Mary Jones v. Professional Counseling Associates et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MARY JONES

APPELLANT

V.

PROFESSIONAL COUNSELING ASSOCIATES; RICHART FLANIGIN, M.D.; RUTH CZIRR, Ph.D.; AND JENNIFER RAULS, LMSW; ALL JOINTLY AND SEVERALLY

APPELLEES

CA03-776

February 25, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV2001-4370]

HON. BARRY A. SIMS,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

On May 4, 2001, appellant Mary Jones filed a complaint in the Pulaski County Circuit Court against Professional Counseling Associates (hereafter, "PCA"), Richard Flanigan, M.D., Ruth Czirr, Ph.D., and Jennifer Rauls, LMSW, alleging medical malpractice, defamation, and fraud and asserting her entitlement to damages based on the doctrine of res ipsa loquitur. Appellees filed a motion for summary judgment, and on March 26, 2003, the trial court granted appellees' motion. Acting pro se, appellant filed this appeal. Her points on appeal are listed as "[i]n a medical malpractice case there should always be an expert witness" and "[a]n attorney should always communicate important issues with client." Because appellant has essentially failed to make any argument and for other reasons discussed herein, we affirm.

Appellant sought treatment from PCA for stress following a knee injury she sustained at work. Appellees diagnosed depression and treated appellant from August 1998 through February 2001. In her complaint, appellant contended that appellees released her medical and psychiatric records to her employer Minnesota Mining & Manufacturing Company (hereafter, "3M") without her consent. Specifically, she asserts that her signature on an authorization release was forged by someone at PCA. The records contained what appellant deemed as false references that she had reported a history of alcoholism and hallucinations, which she contends ultimately resulted in her "termination" at 3M.1

An authorization release dated September 21, 1999, was purportedly signed by appellant. That release authorized PCA to send appellant's medical records to Laura Moody, R.N., at 3M for use in a disability determination. Appellant contends that appellee Rauls inserted Moody's name on the form and then forged her signature on the document. Appellant does not contest the fact that, thereafter, she signed an authorization form on September 12, 2000, with instructions that her medical records be sent to 3M's attorney for the purpose of deposing two of PCA's doctors, whom she had named as expert witnesses in a racial discrimination lawsuit against 3M. On the section of the form entitled "I authorize you to release this SPECIFIC information:," appellant checked "no" beside entries for the entire clinical record of evaluation and treatment at PCA, including notes describing each contact or session; for the two parties named here to freely discuss ongoing-treatment services to this person; attendance record and duration of program involvement; diagnosis; medications given and medical evaluation and/or treatment; and psychological testing/evaluation reports and recommendations. In the space below those entries entitled "other," appellant wrote that her attorney had her complete files and that he had her permission to forward them to 3M. Under the section entitled "The PURPOSE of this disclosure of information is:," appellant checked the box captioned "for use in a court case or legal representation." Although the section instructed appellant to check only one choice, appellant inserted into the "other" space, "I'm signing this document under protest."

Appellant contends that she was told by appellee Czirr that she had to sign the September 12 authorization form. In an internal memorandum dated September 7, 2000, Czirr acknowledged that she was told by appellant that she did not want her medical records released and that "[she] explained all-or-nothing nature of privilege [to appellant]." Czirr wrote that appellant had given her permission to contact her attorney, which she did. Although a conference was scheduled to review and discuss appellant's chart with both appellant and her attorney, the record does not contain any further reference to the conference. Instead, the record thereafter reflects that appellant signed the authorization to release her medical records. On March 26, 2003, the trial court entered its order granting appellees' motion for summary judgment for the reasons stated in appellees' motion and supporting brief. In the brief, appellees argued that appellant executed valid, enforceable authorizations to release her medical records. Alternatively, appellees argued that appellant could show no causal link between appellees' alleged actions and her alleged damages.

The reviewing 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. Palmer v. Council on Economic Education, 344 Ark. 461, 40 S.W.3d 784 (2001). 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). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Island v. Buena Vista Resort, 352 Ark. 548, 103 S.W.3d 671 (2003). 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).

In appellant's one-half page "argument" section of her brief on appeal, she states that it is impossible to prevail in a medical malpractice action without the testimony of a medical expert. Appellant has not made an argument, but rather has made an inaccurate statement. 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. Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (citing Robson v. Tinnin, 322 Ark. 605, 610-11, 911 S.W.2d 246, 249 (1995)). In addition, appellant states that she was not notified of the hearing on appellees' motion for summary judgment and that she would have wanted to be present. To the extent that appellant is complaining about the legal services rendered by her attorney, her arguments are not preserved for appeal. An argument not raised below will not be considered for the first time on appeal. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002). Moreover, appellant has not made any argument, much less a convincing one, with regard to these two points and has not cited a single case to support her assertions. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).

Finally, appellant asserts that her signature was forged on the September 21, 1999 authorization form. She states that falsifying medical records is both unethical and criminal. Appellant contends that appellees' discussing her with others (presumably, 3M) without her knowledge was a breach of confidentiality. Again, appellant has not cited any authority or made any convincing argument in regard to these bare assertions. See id.

In any event, in its order of dismissal with prejudice, the trial court relied on the "reasons" set forth in appellees' brief in support of its motion for summary judgment. It is not clear on which of the independent, alternative bases the court granted appellees' motion. To the extent that appellant challenges one of those bases on appeal, appellant does not challenge the trial court's alternative basis as well. In other words, appellant is not assigning any error to the trial court's alternative basis. Because appellant has failed to attack both bases on appeal, we do not address the merits of either. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274 (1989); Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). Accordingly, the trial court's decision to grant appellees' motion for summary judgment is affirmed.

Affirmed.

Pittman and Baker, JJ., agree.

1 According to her deposition testimony, appellant resigned from her position at 3M pursuant to a settlement agreement following a racial discrimination lawsuit she filed against her employer.