Sheila Fowler v. Dan Springer, M.D. and Charles Stinnett, M.D.

ca02-593

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

SHEILA FOWLER

APPELLANTS

v.

DAN SPRINGER, M.D. and

CHARLES STINNETT, M.D.

APPELLEES

CA02-593

APRIL 30, 2003

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[CIV-99-766-2]

HONORABLE DAVID S. CLINGER, CIRCUIT JUDGE

AFFIRMED

Appellant, Sheila Fowler, appeals a decision by the Benton County Circuit Court denying her motion to allow the deposition testimony of an expert and granting appellees' motion for summary judgment. On appeal, she argues that the trial court erred in denying her motion to allow deposition testimony causing her complaint to be dismissed with prejudice. We disagree and affirm.

On November 3, 1999, Sheila Fowler filed a complaint against Dr. Dan Springer and Dr. Charles Stinnett. In that complaint, she alleged that during and immediately following the birth of her second child she was treated by both doctors, and the treatment by both doctors fell below the standard of care. As a result, she was forced to undergo a hysterectomy. Following an answer from both appellees, appellees filed a motion for summary judgment on June 29, 2001. On January 2002, Ms. Fowler filed a motion to allow deposition testimony at trial.

A hearing was held on the motion, and the trial judge denied Ms. Fowler's motion to allow deposition testimony. In doing so, the trial judge stated, "The motion to allow the deposition

testimony at trial is denied based upon the failure in the deposition to establish Dr. Reiss's familiarity with the standard of care in Siloam Springs or a similar locale." Furthermore, the trial judge granted appellees' motion for summary judgment after Ms. Fowler's counsel revealed that they would be unable to have an expert at trial. This appeal followed.

Our standard of review for summary judgment cases is well-established. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002). Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Id. (citing City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001)). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. (citing BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001)).

Arkansas Code Annotated Section 16-114-206(a) (1987) states that in any action for medical injury, the plaintiff shall have the burden of proving:

(1) 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;

(2) That the medical care provider failed to act in accordance with that standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

In Grice v. Atkinson, 308 Ark. 637, 640-41, 826 S.W.2d 810, 812-13 (1992), our supreme court explained that:

We have 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 similar practice in similar localities, giving consideration to geographical location, size and characterof 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. The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule. (Citations omitted.)

Later, in White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978), the similarity rule was examined from a slightly different angle. There, the plaintiff's medical expert, an orthopedic surgeon, was challenged on the ground that he was not familiar with the practice of medicine by a general practitioner in Malvern, Arkansas, and hence, not a competent witness. Citing Gambill v. Stroud, supra, we said that 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 to testify 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."

In the present case, Dr. Reiss's testified that he was board certified in obstetrics and gynecology and practicing in Boca Raton, Florida. He stated that he sees patients three days a week; however, he has not done surgery or delivered babies since 1983. In the mid 1990s, he began doing medical reviews of cases, and since that time, he has done approximately one hundred reviews. In regard to the specifics of this case, Dr. Reiss did not provide any testimony that he was familiar with the standard of care in Northwest Arkansas, nor did he compare the locale of Dr. Springer's and Dr. Stinnett's practices to that of his own. Further, Dr. Reiss did not provide any detail regarding his own practice in that he did not testify as to the size or character of the facility in which he practices in Boca Raton. As was the case in Grice, supra, there was no attempt to compare the similarity of medical facilities, practices, and advantages available in Northwest Arkansas with those existing in comparable localities with which Dr. Reiss was familiar.

Moreover, Dr. Reiss concluded that "had [Ms. Fowler] not retained placental fragments, I do not believe this patient would have had to undergo a hysterectomy." However, except for his personal opinion, there was no support for this conclusion throughout his deposition testimony. In fact, he admitted that there was no evidence in the medical records to indicate that Ms. Fowler was experiencing any abnormalities before leaving the hospital after delivery and that he based his opinion that Dr. Springer violated the standard of care on the fact that he questioned the truthfulness of the medical reports. The following dialogue took place near the conclusion of the deposition:

Okay. But I guess what I'm getting at, if it's not in the records, then why would it be a violation of [the] standard of care on the part of Dr. Springer that there was retained material?

Because I question whether those persons who checked this patient, and I question this, examined the patient carefully enough and should have noted something that was not quite perfect and normal.

Okay. And you question that?

I question that, sir.

Why do you question it?

Because of what subsequently happened.

You just don't believe what's in the records.

I just don't believe it. I just am-we went over this point before.

The proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. See Eady v. Lansford, 351 Ark. 249, 91 S.W.3d 63 (2002). In this case, Dr. Reiss failed to offer any proof comparing the locality of Northwest Arkansas and his own locality; thus, Ms. Fowler failed to meet her burden of proof according to subsection (a)(1) of Ark. Code Ann. § 16-114-206. We hold that the trial court did not err in granting appellees's motion for summary judgment, and the trial court's decision is affirmed. See Robson v. Tinnin, 322Ark. 605, 911 S.W.2d 246 (1995) (holding that when expert testimony is required for proof of a plaintiff's claim for medical malpractice, and the defendant demonstrates the plaintiff's failure to produce the requisite expert testimony, then the defendant has demonstrated that no genuine issues of material fact exist for presentation to a jury and is therefore entitled to summary judgment as a matter of law).

Affirmed.

Hart and Griffen, JJ., agree.