Wilma Lee, Administratrix of the Estate of Indianna Barnes, Deceased v. Quorum Health Resources, LLC and/or Quorum Health Services, Inc.
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DIVISION III
R OBERT J. G LADWIN, Judge
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
CA05-926
N OVEMBER 8, 2006
WILMA LEE, Administratix of the Estate
of Indianna Barnes, Deceased
APPELLANT
APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT
[NO. CV2004-334-2, CIV01-384-2]
HON. GRISHAM PHILLIPS,
JUDGE
V.
QUORUM HEALTH RESOURCES, LLC
and/or Quorum Health Services, Inc.
APPELLEE
REVERSED AND REMANDED
This appeal is brought from a summary judgment entered in favor of appellee Quorum
Health Resources, LLC (sometimes referred to by the parties as Quorum Health Services,
Inc.). Appellant argues, inter alia, that summary judgment was premature due to outstanding
discovery. We agree and reverse and remand.
Appellant Wilma Lee is the personal representative of the late Indianna Barnes. Ms.
Barnes was admitted to Saline Memorial Hospital in January 2000, suffering from respiratory
problems. A nasogastric feeding tube was used to provide nourishment. At some point during
her stay, Ms. Barnes’s feeding tube became occluded and was replaced by the nursing staff.
An x-ray was ordered to confirm correct placement, and it revealed that the tube improperly
extended into Ms. Barnes’s lung. The tube was either replaced or repositioned, and another
x-ray was ordered. However, feeding resumed for several hours while awaiting the x-ray
results. When the second x-ray was read the next morning, the radiologist, Dr. Gordon
Schally, observed that the tube still extended into Ms. Barnes’s lung. Dr. Schally notified
Ms. Barnes’s attending physician, Dr. Mark Martindale, who came to the hospital and
consulted with a surgeon regarding the situation. Unfortunately, Ms. Barnes became unstable
and died later that day.
Thereafter, appellant was appointed administratrix of Ms. Barnes’s estate. She settled
with Saline Memorial Hospital, then filed suit against several defendants, including Dr.
Martindale, Dr. Schally, and appellee Quorum, which, she contended, was the management
company of Saline Memorial Hospital. She alleged that the defendants were negligent in
various respects, including failing to have a properly trained staff on hand to ascertain the
nature of Ms. Barnes’s condition; failing to coordinate the communication of information to
those treating her; and failing to hire and/or supervise competent physicians, nurses, and
other healthcare personnel.
Quorum answered and pled that appellant’s settlement with Saline Memorial Hospital
inured to its benefit. The parties then engaged in discovery, with appellant propounding
several interrogatories and requests for production to Quorum seeking to ascertain the nature
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of its relationship with Saline Memorial.1 Quorum responded, for the most part, by stating
that the information would be provided later. Quorum, in its discovery, asked appellant to
state each and every act or omission by Quorum that she alleged constituted negligence.
Appellant responded, in pertinent part, that Quorum was one of the largest providers of
hospital-management services in the country and had provided management services to
Saline Memorial in 2000; that Quorum typically placed an employee as CEO or chief
administrator of a hospital; that it generally has the authority to control hospital staffing and
in some circumstances hires and trains workers to oversee quality control; that it had the right
to control “staffing adequacy, quality controls, and lines of communication” at Saline
Memorial Hospital; that inadequate staffing, training, supervisory controls, quality controls,
and communication, “for which a Quorum employee shared responsibility,” contributed to
a failure on the part of the nursing staff to adhere to proper medical treatment when they
resumed feeding of Ms. Barnes; and that the same negligence contributed to the failure to
have Ms. Barnes’s x-ray read for a long period of time while the feeding continued.
On February 20, 2002, Quorum filed a motion for summary judgment, arguing that
appellant’s complaint and interrogatory response clearly showed that her case against
Quorum was one of vicarious liability for the acts of the hospital and its employees and,
1
For example, appellant asked to be provided with contracts delineating the
respective duties of Saline Memorial and Quorum, policy and procedure manuals used by
Saline Memorial or Quorum, and any working agreements between Saline Memorial and
Quorum.
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therefore, the release in favor of the hospital also released Quorum. The motion came on for
hearing on March 10, 2003, at which time appellant non-suited her claim against Quorum.2
Appellant re-filed her complaint against Quorum and the other defendants on April
1, 2004. The complaint was the same in all pertinent respects as her first complaint and a
previously-filed amended complaint, which had added a claim that Ms. Barnes was a thirdparty beneficiary of the contract between Saline Memorial and Quorum. Quorum filed a
motion for summary judgment on the same ground previously stated. Appellant responded
that her claim against Quorum was not strictly one of vicarious liability but of independent,
negligent acts committed by Quorum. Appellant also stated that she had previously requested
(through discovery in the first lawsuit) relevant documents concerning the nature of the
contractual relationship between Saline Memorial and Quorum. However, she said, Quorum
had failed to answer that discovery, so she was submitting another set of interrogatories.
Those interrogatories sought information about Quorum’s relationship with Saline Memorial,
including a copy of their contract. Appellant asked that Quorum’s motion for summary
judgment be denied or held in abeyance until completion of discovery.
On the date that Quorum’s discovery responses were due, it asked for an extension of
time to respond. Appellant did not object but once again asked the court not to rule on
Quorum’s motion for summary judgment until she received Quorum’s responses. Quorum
2
Appellant’s case against all remaining defendants was dismissed on January 14,
2004, for want of prosecution.
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filed a second motion for an extension on or about the next due date, asserting that any
responses it might give were not “germane” to the issues and, in effect, asking the court to
rule on its motion for summary judgment prior to discovery responses being required.
Appellant objected, asked that Quorum be ordered to respond to discovery immediately, and
reiterated that Quorum’s motion for summary judgment should not be ruled upon until
responses were received. Nevertheless, within thirty days, the trial court granted summary
judgment to Quorum. Appellant obtained an Ark. R. Civ. P. 54(b) certificate, allowing her
to appeal even though her claim against the other defendants had not yet been resolved. She
now argues that the trial court erred in granting summary judgment because: 1) the settlement
agreement with Saline Memorial did not release Quorum; 2) discovery was not yet
completed; 3) she is entitled to recover on her third-party beneficiary claim. Because we
agree with appellant that summary judgment was premature in light of outstanding discovery,
we reverse and remand on that issue without addressing the remaining points.
We review the trial court’s action in this case for an abuse of discretion. See
Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). Our supreme court has held that,
“before being required to fully demonstrate . . . evidence in response to a motion for
summary judgment a plaintiff is entitled to have the benefit of adequate discovery from the
opposing party as the nature of the case requires.” First Nat’l Bank v. Newport Hosp. &
Clinic, 281 Ark. 332, 335, 663 S.W.2d 742, 743-44 (1984); see also Pledger v. Carrick, 362
Ark. 182, __ S.W.3d ___ (May 5, 2005) (holding that summary judgment was premature
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where, due to lack of discovery, the facts of the case were not sufficiently developed for the
circuit court to determine whether summary judgment was appropriate). Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the issues in the pending
action, including the claims or defenses of the parties. Ark. R. Civ. P. 26(b)(1) (2006).
In the present case, appellant’s interrogatories and requests for production sought
contracts and other information about the duties and services Quorum provided to Saline
Memorial. These requests were relevant and in fact necessary for appellant to respond to
Quorum’s defense that its relationship with Saline Memorial gave it the benefit of Saline
Memorial’s settlement with appellant. Given these facts, we conclude that the trial court
abused its discretion in granting summary judgment prior to appellant’s receiving responses
to her discovery requests.
Quorum argues that appellant was lax in pursuing discovery. It is true that, in
determining issues such as the one before us, our courts have considered whether the
appellants were diligent in their discovery efforts. See Flake, supra; see also Jenkins v. Int’l
Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Crawford v. Lee County Sch. Dist., 64
Ark. App. 90, 983 S.W.2d 141 (1998). However, Quorum’s argument is not well taken under
the circumstances of this case. In the first lawsuit, Quorum responded to appellant’s requests
to the pertinent discovery by stating that the information had been requested and would be
provided upon receipt. The information was never provided, and while appellant certainly
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could have filed a motion to compel, Quorum could likewise have provided the information
or interposed an objection.
In 2003, appellant took a non-suit as it was her absolute right to do. See Shaw v.
Destiny Indus., Inc., 78 Ark. App. 8, 76 S.W.3d 905 (2002). Her complaint was re-filed in
April 2004, and Quorum moved for summary judgment in August 2004. In September 2004,
appellant propounded additional discovery to Quorum and repeatedly asked that summary
judgment be postponed until the discovery was answered. Quorum did not object to
appellant’s lack of diligence but filed two extensions of time to respond, ultimately stating
that it did not consider appellant’s discovery requests to be germane to the issues. In light of
these circumstances, we cannot say that summary judgment should have been entered due
to appellant’s lack of diligence (and there is no indication that this was the basis for the trial
court’s ruling).
Quorum also points to the fact that appellant did not submit an affidavit to the trial
court pursuant to Ark. R. Civ. P. 56(f), stating why she could not present facts in opposition
to Quorum’s motion. In Crawford, supra, discussing the plaintiff’s lack of diligence in
pursuing discovery, we noted that, had the plaintiff filed a Rule 56(f) affidavit, “the trial
court might well have postponed a decision on summary judgment.” Crawford, 64 Ark. App.
at 95, 983 S.W.2d at 144. However, we do not see that a Rule 56(f) affidavit would have
made a difference in the present case, given that appellant constantly reminded the court that
she was awaiting discovery responses and urged that summary judgment not be granted until
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she received them. Such action by appellant also distinguishes this situation from that in
Jenkins, supra, where the trial court entered summary judgment after giving the plaintiffs
nine additional months after the scheduled summary-judgment hearing to submit opposing
affidavits, during which they neither pursued discovery nor moved for additional time in
which to do so.
Based on the foregoing, we reverse and remand for further proceedings.
Reversed and remanded.
B IRD and R OAF, JJ., agree.
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