Shaffer v. Yang
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Cite as 2010 Ark. App. 97
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-568
Opinion Delivered
JOHNNY MACK SHAFFER et al.
APPELLANTS
V.
LEO YANG, M.D.
February 3, 2010
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. CV-03-994-2]
HONORABLE JOHN S.
PATTERSON, SPECIAL JUDGE
APPELLEE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
This medical malpractice case requires us to decide whether a New York specialist
physician’s expert testimony that all obstetrician/gynecologist physicians in the United States
are held to the same standard was sufficient evidence of the local standard of care in Hot
Springs, Arkansas, when the expert admittedly knew nothing about Hot Springs, its medical
community, or the type of medical services available there. The trial judge ruled that it was
not and granted a directed verdict in favor of appellee for failure to establish the local standard
of care. Appellants argue that the trial court erred in so doing. We affirm.
Appellants’ decedent died from complications stemming from surgical removal of a
pelvic mass by appellee, Dr. Leo Yang. During the surgery, decedent’s bladder was torn and
her bowel was perforated four or five times, permitting the contents of the bowel to spill into
her peritoneal cavity. Dr. Derek J. Tenhoopen, an obstetrician/gynecologist practicing in
Cite as 2010 Ark. App. 97
Rochester, New York, opined that Dr. Yang should have performed more preoperative
testing, obtained a more detailed medical history, considered options other than surgery
before operating on the decedent, and should not have attempted to perform the procedure
laparoscopically.
Arkansas Code Annotated § 16-114-206(a)(1) (Repl. 2006) provides that, in any action
for medical injury, when the asserted negligence does not lie within the jury’s comprehension
as a matter of common knowledge, the plaintiff shall have the burden of proving, by means
of expert testimony provided only by a medical care provider of the same specialty as the
defendant, 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 or she practices or in a similar locality. This proof was
lacking in the present case.
The statute permits the local standard of care to be established by analogy through
proof of the standard of care in similar localities. However, in order to describe the standard
of care in similar localities, the expert must have sufficient relevant knowledge of the locality
where the alleged negligence occurred to be able to identify localities that are similar. Dr.
Tenhoopen clearly lacked such knowledge. He testified that he did not know how large a
city Hot Springs was; that he was unfamiliar with the physicians, medical community, and
services available in Hot Springs; that he did not know how many obstetrician/gynecologists
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CA09-568
Cite as 2010 Ark. App. 97
or general surgeons practiced in Hot Springs; and that he did not know how many hospitals
were located in Hot Springs.
The Arkansas Supreme Court adheres to the locality rule and has held that the affidavit
of an expert medical witness was insufficient to establish the standard of care where it was
devoid of any mention of the standard of care in Baxter County, the site of the alleged
medical malpractice. Mitchell v. Lincoln, 366 Ark. 592, 197 S.W.3d 449 (2006). Likewise, the
supreme court has held that testimony regarding a national standard of care is insufficient
where the expert fails to demonstrate a familiarity with the locality where the alleged
malpractice occurred. Wolford v. St. Paul Fire & Marine Insurance Company, 331 Ark. 426, 961
S.W.2d 743 (1998). In light of these precedents, we hold that the trial court did not err in
directing a verdict in favor of appellee.
Affirmed.
VAUGHT, C.J., and ROBBINS, J., agree.
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CA09-568
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