnosed diabetes, and Mrs. Howard filed suit against the hospital and the emergency room physician who participated in Mr. Howard's care. In her appeal, Mrs. Howard alleges that (1) the trial court erred in entering a directed verdict for the hospital at the close of the presentation of all of the evidence based upon a finding that the hospital was not liable for the actions of Dr. Crabtree, and (2) the jury's verdict for Dr. Crabtree is not supported by substantial evidence. We disagree and affirm.

The standards of review on these two issues are distinctly different, and we set them forth prior to addressing the merits of appellant's arguments. As to the hospital, the trial court granted a directed verdict at the close of the evidence. "In reviewing an order granting a motion for directed verdict, this court views the evidence in the light most favorable to the party against whom the verdict was directed .... [and if] any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to grant the motion for directed verdict." Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 297, 948 S.W.2d 388, 394 (1997) (citations omitted).

As to Dr. Crabtree, the case was submitted to the jury for resolution. On appeal challenging a jury verdict, the query is whether the jury verdict is supported by substantial evidence. Substantial evidence is defined as "evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture." Hall v. Grimmett, 318 Ark. 309, 805 S.W.2d 297 (1994). In examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and must be given its highest probative value, taking into account all reasonable inferences deducible from it. Id. It is not the appellate court's province to try issues of fact; the appellate court simply reviews the record for substantial evidence to support the jury's verdict. E.g., City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000); Missouri Pac. Transp. Co. v. Jones, 197 Ark. 79, 122 S.W.2d 613 (1938) (holding that on questions of fact, the finding of the jury is conclusive). The weight and value of witness testimony is a matter within theexclusive province of the jury; the jury is free to believe or disbelieve the testimony of any witness. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). With these standards of review in mind, we examine the evidence presented to the Sebastian County Circuit Court. Mr. Howard was a fifty-two-year-old man and a resident of Fort Smith, Arkansas. Not feeling well, Mr. Howard arrived at the emergency room of St. Edward Mercy Medical Center in Fort Smith on the afternoon of January 21, 1997, at approximately 4:00 p.m. He was accompanied by his eldest daughter Angela, who had driven him to the hospital. A triage nurse took his vital signs at that time and filled in a medical chart, which included a pulse or heart rate of 139. His primary complaints to the nurse were sore throat, fever, and blurred vision.

He was seen by a doctor at approximately 4:20 p.m. Dr. Crabtree, a board-certified emergency-medicine physician who has practiced since 1991, came into the examination room to see Mr. Howard. Mr. Howard primarily complained to Dr. Crabtree of difficulty swallowing and a burning sensation in his chest. It was explained that the previous day, Mr. Howard had presented to the V. A. Hospital in Fayetteville and was to report for studies to address these problems, but he preferred to have those tests run in Fort Smith, which was more convenient. Dr. Crabtree testified that he listened to Mr. Howard's chest and that he was not tachycardic at the time of his examination, in spite of the fact that his heart rate was noted to be elevated to 139 at the time he was triaged by the emergency room nurse. Though this particular examination by stethoscope was not recorded in the medical chart, Mr. Howard's daughter testified that she thought that the doctor did complete such anexamination in her presence. Dr. Crabtree testified that he also examined Mr. Howard's mucous membranes in his throat and mouth, noting in the medical chart that they were pink and moist, which would indicate reasonable hydration. Dr. Crabtree denied that anyone told him of Mr. Howard experiencing frequent urination or excessive thirst; the triage nurse stated that if that complaint were made to her, she would have recorded it in the medical chart. This was a critical piece of information that would have changed the manner of treatment, according to Dr. Crabtree. In contrast, the eldest daughter testified that she had expressed to the doctor that her father had been frequently urinating. The daughter also testified that she had to answer the doctor's questions after the examination began because her father was too weak and sick to answer. After concluding his examination, Dr. Crabtree contacted Dr. Van Asche, a gastroenterologist, and an endoscopy was scheduled for the following morning to examine further Mr. Howard's gastric complaints.

Mr. Howard was discharged from the emergency room at 4:54 p.m. and, due to his instability, he was taken by wheelchair to his car. The nurse assisting the family expressed concern to Dr. Crabtree about Mr. Howard's difficulty ambulating and how this was complicated by his size, but he was discharged as planned. Mr. Howard was driven home to convalesce.

Mrs. Howard reported that after getting home, her husband rested on the couch, but he frequently had to go to the bathroom. As the evening progressed, Mrs. Howard stated that her husband became much more ill. She brought take-out food home for dinner, but Mr. Howard could not eat because his throat was too sore. She thought that he had been drinkinga lot of fluid, but presumed it was to soothe his throat. By 9:00 p.m., Mr. Howard was confused and disoriented and was still urinating frequently, on one occasion urinating on the floor. His confusion was marked by Mr. Howard mistaking his wife for a nurse. As the evening wore on, Mrs. Howard became frightened by her husband's condition, so she called her eldest daughter, asking that her son-in-law come over to assist in getting Mr. Howard back to the hospital emergency room, and they arrived there at 11:30 p.m. Mr. Howard was partially conscious at that time, and he was somewhat combative. The emergency room nurse recorded the family's report of his vomiting for one week, blurred vision, weakness and excessive sleeping. Examination revealed that Mr. Howard was drowsy, confused, and apparently dehydrated, as evidenced by very dry mucous membranes. A laboratory test was ordered, which revealed that Mr. Howard had a very elevated blood sugar of 1,504 milligrams per deciliter (roughly twelve times the norm). Mr. Howard was admitted directly to the intensive care unit. Intravenous fluid and insulin were administered, however, Mr. Howard's condition continued to deteriorate. Though additional tests revealed that during the night his blood sugar levels began to decline, his condition worsened in that his body temperature elevated to 108 degrees, and by 8:15 a.m., he had slipped into a coma. Just after 9:00 a.m., Mr. Howard suffered respiratory and cardiac arrest, and efforts to resuscitate him ensued. Mr. Howard was pronounced dead at 9:35 a.m., January 22, 1997.

Dr. Crabtree learned later of Mr. Howard's return to the emergency room and his death. Dr. Crabtree's care was isolated to his first presentation to the emergency room; hedid not participate in Mr. Howard's care upon his return to the hospital or at any time thereafter.

An autopsy was conducted on Mr. Howard's body, and the immediate cause of death was listed as "diabetes mellitus with acute diagnosis of none [sic] treatment of hyperosmolar coma." In short, Mr. Howard's blood was thick due to dehydration and caused his coma and death. Other underlying conditions were sickle cell trait, bone marrow hypercellularity, a thyroid condition, and chronic gastritis with bacteria associated with ulcers.

At trial, Mrs. Howard presented the testimony of an emergency-room physician who was board certified in family practice, Dr. O'Mara, who testified that Dr. Crabtree breached the standard of care, which resulted in her husband's death. Dr. O'Mara, while not faulting the referral to a gastroenterologist as a reasonable treatment of the later confirmed chronic gastritis, considered Dr. Crabtree's treatment to fall below the standard of care in that Dr. Crabtree did not follow up on Mr. Howard's elevated heart rate. Dr. O'Mara believed that the elevated heart rate was indirectly related to his diabetes because his dehydration required his heart to work harder to maintain cardiac output. Had Dr. Crabtree followed up, the diabetes would have been discovered, treatment for Mr. Howard's diabetes could have been implemented sooner, and it would have been more probable than not that Mr. Howard would have survived the diabetic crisis. Dr. O'Mara did state on cross-examination, however, that Mr. Howard was perhaps "survivable" within a few hours of going into arrest on the morning of January 22.

The defense attacked Dr. O'Mara's opinion on cross-examination. Dr. O'Mara was of the opinion that Mr. Howard had to have been dehydrated upon initial presentation at the emergency room, but the medical records noted that the patient's mucous membranes were pink and moist, directly contradicting that opinion. And, it was emphasized by defense counsel that Dr. O'Mara thought that Mr. Howard could possibly still survive just a few hours prior to "coding," and this would contradict Dr. O'Mara's earlier opinion that Dr. Crabtree effectively took away his last chance at survival.

The defense presented its own expert testimony through Dr. Leibovich, a board-certified emergency-medicine physician and a professor of same at the University of Arkansas for Medical Sciences. Dr. Leibovich testified that Dr. Crabtree met the standard of care for emergency-room physicians in Fort Smith, Arkansas, in his care of Mr. Howard. Dr. Leibovich opined that it is not unusual for a patient presenting to the emergency room to have an elevated heart rate that subsequently returns to a normal rate. Moreover, Dr. Leibovich opined that the referral for an endoscopy the next day was an appropriate response to Mr. Howard's chief complaints. Dr. Leibovich did not find it problematic that even though Dr. Crabtree stated that he listened to Mr. Howard's chest, that fact did not get recorded in the medical chart. Dr. Leibovich stated, though, that had Dr. Crabtree not determined a benign cause for the initial elevated heart rate, then it undoubtedly would have been a violation of the standard of care. Plaintiff's counsel attacked Dr. Leibovich's testimony as speculative because Dr. Leibovich was presuming that Dr. Crabtree was truthful when he said that he listened to Mr. Howard's chest, when the record did not soindicate, and he apparently did not accept the daughter's testimony that she told the doctor about her father's frequent urination.

The defense also presented the testimony of Dr. Fonseca, a professor of medicine and endocrinology at Tulane University and the Tullis Tulane Chair in Diabetes. Dr. Fonseca testified that the most classic symptoms of diabetes are excessive thirst and frequent urination. This is typical because the body is attempting to excrete the excess sugar from the blood, and thus the body is releasing urine and seeking additional fluid to make up for the body's loss. Dr. Fonseca stated that according to the medical records, these classic symptoms were not present upon presentation to Dr. Crabtree, and nothing in the medical records would have alerted Dr. Crabtree to suspect this in diagnosing Mr. Howard's condition. Dr. Fonseca also stated that an elevated pulse rate is not necessarily a symptom of diabetes, and there was no way, without laboratory tests, to know what Mr. Howard's blood sugar was before 5:00 p.m. on January 21. Dr. Fonseca, therefore, stated that Dr. Crabtree treated Mr. Howard appropriately and that even if Mr. Howard had been admitted after seeing Dr. Crabtree, it would not have had any impact on the outcome. Dr. Fonseca stated that the treatment rendered to Mr. Howard when he returned to the emergency room and then was admitted was appropriate treatment for diabetes and that his blood sugar was decreasing prior to his death. Dr. Fonseca opined that the elevated temperature was not related to his diabetes. Plaintiff's counsel attacked this opinion as calling for possibilities and not medical certainties regarding whether Dr. Crabtree's care fell below the standard of care and whether that failure was the proximate cause of his death.

As to the relationship between the hospital and Dr. Crabtree, a substantial amount of evidence was presented that Dr. Crabtree was an independent contractor who was provided to the hospital by Emergency Medicine Associates, PLLC. For income tax purposes, Dr. Crabtree was not provided any benefits nor paid wages by the hospital. He was not covered under the hospital's workers' compensation insurance nor was he provided health insurance. Dr. Crabtree elaborated on this issue by testifying that the hospital did not have any control over how many hours any particular physician in the corporation worked or how he treated any patient in the emergency room. And, Dr. Crabtree stated that he brought his own personal instruments to use, such as a stethoscope, reflex hammer, and the like, that were carried in his lab coat. The documentation between the PLLC and the hospital explicitly stated that the hospital agreed not to exercise control over a physician's duties in the hospital. Dr. Crabtree stated that the hospital did not in fact exert any influence over his treatment of patients. Appellant argued that even if Dr. Crabtree was not an employee, he was an agent for the hospital and that it was responsible for his acts. Appellant pointed to the fact that Dr. Crabtree worked only at this hospital, and the hospital provided all the equipment, forms, and billing.

At the conclusion of the presentation of the evidence, both defendants moved for a directed verdict. The trial court granted the directed verdict as to the hospital, disagreeing with appellant that there was any dispute about the control or right to control the actions of the doctor by the hospital. Consequently, appellant failed in her attempt to establish respondeat superior liability on the hospital for the conduct of Dr. Crabtree. The trial courtdenied the motion as to Dr. Crabtree, permitting the jury to find whether Dr. Crabtree violated the standard of care and, if so, whether that violation was the proximate cause of Mr. Howard's death. The jury rendered a ten-to-two verdict in favor of Dr. Crabtree. After the judgment was filed of record, appellant timely filed a notice of appeal to our court.

We must first make clear that we are not deciding whether the case should have gone to the jury because that issue was not preserved for review in accordance with the Arkansas Rules of Civil Procedure. As has long been a rule in Arkansas, a party in a jury trial seeking to challenge the sufficiency of the evidence must move for a directed verdict at the appropriate times in order to preserve the issue for appeal. See Ark. R. Civ. P. 50. Nor may a party move for a judgment notwithstanding the verdict absent appropriate motions for directed verdict; a motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of the evidence. Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); see also Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987); Benton v. Barnett, 53 Ark. App. 146, 920 S.W.2d 30 (1996). In the present appeal, appellant, as plaintiff, did not move for a directed verdict; only the defendants did so. Our discussion in Benton v. Barnett, supra, is instructive:

Appellant, however, failed to challenge the sufficiency of the evidence by motion for a directed verdict, as is required under Rule 50(e) of the Rules of Civil Procedure. Instead, he raised the issue by motion for a new trial under Rule 59. Although Rule 59 specifically states that a motion for a new trial may be granted where the verdict is clearly contrary to the preponderance of the evidence, Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), such a motion, however, does not test the sufficiency of the evidence to go to the jury. Id. See also Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). A party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for a new trial. Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). Therefore, appellant's challenge to the sufficiency of the evidence must fail. We recognize that this distinction is a fine one indeed, but it is one that has been fashioned by the supreme court.

Id. at 148-49.

Appellant did not move for a new trial pursuant to Ark. R. Civ. P. 59 either, but she asserts that she was not required to do so. We agree with her to the extent that Rule 59 provides in subsection (f) that a party is not required to move for new trial to preserve for appeal an error that could be the basis for granting a new trial and that one of the grounds in Rule 59 is that the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law, Ark. R. Civ. P. 59(a)(6). This is what appellant urges on appeal, that the jury verdict for Dr. Crabtree is clearly against the preponderance of the evidence and that she was not required to move for a new trial on this basis to the trial court in order to have the issue addressed herein. We disagree.

Our rules do not provide for plain error; any error argued on appeal must have first been directed to the trial court's attention in some appropriate manner, so that the trial court would have had an opportunity to address it. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). We adhere to the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. See id; see also Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993). Subsection (f) of Rule 59 means that if a party has already properly preserved her allegation of error concerning any of the grounds listed in Rule 59(a), then theparty is not required to move for a new trial in order to argue those grounds on appeal. See Stacks v. Jones, supra. Absent any apprisal to the trial court of this argument prior to appeal, we are prevented from addressing this issue for the first time on appeal.

Nevertheless, had we been able to reach the merits of appellant's argument, we would have affirmed. There were competing expert opinions as to whether Dr. Crabtree violated the standard of care, and if he did, whether that negligence was the proximate cause of Mr. Howard's death. Because we defer to the jury as to findings of fact, and because there was substantial evidence to support its findings, we would affirm. See Bullington v. Palangio, 345 Ark. 320, 45 S.W.3d 834 (2001). Indeed, it is a massive task for a party bearing the burden of proof of negligence and proximate cause to set aside a jury verdict rendered on behalf of a defending party. See Morton v. American Medical Int'l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).1 Appellant's argument that Dr. Leibovich's opinion was speculation is of no moment, as the defense was not required to bring any proof at all; it was appellant's burden to prove negligence and causation and the jury's province to weigh thatproof. The jury's verdict is supported by substantial evidence, even more so because there was defense expert testimony in direct contradiction to the plaintiff's upon which the jury was entitled to rely.

The resolution of the appeal as to Dr. Crabtree would have then mooted the appeal as concerns the hospital, inasmuch as the hospital's liability was dependent upon Dr. Crabtree's liability.

We affirm.

Pittman and Neal, JJ., agree.

1 The supreme court quoted the following language from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir.1958), with approval in the Morton opinion:

"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." The supreme court concluded that the common law rule would then mean that a defendant is entitled to have the jury pass upon the credibility of the plaintiff's evidence even if he offered no evidence himself.