Susan R. Hamilton v. Dr. D. B. Allen, M.D., Individually, and Dr. Ken Taylor, M.D., Individually
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DIVISIONS I & II
CA061051
NOVEMBER 7, 2007
SUSAN R. HAMILTON
APPELLANT
V.
DR. D.B. ALLEN, M.D., Individuallyand DR.
KEN TAYLOR, M.D., Individually
APPELLEES
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
THIRD DIVISION
[NO. CV02920]
HON. JAY MOODY, JUDGE
AFFIRMED
In this medicalmalpractice case Susan R. Hamilton appeals the circuit court’s order granting
summary judgment in favor of appellees, Dr. D.B. Allen and Dr. Ken Taylor. Hamilton raises four
points on appeal: (1) that appellees’ motion for summary judgment did not demonstrate a prima facie
case and was improperly granted; (2) that the trial court erred in striking her response to appellees’
motion for summary judgment on the basis of untimeliness; (3) that the trial court erred in failing to
allow her to supplement the affidavit of her expert witness; and (4) that the trial court erred in
dismissing her oral motion for a continuance. We find no error by the trial court in granting summary
judgment in favor of appellees, and we affirm.
Hamilton underwent gynecological surgery by Dr. Allen on the afternoon of February 10,
2000. Several hours after the surgery Hamilton’s blood pressure decreased and her pulse rate
increased, suspected to be the result of postoperative, intraabdominal bleeding. Consequently,
exploratory surgery was performed that same evening by Dr. Allen and Dr. Taylor, and two oozing
vessels were identified and ligated. A third surgery was required two days later for additional intra
abdominal bleeding: a third bleeding vessel was found and ligated in this surgery, which was
performed by Dr. Allen and Dr. Michael Pollock. Hamilton was discharged from the hospital eight
days after what had been originally scheduled as a “day surgery.” Her allegations of medical
negligence regarded Dr. Allen and Dr. Taylor’s treatment of her initial postoperative bleeding.
Procedural History
Before addressing the merits of appellant’s argument, we briefly summarize the development
of this case before the circuit court. Appellant initially filed suit in February 2002, just before the
expiration of the statute of limitations. Appellees took the deposition of Dr. Joseph Hume, who had
been identified by appellant as the only medical expert she intended to call as a witness at trial.
Appellees filed a motion for summary judgment on January 26, 2005, alleging that Hamilton could
not meet her burden of proof through the testimony of her expert witness. At a hearing on February
4, 2005, the trial court treated appellees’ motion as a motion in limine because it had been filed after
a courtimposed deadline for the filing of dispositive motions. The court denied the motion in limine,
ruling that Hamilton could call Dr. Hume to testify at trial, that the court would deal at that time with
any objections by appellees to Dr. Hume’s opinions, and that the court was reserving the right to
grant a directed verdict, depending on the evidence presented at trial. The court stated, “So to the
extent that the motion for summary judgment can be considered a motion to exclude the testimony
of Dr. Hume or some motion in limine to that effect as excluding that portion of the testimony, that
motion will be denied.” On the same day, Hamilton voluntarily nonsuited her case as to all
defendants.
On July 13, 2005 Hamilton refiled her complaint against Drs. Allen and Taylor, making
essentially the same allegations of negligence on their part as were made in the first suit. After
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answering and denying all allegations of negligence, appellees filed a motion for summary judgment
on October 6, 2005, based upon the same grounds as their motion for summary judgment in the first
lawsuit, i.e., that because Dr. Hume’s testimony was speculative, it was insufficient as a matter of law
to establish the existence of an essential element of her claim of negligence on the part of appellees.
On November 2, 2005 Hamilton filed a paper entitled “Plaintiff’s Designation of Expert
Witness,” which identified Dr. Harold J. Miller as her only expert witness in the case. Attached to the
document was Dr. Miller’s affidavit: it set forth the standard of care applicable to the surgical
procedures performed on Hamilton by appellees, it stated that appellees had deviated from the
standard of care, and it described the nature of such deviation. On December 1, 2005 Hamilton filed
her response to the motion for summary judgment. She argued, among other things, that appellees’
motion was illfounded to the extent that it relied upon the deposition of Dr. Hume because his
deposition was taken in connection with the earlier case that Hamilton had voluntarily nonsuited and,
therefore, it was not evidence that could be used as a basis for summary judgment in Hamilton’s re
filed lawsuit.
Appellees moved to strike Hamilton’s response, arguing that its filing was not timely and that,
even if timely, Dr. Miller’s affidavit did not establish that he was familiar with the applicable standard
of care and, like Dr. Hume’s testimony, his opinions were based solely upon speculation. Thereafter,
Hamilton moved for leave to supplement Dr. Miller’s affidavit and appellees responded in opposition
to it.
Following a hearing on May 12, 2006, during which Hamilton orally moved that the hearing
be continued until after discovery was completed, the trial court announced its findings: that the
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doctors’ motion to strike Hamilton’s response to the motion for summary judgment should be granted
because the response was not timely filed, that Hamilton’s motion to file a supplemental affidavit of
Dr. Miller should be denied because the filing of Dr. Miller’s initial affidavit was not timely, that
Hamilton’s oral motion for a continuance should be denied, and that the appellee/doctors’ motion for
summary judgment should be granted. The court also reiterated that, at the February 2005 hearing
on appellees’ motion in limine in the first case, it had reserved the right to grant a motion for directed
verdict by appellees and that “the reason they didn’t get their motion for summary judgment is they
waited too close to trial to get it heard.” The court’s decision was memorialized in an order entered
on June 1, 2006. Hamilton now appeals, arguing the four points set forth in the first paragraph
above.
Grant of Summary Judgment
Summary judgment is proper when a claiming party fails to show that there is a genuine issue
as to a material fact and the moving party is entitled to judgment as a matter of law. Skaggs v.
Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (citing Ark. R. Civ. P. 56(c) and Celotex ex Corp.
v. Catrett, 477 U.S. 317 (1986)). Once the moving party has established a prima facie case showing
entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate
the existence of a material issue of fact. Mitchell v. Lincoln, 366 Ark. 592, 598 S.W.3d ___ (2006).
The appellate court determines if summary judgment was appropriate based on whether the evidence
presented by the moving party in support of its motion leaves a material fact unanswered. Id. The
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evidence is reviewed in a light most favorable to the party against whom the motion was filed, with
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all doubts and inferences resolved against the moving party. Id.
In a medicalmalpractice action, the plaintiff must prove: (1) the applicable standard of care;
(2) that the medical provider failed to act in accordance with that standard; and (3) that such failure
was a proximate cause of the plaintiff’s injuries. Webb v. Bouton, 350 Ark. 254, 264, 85 S.W.3d 885,
891 (2002). A medicalmalpractice complaint is subject to a motion for summary judgment when the
plaintiff fails to present expert evidence of those three elements and the defending party demonstrates
that the plaintiff lacks proof on one or more of these essential elements. Robbins v. Johnson, 367
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The dissent does not acknowledge that the purpose of summary judgment is to avoid the
waste of time, work, and money involved in requiring the trial of a case when a party cannot
produce evidence supporting the existence of a fact necessary to establish his claim or defense.
Joey Brown Interest, Inc. v. Merchants Nat’l Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601
(1985). The wellrecited standard to be applied in summaryjudgment cases is whether there is
evidence sufficient to raise a fact issue. See Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d
712, 715 (1998) (citing Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586
(1995)). Rather, the dissenting opinion seems to suggest that even though Hamilton’s expert
doctor could not, without speculation, testify that the appellee doctors had violated any standard
of care, she should, nonetheless, be given a chance to present that proof at trial because the
appellees have not, in their motion for summary judgment, presented affirmative proof that they
did not violate any standard of care. The dissent’s position ignores Ark. Code Ann. § 16114206,
which places the burden on the plaintiff to produce expert evidence establishing the essential
elements of his or her claim, and Ark. R. Civ. P. 56(c), which mandates the grant of summary
judgment where the pleadings, discovery, and affidavits, if any, show that there is no genuine
issue as to any material fact.
In any case, medicalmalpractice or otherwise, summary judgment is appropriate where the
moving party demonstrates that the opposing party will be unable, at trial, to prove an essential
element of his or her claim. See Celotex Corp. v. Catrett, supra (stating that summary judgment is
mandated against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial); CantrellWaind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66, 968
S.W.2d 72 (1998) (stating that the role of summary judgment is simply to decide whether material
questions of fact exist to be resolved at trial).
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Ark. 506, ___ S.W.3d ___ (2006); Parkerson v. Arthur, 83 Ark. App. 240, 125 S.W.3d 825 (2003).
Here, Hamilton had the statutory burden of proving these three essential elements by expert
testimony. See Ark. Code Ann. §16114206(a) (Repl. 2006); Dodd v. Sparks Reg’l Med. Ctr., 90
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Ark. App. 191, 204 S.W.3d 579 (2005).
In order to demonstrate a genuine issue of material fact, the plaintiff’s medical expert must
state “within a reasonable degree of medical certainty” that the defendant breached the standard of
care and that the alleged breach was a proximate cause of the injury. Mitchell v. Lincoln, supra;
Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 229 S.W.3d 7 (2006). A party against
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The dissenting judge cites Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986) and
Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) for the proposition that the
defendant/movants had to prove the requisite standard of care and that they had conformed to
that standard. However, in Wolner, unlike the present case, the defendant doctor/movant filed a
motion for summary judgment and attached his affidavit and the affidavit of his consulting
physician stating merely that the doctor had not been negligent. Describing these affidavits as
mere “conclusory assertions,” the supreme court stated, “When that is virtually all the supporting
strength of a motion for summary judgment then the movant has failed to make a prima facie
showing of entitlement to summary judgment and the burden of going forward does not shift to
the opposing party.” 290 Ark. at 303, 718 S.W.2d at 944 (emphasis added). Likewise, in Cash,
the proof offered by the defendant/movant in support of his motion for summary judgment was
found by the supreme court to be lacking where the deposition testimony of the consulting doctor
failed to establish a prima facie case of lack of causation.
Unlike the movant/defendants in Wolner and Cash, supra, here the movants have
established in their motion for summary judgment that the deposition testimony of Hamilton’s
expert medical witness demonstrated that Hamilton lacked proof on an essential element of her
claim because Dr. Hume could not state, without speculating, that a third bleeding site existed
during the second surgery that Drs. Allen and Taylor should have discovered. Neither Wolner nor
Cash involved a summary judgment in which the movant demonstrated an inability on the part of
the plaintiff to prove one of the essential elements required to be proved in a medicalmalpractice
case.
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However, expert testimony is not required when the asserted negligence lies within the
comprehension of a jury of laymen, such as a surgeon’s failure to sterilize instruments or failure to
remove a sponge from the incision before closing it. Mitchell v. Lincoln, 366 Ark. at 592, 598
S.W.3d at ___ (citing Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944)).
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whom a claim is asserted “may move with or without supporting affidavits for a summary judgment
in his favor as to all or any part thereof.” Ark. R. Civ. P. 56(c). Burdens of proof for the parties to
summary judgment are as follows:
Rule 56(c) [of the Federal Rules of Civil Procedure] mandates the entry of summary
judgment ... against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial. In such a situation, there can be “no genuine issue as to
any material fact,” since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial. The
moving party is “entitled to a judgment as a matter of law” because the nonmoving
party has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof. ...
Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” which it believes demonstrate
the absence of a genuine issue of material fact. But ... we find no express or implied
requirement in Rule 56 that the moving party support its motion with affidavits or
other similar materials negating the opponent’s claim. On the contrary, Rule 56(c),
which refers to “the affidavits, if any” ... suggests the absence of such a requirement.
And if there were any doubt about the meaning of Rule 5(c) in this regard, such doubt
is clearly removed by Rules 56(a) and (b), which provide that claimants and
defendants, respectively, may move for summary judgment “with or without
supporting affidavits[.]”
Celotex, 477 U.S. at 32223. Our Rule 56 tracks the federal rule and is to be construed in accordance
with federal decisions. Reporter’s Notes to Ark. R. Civ. P. 56; Caplener v. Bluebonnet Milling Co.,
322 Ark. 751, 911 S.W.2d 586 (1995).
In their motion for summary judgment, appellees alleged that Hamilton could not meet her
burden of proving the elements of negligence and causation because her only expert witness, Dr.
Joseph Hume, admitted that speculation was the basis of his opinions regarding the alleged
negligence. Appellees attached excerpts from his deposition to their motion. In the deposition Dr.
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Hume stated that, had there not been a third bleeder at the time of the second surgery, he would have
had no criticisms of either appellee. Dr. Hume said that he had no specific criticisms of appellee Dr.
Taylor and did not feel “that he had deviated below any standard of care” with which Dr. Hume was
familiar. Dr. Hume’s criticism of appellee Dr. Allen was that he did not adequately explore the
bleeding in the second surgery and had deviated below the standard of care; this was based upon Dr.
Hume’s opinion that there was a third bleeding site that was not identified. Dr. Hume admitted,
however, that he did not know whether there had been a third bleeder at the time of the second
surgery and that it would require speculation on his part to say so.
The circuit court based its order of summary judgment upon the following finding:
“Defendants have demonstrated that there exists no genuine issue of material fact and that they are
entitled to judgment as a matter of law. Plaintiff has failed to meet proof with proof.” The trial court
did not err in this ruling. Appellees demonstrated their prima facie entitlement to summary judgment
by attaching to their motion portions of Dr. Hume’s deposition demonstrating that his opinion of
negligence on the part of appellees was speculative, thus rendering his opinion insufficient to satisfy
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Hamilton’s burden of proof.
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In affirming the order of summary judgment, we also reject
The dissenting judge misconstrues today’s majority opinion as assigning to a plaintiff in a
medicalmalpractice case a higher burden of proof at the summaryjudgment stage than is
assigned to a plaintiff in any other type of case. To the contrary, we make no such distinction.
Quite simply, in a medicalmalpractice case, as in any other type of case, when a party cannot
present proof on an essential element of his or her claim, there is no remaining genuine issue of
material fact and the party moving for a summary judgment is entitled to judgment as a matter of
law. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992) (citing Short v. Little Rock Dodge,
Inc., 297 Ark. 104, 106, 759 S.W.2d 553, 554 (1988), and Celotex, supra). See Sundeen v.
Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003) (affirming summary judgment where plaintiff
offered no proof of coercive actions or efforts to extort anything from him in abuseofprocess
case against grocery store and its security officer); Irvin v. Jones, supra (affirming summary
judgment because plaintiffs presented no proof of delivery, an essential element of their claim that
certificates of deposit were gifts inter vivos); Short v. Little Rock Dodge, Inc., supra (affirming
summary judgment where plaintiffs claiming negligence and strict liability for manufacture and
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Hamilton’s argument that the trial court’s granting of summary judgment in her second lawsuit was
in error because, prior to the nonsuit of her first lawsuit, the court had denied appellees’ motion in
limine and had ruled that Dr. Hume could testify at trial. Hamilton refers us to no authority for her
argument, and we are aware of none. As appellees note, the trial court never addressed the merits of
the summaryjudgment motion in the first lawsuit because the motion was not timely filed; rather, the
court treated it as a motion in limine and stated that the court would rule on the merits of appellees’
argument after Dr. Hume testified at trial. However, Hamilton nonsuited her first lawsuit and it
never went to trial. We are unaware of any authority that would preclude a party from filing a motion
for summary judgment in a second lawsuit and relying upon the same evidence as was relied upon in
a previously nonsuited lawsuit, especially where, as here, the allegations in the second lawsuit are
the same as those in the first lawsuit.
We take this opportunity to review and clarify the parties’ burdens of proof regarding
summary judgment when the movant is the defendant in a medicalmalpractice action. In Skaggs v.
Johnson, supra, and in Robson v. Tinnin, supra, the movants met their burden of proving a prima
facie case for summary judgment by showing that the plaintiffs had no expert to testify as to the
breach of the applicable standard of care. In Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860
(1995), where the appellant’s expert on the issue of informed consent could not offer an opinion as
to the proper standard of care, the appellant did not meet her burden of proof and no material issue
of fact existed. In Dodd v. Sparks Regional Medical Center, supra, summary judgment was
sale of a defective product were unable to produce evidence that a defect in the car or the dealer’s
negligence in failing to repair it caused the fatal automobile accident; when the summary judgment
motion was made, the trial court had before it depositions and responses to requests for
admissions and interrogatories).
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appropriate where the affidavit, which offered only a statement of what care should have been
provided and an opinion that the healthcare providers had failed to exercise due care, did not
establish the applicable standard of care. When the defendant demonstrates the plaintiff’s failure to
produce the requisite expert testimony, the defendant has demonstrated that no genuine issues of
material fact exist and is therefore entitled to summary judgment as a matter of law. Id.; Skaggs v.
Johnson, supra; Robson v. Tinnin, supra; Brumley v. Naples, supra; Reagan v. City of Piggott, 305
Ark. 77, 805 S.W.2d 636 (1991). The moving party is not required to support its motion with
affidavits or other materials further negating the plaintiff’s claim. See Ark. R. Civ. P. 56 and Celotex,
supra.
In McAdams v. Curnayn, 96 Ark. App. 118, ___ S.W.3d ___ (2006), a medicalmalpractice
action against a veterinary clinic and its employees, this court correctly affirmed an order of summary
judgment but incorrectlyaddressed the summaryjudgment movants’ burden of proof. We summarily,
and incorrectly, disposed of their argument that appellant McAdams, the nonmoving party and the
plaintiff below, had failed through his expert witness to demonstrate the standard of care and a breach
of the standard. Reviewing the proof presented by appellees (the defendant/movants) in their motion
for summary judgment, we stated in dicta:
Appellees did not present affirmative proof of the applicable standard of care required
of a veterinarian in the February 14, 2000 visit or affirmative proof that the
veterinarian complied with the standard of care. ... Without proof supporting the
motion for summary judgment on the applicable standard or breach thereof, appellant
was under no duty to rebut those two aspects of medical negligence.
96 Ark. App. at ___, ___ S.W.3d at ___ (citations omitted). By the opinion we issue today, we
acknowledge that insofar as McAdams appears to say that a defendant/summaryjudgment movant
in a medical malpractice case is required to present affirmative proof of the standard of care and that
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the defendant’s conduct conformed to that standard, McAdams is an incorrect statement of the law
where the basis of the summaryjudgment motion is the plaintiff’s failure to produce evidence to
establish an essential element of the plaintiff’s case.
Timeliness of Response to the Motion for Summary Judgment
Hamilton contends in her second point on appeal that her response to appellees’ motion for
summary judgment was timely and, thus, that appellees’ motion to strike on the basis of untimeliness
should have been denied. In their motion to strike Hamilton’s response to the motion for summary
judgment, appellees asserted that it was untimely and, further, that Dr. Miller’s affidavit failed to
establish an issue of material fact. The circuit court found that Hamilton had not responded to the
summaryjudgment motion within the time prescribed by the Arkansas Rules of Civil Procedure; the
court further stated that, had it considered Dr. Miller’s affidavit, the court would have found the
affidavit insufficient to meet proof with proof.
The adverse party to a motion for summary judgment shall serve a response and supporting
materials, if any, within twentyone days after the motion is served. Ark. R. Civ. P. 56(c)(1). Under
Rule 6(d), “Whenever a party has the right . . . to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper upon him and the notice or paper is
served upon him by mail or commercial delivery company, three (3) days shall be added to the
prescribed period.”
Hamilton was served with appellees’ motion for summary judgment on October 4, 2005. She
argues on appeal that she timely responded within the time prescribed by our rules when she sent
appellees’ counsel a copy of her “Plaintiff’s Designation of Expert Witness” designating Dr. Harold
Miller as her only expert witness and attaching his affidavit to the notice. Appellees assert that this
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paper was wholly insufficient as “a response” to the summaryjudgment motion as contemplated by
our Rules of Civil Procedure. They note that on November 28, 2005 they were served with
Hamilton’s formal response, entitled “Plaintiff Susan R. Hamilton’s Response to Defendant’s Motion
for Summary Judgment,” which addressed the merits of their motion for summary judgment. They
contend that this response was untimely and that the court’s striking of it was proper because of
untimeliness.
We reject Hamilton’s argument that the document designating Dr. Miller as her expert witness
was a response to the motion for summary judgment. Neither the document nor the attached affidavit
addressed the merits of the motion, and nothing in the record indicates that either party treated this
paper as a response to the motion before Hamilton served her actual response on November 28, 2005.
Appellees’ summaryjudgment motion was served on Hamilton on October 4, 2005, and, without
requesting an extension of time within which to file her response, she did not serve her response until
almost eight weeks later. The trial court did not err in finding that Hamilton did not respond within
the time allowed by our Rules of Civil Procedure; therefore, there was no error in the striking of her
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response on the basis of untimeliness.
Supplementation of Dr. Miller’s Affidavit
As her third point on appeal, Hamilton contends that the circuit court erred in denying her
motion to file a supplemental affidavit of her designated expert witness, Dr. Harold Miller. This
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The designation of witness was served on October 27, 2005, twentythree days after
Hamilton was served the summaryjudgment motion on October 4. Hamilton argues that,
because the motion was served by both fax and mail, Rule 6(d) allowed three days for mailing in
addition to the twentyone days prescribed by Rule 56(c)(1), for a total of twentyfour days.
Appellees argue that Hamilton had only twentyone days from October 4 to serve her
response. Because we agree with the trial court that the designation of witness is not a response
to the motion, we need not decide this issue.
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motion was submitted to the trial court approximately a month before the scheduled date of the
summaryjudgment hearing on May 12, 2006. The court denied the motion to supplement at the
conclusion of the May 12 hearing.
Hamilton argues that the denial of her motion to supplement Dr. Miller’s affidavit was error
because service of his original affidavit was timely and appellees would suffer no surprise or prejudice
by supplementation of the affidavit. She points out that, under Ark. R. Civ. P. 56(e), the circuit court
may permit affidavits to be supplemented by further affidavits. However, as we noted in our
discussion of Hamilton’s second point on appeal, the paper designating Dr. Miller as Hamilton’s
expert witness was not a response to appellees’ motion for summary judgment. Thus, we need not
address any argument regarding supplementation of Dr. Miller’s affidavit.
Hamilton also argues that a written order of the circuit court, marked with a file date of May
10, 2006, granted “leave to submit supplemental affidavit of Dr. Harold Miller.” The order,
submitted to the court by Hamilton as a proposed order, was entered without any of the other parties’
knowledge, and no mention was made of it at the hearing two days later. At the hearing on May 12,
2006, the court denied Hamilton’s motion to supplement Dr. Miller’s affidavit, and an order to that
effect was entered on June 1, 2006. By written order of June 26, 2006, the court vacated the order
of May 10, 2006 and left its order of June 1, 2006 undisturbed. The denial of the motion to
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supplement was within the discretion given to the trial court by Rule 56(e). Further, Hamilton has
demonstrated no prejudice from the mistaken granting of her motion.
Oral Motion for a Continuance
Hamilton contends in her final point on appeal that the trial court erred by denying her oral
motion for a continuance at the hearing on May 12, 2006. She argues on appeal, as she did to the
trial court, that sufficient discovery had not taken place and that she had not been able to schedule
depositions with appellees.
Rule 56(f) allows a party opposing a motion for summary judgment to request a continuance:
Should it appear from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his opposition, the court
may . . . order a continuance to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order as is just.
Ark. R. Civ. P. 56(f). Under this rule, the decision on whether to grant a continuance is a matter of
discretion with the trial court. Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).
Hamilton did not submit an affidavit stating the reasons that the trial court should order a
continuance to allow further discovery, as is required by Rule 56(f). From her counsel’s comments
to the trial court during the hearing, it appears that the additional discovery Hamilton desired was for
appellees to take the deposition of Dr. Miller, an offer that appellees’ attorney had earlier declined.
The trial court acted well within its discretion in denying Hamilton’s oral motion for a continuance.
Affirmed.
GLADWIN, MARSHALL, VAUGHT, and MILLER, JJ., agree.
BAKER, J., dissents.
KAREN R. BAKER, Judge, dissenting. If our standard on review of summary judgment is that
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we actively work to prevent a medical malpractice case from going to trial, then we should clearly
state that goal. The reality is that we are not far from that practice now. One study conducted by the
U.S. Department of Health and Human Services revealed that only 1.53% of those injured by medical
malpractice file a claim. See Kimberly J. Frazier, Arkansas’s Civil Justice Reform Act of 2003: Who’s
Cheating Who?, 57 Ark. L. Rev. 651, 655 & n 28 (2004). The same study indicated that a mere 8
13% of the claims filed by these injured patients or their survivors proceeded to trial; “and of these
only 1.21.9% ended with a verdict favorable to the plaintiff.” Id. nn 2930. See also Examining the
Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29
(concluding that in 2004, medical malpractice cases accounted for an average of only four percent
of tort cases in 13 states reporting).
Eliminating the threat of a jury trial would have an enormous impact on the handling of
malpractice claims. As Neil Vidmar, a professor with Duke University known for his extensive study
of medical malpractice litigation, recently explained in testimony to the U.S. Senate, “Without
question the threat of a jury trial is what forces parties to settle cases. The presence of the jury as an
ultimate arbiter provides the incentive to settle but the effects are more subtle than just negotiating
around a figure. The threat causes defense lawyers and the liability insurers to focus on the acts that
led to the claims of negligence.” Testimony of Neil Vidmar, Professor of Law, Duke Law School
before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical
Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 21.
(Citations omitted).
As Professor Vidmar opined, the threat of the jury trial forces those defending to actually
examine the acts of the medical care providers. Ordinarily, one might anticipate that a system of
justice would encourage the participants to focus on the facts and circumstances surrounding the
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allegations of harm. Given that just fractions of a percentage of claims ever come to trial in a medical
malpractice case, the courts should be particularly vigilant in adhering to our procedural safeguards.
Instead of adhering to precedents that safeguard these procedures, the majority states the
following in its opinion: “We take this opportunity to review and clarify the parties’ burdens of proof
regarding summary judgment when the movant is the defendant in a medicalmalpractice action.” The
five judges in the majority on this panel then purport to, for lack of a better term, “correct” the five
judges in the majority on McAdams v. Curnayn, 96 Ark. App. 118, ___ S.W.3d ___ (2006). While
I dissented on other grounds in McAdams, the majority in McAdams did accurately state our supreme
court’s precedents regarding the standard of review for summary judgment in medical malpractice
cases. My dissent in this case is based upon two premises: (1) We have no authority to overrule our
supreme court’s mandates on the standard of review for summary judgment cases; (2) Our supreme
court applies the same standards of proof in a summary judgment case involving medical malpractice
as it does in any other case disposed of by summary judgment.
The majority disagrees with each of those premises as it further decrees: "By the opinion we
issue today, we acknowledge that insofar as McAdams appears to say that a defendant/summary
judgment movant in a medical malpractice case is required to present affirmative proof of the standard
of care and that the defendant’s conduct conformed to that standard, McAdams is an incorrect
statement of the law where the basis of the summaryjudgment motion is the plaintiff’s failure to
produce evidence to establish an essential element of the plaintiff’s case." 1
Perhaps the majority has adopted the general premise of the legislature’s enactment of The
1
The statement in McAdams to which the majority refers reads as follows: “Without proof
supporting the motion for summary judgment on the applicable standard or breach thereof,
appellant was under no duty to rebut those two aspects of medical negligence.” 96 Ark. App. at
___ , ___S.W.3d ___ (2007).
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Civil Justice Reform Act of 2003: “The Civil Justice Reform Act of 2003 (hereinafter ‘Act 649'
transforms the manner in which Arkansas courts must conduct business.” Frazier, supra. One author,
Kimberly Frazier, applied Act 649 to Advocat Inc. v. Sauer, ___ Ark. ___, ___ S.W.3d ___ (2005),
a case involving negligence of a nursing home, to explain the effect the Act had upon the court’s
practices:
Under Act 649, a cause of action with the same facts would have had higher burdens of proof
for punitive damages, diminished venue option, no possibility of joint liability, different
pleading requirements and a maximum jury award of $1 million dollars (in stark contrast with
the $63 million in punitive damages initially awarded in Sauer).
Of course, I believe that where the Act infringes upon the court’s rules and procedures, our
supreme court will reject any such infringement. One example of such a rejection is our supreme
court’s finding as unconstitutional Act 649's requirement that a trial court dismiss a plaintiff’s
malpractice case if a plaintiff fails to file an affidavit of reasonable cause within thirty days of filing
her complaint, now codified at Ark. Code Ann. § 16114209(b) (Repl. 2006). See Summerville v.
Thrower, 369 Ark. 231, ___ S.W.3d ___ (2007). Our supreme court concluded that the mandatory
thirtyday requirement for the affidavit of reasonable cause after filing the complaint directly
conflicted with Rule 3 of our Rules of Civil Procedure regarding commencement of litigation. Id.
Accordingly, they reversed and remanded the case for further proceedings. Id. In explaining its
reasoning, our supreme court quoted with approval a sister court’s striking of a similar provision:
The Oklahoma legislature implemented the Affordable Access to Health Care Act ... for the
purpose of implementing reasonable, comprehensive reforms designed to improve the
availability of health care services while lowering the cost of medical liability insurance and
ensuring that persons with meritorious injury claims receive fair and adequate compensation.
Although statutory schemes similar to Oklahoma’s Health Care Act do help screen out
meritless suits, the additional certification costs have produced a substantial and
disproportionate reduction in the number of claims filed by lowincome plaintiffs. the
affidavit of merit provisions frontload litigation costs and result in the creation of cottage
industries of firms offering affidavits from physicians for a price. They also prevent
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meritorious medical malpractice actions from being filed. the affidavits of merit requirement
obligates plaintiffs to engage in extensive pretrial discovery to obtain the facts necessary for
an expert to render an opinion resulting in most medical malpractice causes being out of
court during discovery. Rather than reducing the problems associated with malpractice
litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’
claims based solely on procedural, rather than substantive grounds.
Summerville, 369 Ark. at ___, ___ S.W.3d at ___ (quoting Zeir v. Zimmer, Inc. ___ P.3d ___, ____
(Okla. Dec. 9, 2006)) (emphasis added).
Our supreme court’s rejection of this legislative infringement upon court procedures in the
management of a medical malpractice action reaffirms the premise that we do not have a different
standard of review for orders granting summary judgment in a medical malpractice case. Nor should
we. Despite much discussion to the contrary, litigation and the threat of jury trials improves health
care in much the same way that litigation in other contexts protects the safety of the citizens of this
country:
In the absence of a comprehensive social insurance system, the patient’s right to safety can be
enforced only by a legal claim against the hospital. … [M]ore liability suits against hospitals
may be necessary to motivate hospital boards to take patient safety more seriously.…
Anesthesiologists were motivated by litigation to improve patient safety. As a result, this
profession implemented 25yearsago a program to make anesthesia safer for patients and as
a result, the risk of death from anesthesia dropped from 1 in 5000 to about 1 in 250,000.
George J. Annas, J.D., M.P.H., “The Patient’s Right to Safety – Improving the Quality of Care
through Litigation against Hospitals,” New England Journal of Medicine, May 11, 2006.
Under the majority’s analysis, a plaintiff in a medical malpractice case has a higher burden of
proof at the summary judgment stage of a proceeding than a plaintiff in any other type of case. A
plaintiff has to establish through expert testimony that the defendant committed malpractice before a
plaintiff is allowed to present that proof to the factfinder. According to the majority, all a defendant
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in a medical malpractice case need allege in a motion for summary judgment is that the plaintiff has
not yet met, by expert testimony, his burden of proof pursuant to the statutes. No provision in the
medical malpractice statutes requires that a plaintiff meet his or her burden of proof prior to trial.
Neither has our supreme court adopted that standard:
Summary judgment is to be granted by a trial court only when it is clear that there are no
genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter
of law. Once the moving party has established a prima facie entitlement to summary judgment,
the opposing party must meet proof with proof and demonstrate the existence of a material
issue of fact. On appellate review, we determine if summary judgment was appropriate based
on whether the evidentiary items presented by the moving party in support of its motion leave
a material fact unanswered. This court views evidence in a light most favorable to the party
against whom the motion was filed, resolving all doubts and inferences against the moving
party. Our review is not limited to the pleadings, as we also focus on the affidavits and other
documents filed by the parties. After reviewing undisputed facts, summary judgment should
be denied if, under the evidence, reasonable persons might reach different conclusions from
those undisputed facts.
Rice v. Tanner, 363 Ark. 79, 82, 210 S.W.3d 860, 863 (2005) (citations omitted) (holding that once
a movant in a medical malpractice case presents evidence in a summary judgment context establishing
the standard of care and that the standard of care was met by the defendant, the nonmoving party must
present evidence to create a fact question).
In the context of summary judgment, our duty as a reviewing court is to determine, first and
foremost, whether the moving party has presented evidence that establishes that the facts are
undisputed and that the only conclusion from the undisputed facts is that the movant’s actions cannot
be the legal basis for recovery. See id. The majority’s confabulation of our standard by inserting a
sufficiency determination in a medical malpractice summary judgment is perplexing. What is even
more confusing is the majority’s citation to federal procedure and precedent to support this perversion.
Not only is our supreme court not bound by federal case law interpreting federal procedural rules
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regarding summary judgment, but our supreme court has specifically rejected the premise that a trial
court considering a summary judgment motion should determine whether the evidence presented at
summary judgment is sufficient to sustain a burden of proof at trial:
Also cited by the petitioners is Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986), in which the Supreme Court stated that the summaryjudgment
standard “mirrors the standard for a directed verdict.” That statement was repeated by the
Supreme Court, although it was not the basis of the holding, in Celotex Corp. v. Catrett, 477
U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), a case we have cited often for other
language concerning summaryjudgment law but not for the "mirror" concept.
If it has not been clear heretofore, we hope this opinion clarifies that, although we follow
federal courts’ interpretation of the parallel rule, F.R.C.P. 56(c) when possible for the sake of
uniformity, we have never gone so far as to say, much less hold, that we will make a
“sufficiency of the evidence” determination when a summaryjudgment motion is at issue. We
regard that directedverdict standard, used in ruling on motions made pursuant to Ark. R. Civ.
P. 50, as being somewhat different from the summaryjudgment standard.
We have ceased referring to summary judgment as “drastic” remedy. We now regard it simply
as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting
of the motion when the state of the evidence as portrayed by the pleadings, affidavits,
discovery responses, and admissions on file is such that the nonmoving party is not entitled to
a day in court, i.e., when there is not any genuine remaining issue of material fact and the
moving party is entitled to judgment as a matter of law.
Wallace v. Broyles, 331 Ark. 58, 194195, 961 S.W.2d 712,723724 (1998) (emphasis added).
Our supreme court admonishes that a “sufficiency of the evidence” determination is not the
appropriate standard when a summaryjudgment motion is at issue. That specific admonition alone
requires reversal of the case before us. In direct contradiction with our supreme court’s instruction
that sufficiency of the evidence is not our determination, the majority opines: “Appellees demonstrated
their prima facie entitlement to summary judgment by attaching to their motion portions of Dr. Hume’s
deposition demonstrating that his opinion of negligence on the part of appellee was speculative, thus
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rendering his opinion insufficient to satisfy Hamilton’s burden of proof.” 2
Not only does the majority err by applying a sufficiency of the evidence standard to hold that
the expert’s opinion was insufficient to satisfy Hamilton’s burden of proof, but the majority also
further compounds that error by completely ignoring the fact that the medical expert is legally
incapable of admitting that his testimonyis impermissibly speculative. Examining the appellees’ motion
for summary judgment makes the majority’s error painfully clear.
Paragraph two of appellees’ motion for summary judgment reads as follows: “Expert testimony
is inadmissible if based upon speculation.” Paragraph three states the following: “Plaintiff’s only
liability expert witness, Dr. Joseph Hume, admitted during his deposition that he bases his opinions
regarding the issue of negligence (and therefore on the issue of causation) on speculation.” Paragraph
four continues with this conclusion: “Because plaintiff’s theories of negligence and causation are based
upon speculation, testimony regarding those theories is inadmissible and thus plaintiff cannot satisfy
her burden of proof against Dr. Allen and Dr. Taylor. Where a plaintiff cannot meet her burden of
proof on an essential element of her claim, the defendant is entitled to summary judgment.”
Appellees’ motion for summary judgment characterized the medical expert’s testimony as
2
When evaluating an expert opinion regarding the causation aspect of the negligence
claim, a trial court should be mindful of the following admonition emphasizing that proximate
cause is a jury question: “Arkansas does not require any specific “magic words” with respect to
expert opinions, and they are to be judged upon the entirety of the opinion, not validated or
invalidated on the presence or lack of ‘magic words.’ See Wackenhut Corp. v. Jones, 73 Ark.
App. 158, 40 S.W.3d 333 (2001). Even in medical malpractice cases, proximate cause may be
shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if
the facts proved are of such a nature and are so connected and related to each other that the
conclusion may be fairly inferred. See Stecker v. First Commercial Trust Co., 331 Ark. 452, 962
S.W.2d 792 (1998).” WalMart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754
(2004)).
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speculation. In their brief in support, appellees cite three cases and proclaim that “the Supreme Court
affirmed directed verdicts in favor of medical care providers where plaintiffs failed to present expert
medical testimony to support their allegations of negligence against medical care providers.”
(Emphasis added). Motions for directed verdict and judgment notwithstanding the verdict as to proof
of negligence and resulting damages are challenges to the sufficiency of the evidence. See Callahan
v. Clark, 321 Ark. 376, 386, 901 S.W.2d 842, 847 (1995); see Conagra, Inc. v. Strother, 340 Ark.
672, 676, 13 S.W.3d 150, 153 (2000) “motion for JNOV is technically only a renewal of the motion
for a directed verdict made at the close of the evidence).
Appellees’ entire motion is based upon their claim that Dr. Hume admitted that his opinions
were based upon speculation. While that argument may be appropriate in the context of analyzing
whether or not a trial court properly directed a verdict in a jury trial, it is inapplicable to our analysis
regarding the propriety of an order granting summary judgment. As convenient as the argument may
be, it is understandable why appellees failed to include any legal authority regarding any admission by
Dr. Hume that his opinion was impermissibly speculative as a matter of law. While there is nothing in
the record to indicate that Dr. Hume would have had any insight into the legal significance of
impermissible theorizing to reach a conclusion, even if he had testified that he was the foremost legal
authority in the country on evidentiary matters with an emphasis on impermissible speculation, his legal
opinion as to the admissibility of his testimony would be completely irrelevant. Evidentiary matters
regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in
this regard will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 958
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3
S.W.2d 519 (1997).
Nothing Dr. Hume might have said could relieve the trial court of its duty to review the
“evidence” presented to it to determine whether a factual matter was presented. It was the trial court’s
duty, not a party’s nor a witness’s, to determine whether the appellees had established a prima facie
case that they were entitled to judgment as a matter of law. The duty of a plaintiff, even in a
malpractice case, to present proof prior to trial only arises when the moving party first establishes a
prima facie case that judgment is warranted as a matter of law. When the proof supporting a motion
for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof
with proof. See Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995); Wolner v. Bogaev, 290
Ark. 299, 718 S.W.2d 942 (1986). Our supreme court has explained the application of this principle
in previous malpractice cases:
In Wolner, the plaintiff was in the hospital for prostatic surgery, and following surgery,
he rose from a chair, fell, and broke his arm. He sued the hospital and his urologist, and the
circuit court granted summary judgment in favor of both. Our supreme court reversed with
respect to the urologist and stated that it was the responsibility of the urologist, as the moving
party, to prove the requisite standard of care and that he had conformed to that standard of
care before the opposing party was required to present proof of the contrary. This he failed
to do.
Similarly, in Collyard v. American Home Assur. Co., supra, the issue was whether
proof was sufficient to sustain summary judgment in a slip and fall case. The plaintiff
(Collyard) gave a deposition in which she stated that she did not know how the water causing
her fall got on the floor or how long it had been there. The defendant business (YMCA) where
the plaintiff fell moved for summary judgment and attached the plaintiff’s deposition in support
of the motion. The circuit court granted the motion in favor of the defendant because the
plaintiff had not responded to the motion by countervailing proof. This court reversed and
stated:
3
Even Rule 701 of the Arkansas Rules of Evidence allowing the opinion of lay persons,
rather than experts, has been recognized not as a rule against opinions, but as a rule that
conditionally favors them. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).
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The appellant [Collyard] alleged negligence on the part of the YMCA. The appellee [YMCA]
never controverted this allegation by affidavit or other proof. It simply offered the deposition
of Collyard that she did not know how the water got there or how long it had been there. The
appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward
with additional proof on this issue. The burden in a summary judgment proceeding is on the
moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The
object of a summary judgment is not to try the issues but to determine if there are issues of
fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered
proof that the YMCA was not negligent, then Collyard would have had to produce a counter
affidavit or proof refuting the offer. But that was not the case. The appellee based its motion
only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained
uncontroverted and Collyard should be permitted to present other evidence on that fact.
Collyard, 271 Ark. at 229230, 607 S.W.2d at 668.
Cash v. Lim, 322 Ark. 359, 36566, 908 S.W.2d 655, 65859 (1995) (reversing and remanding
summary judgment award holding that surgeon’s deposition, which was attached to defendants’
motion for summary judgment, did not constitute proof of lack of causation that required
countervailing proof from plaintiffs).
Applying the principles discussed in Wolner, supra, and Cash, supra, appellees as the moving
party had to prove the requisite standard of care and that they had conformed to that standard of care
before appellant was required to present proof to the contrary. Appellees’ failure to provide proof that
they had met the standard of care precluded the entry of summary judgment and requires reversal in
this case.
It may seem axiomatic, from reading our supreme court precedents and our reiteration of those
precedents in McAdams, that appellees failed to make a prima facie case by failing to first establish
conformity with the standard of care. Yet, appellees’ based their argument and the majority renders its
opinion upon the assumption that appellees only needed to prove that appellant had not yet presented
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the requisite expert testimony. Rather than presenting evidence that established the standard of care and
compliance with that standard, appellees presented evidence that appellant’s expert witness had not
demonstrated the standard of care and violation of that standard that proximately caused damages to
appellant. The argument is convenient for appellees who conducted the deposition of appellant’s expert
witness and were under no obligation to inquire as to the standard of care and compliance with the
standard in questioning appellant’s expert.
Even with their complete control of the questioning of appellant’s expert, Dr. Hume, the
statements by Dr. Hume were not as impermissibly speculative as the majority contends. Dr. Hume
testified that the deviation from the standard of care in this case came from the failure to properly
identify the cause of the excessive bleeding which would have been identified if Dr. Allen had
adequately opened the incision area. Appellees’ counsel questioned, “If I understand your testimony,
your opinion in this case that Dr. Allen deviated below the standard of care is based upon your opinion
that there was a third bleeding site that was not identified?” It is clear from the context that the third
site was not identified by Dr. Allen because he did not extend the incision enough to visualize the area
in question. When appellees’ counsel asked, “And it would be speculation to say they would have found
anything, correct?”, Dr. Hume responded, “Well, no, I still think that there was a bleeder from the first
surgery that they didn’t get or they tamponaded it just enough when they put those sutures in for the
oozers and then it reopened up.”
Ironically, the testimony that the appellees and the majority apparently rely so heavily upon
regarding speculation surrounds the attempts by counsel to commit Dr. Hume to saying that the
excessive bleeding was caused by the two sources of bleeding identified by appellees but that appellees
just failed to adequately address the bleeding:
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Q: And you don’t have any reason to doubt, as we sit here today, Dr. Allen’s testimony
concerning how far he opened that up?
A: No. I don’t have any he just didn’t go all the way up in the infundibulopelvic
retroperitoneal space of the ligament.
Q: So am I correct, do you believe that there was a third bleeding site?
A: Probably. It was artery. And we know he didn't get it because the surgeon found it on the
12th.
...
Q: Just to make sure I understand. During the second surgery, meaning the first exploratory
surgery, from your review of the records and Dr. Allen’s deposition, it’s your opinion that there was
a third bleeding site?
A: That’s correct.
Q: What in your opinion caused that third bleeding site?
A: I think that the vessell retracted.
Q: When did the vessel retract?
A: At the initial surgery, he lost it in the clamp, pulled back. Or it could have torn, depending
upon how much tension was placed on it.
Q: Did you see in looking at the operative note from the second surgery, any evidence of
continuing bleeding after Dr. Allen had sutured the two bleeding sites he identified?
A: He sutured the two oozing and he didn’t feel he saw any other sites. But I think that it was
probably tamponaded for a bit and then it opened back up. Since its arterial it will go through spasms.
Q: So in other words, you don't know whether this third bleeding site was actually bleeding
at the time of the second surgery?
A: That's correct.
Q: It would be speculation on your part to say that it was bleeding?
A: It would be speculation. But for the amount of blood that she had there, it probably had
bled on and off to make the volume up so great.
...
A: I feel that the amount of blood there was not was more than what the two oozes would
cause.
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Q: Is that based upon your opinion that the sites were both oozing at the time of the second
surgery?
A: Right.
Q: So as far as whether they had been bleeding more vigorously before
A: I have no opinion on that.
Q: So in other words, when you saw the oozing of the two sites Dr. Allen identified during the
second surgery, you can't say without speculating that those two sites, or one or the other, wasn’t
bleeding more vigorously before?
A: I can't say for sure that one of those was bleeding heavy.
Q: So as far as the blood that was actually found during the second surgery, it would be
speculation to say that it didn't come from one or both of the two bleeding sites
A: That's true.
...
Q: Is it possible that the bleeding could have started after the second surgery?
A: I doubt it.
Q: But is it possible?
A: It could be possible.
...
Q: I take it, if there was not a third bleeder at the time of the second surgery, you would not
have had any criticisms of Dr. Allen or Dr. Taylor?
A: No.
Q: Is that correct?
A: That's correct.
Q: As we sit here today
A: There wouldn't be a second surgery.
...
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Q: again, if there was not a bleeding site during that second surgery, that would have served
no purpose to go up and look for it further?
A: It would have made sure that there wasn't anything that we were that he was missing. It's
what you do when you have to go back in.
These exchanges show that Dr. Hume examined the surgical notes from the procedures and
the deposition of one defendant surgeon to conclude that the standard of care required that the
surgeon determine the source of the excessive bleeding by making a longer incision than that
performed by appellees to adequately examine the area. After pages and pages of this type of
questioning about matters other than appellees' failure to properly examine the patient, and only pages
94 through 117 of Dr. Hume’s deposition were attached to the motion, Dr. Hume’s somewhat sharp
response in reiterating his criticism is understandable:
A: Well, no. My criticism is that he didn't open that whole space up so that he could visualize
what he was clamping. I mean, when you do that, you basically have skeletonized the vessels so that
you know damn good and well that you're grabbing onto the vessel and not a lot of tissue with it.
The majority does not explain how this testimony demonstrates that appellees were entitled
to judgment as a matter of law. By their reasoning, an examination of the evidence is unnecessary
because once appellees alleged that the evidence was insufficient, appellant had to provide evidence
sufficient to meet her statutory burden of proof or her medical malpractice case would be dismissed
on summary judgment. Until our supreme court holds that we have a different standard for summary
judgment in medical malpractice cases, the majority's approach is not the law. Because the majority's
approach clearly violates that standard, this case should be reversed and remanded on appellant's first
argument rendering the remaining arguments moot.
Accordingly, I dissent.
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