Myers v. Cooper Clinic, P.A.
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Cite as 2011 Ark. App. 435
ARKANSAS COURT OF APPEALS
DIVISION IV
CA10-689
No.
Opinion Delivered
SHEILA MYERS and TREVOR MYERS
APPELLANTS
V.
COOPER CLINIC, P.A., and
PATHOLOGY SERVICES
LABORATORY, P.A.
June 15, 2011
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[CIV-2006-934]
HONORABLE JAMES O. COX,
JUDGE
APPELLEES
AFFIRMED
DAVID M. GLOVER, Judge
In this medical-malpractice case, a gastric biopsy specimen taken from Sheila Myers
was contaminated with tissue from an unknown male who had mantle-cell lymphoma,
resulting in Sheila receiving the mantle-cell diagnosis and having further procedures that
were later determined to be unnecessary. Sheila and her husband, Trevor, appeal from an
April 13, 2010 order that 1) granted Cooper Clinic’s motion for summary judgment, 2)
denied (again) Pathology Services Lab’s motion to dismiss for improper venue, and 3)
transferred the case against Pathology Services Lab to Pope County. They raise the
following issues: 1) whether summary judgment is proper against a party who has
established a prima facie showing of negligence predicated on the doctrine of res ipsa
loquitur, and 2) whether expert testimony is always required to survive summary judgment
in a medical-malpractice action. In addition, the Myerses contend that if we reverse the
Cite as 2011 Ark. App. 435
trial court’s grant of summary judgment, then we should remand the entire case, i.e.,
including the portion involving Pathology Services Lab, to Sebastian County Circuit
Court with instructions for it to rehear the venue issues. We affirm the grant of summary
judgment in favor of Cooper Clinic. We do not address the denial of Pathology Services’
motion to dismiss or the trial court’s transfer of that portion of the case to Pope County.1
Background
In its letter opinion, the trial court outlined the procedural backdrop for its grant of
summary judgment in favor of Cooper Clinic:
This case began as a dual filing in Pope County Circuit Court (Case No.
2006-393) and in Sebastian County Circuit Court in 2006. The Plaintiff based her
action on an upper endoscopy biopsy performed on her stomach by Dr. Jacob
Joseph on August 23, 2004. After this biopsy procedure, her biopsy material was
transferred from Cooper Clinic to a courier employed by Pathology Services
Laboratory. This courier transported the biopsy material to the Pathology Services
Laboratory location in Pope County for processing. The Plaintiff alleged that the
biopsy material was contaminated by a male specimen at some point in the
procedure, transport, or processing.
The Pope County action was dismissed without prejudice pursuant to Rule
12(b)(8) on Jan. 23, 2007. In the Sebastian County action, Separate Defendants Dr.
Laura Lowther and Pathology Services Laboratory, P.A. filed a Motion to Dismiss
for lack of proper venue on Oct. 5, 2007. The Court denied this Motion on Dec.
4, 2007 and maintained venue over the case. However, on March 11, 2010, the
Arkansas Supreme Court clarified the medical malpractice venue statute in Clark v.
Johnson Regional Medical Center, 2010 Ark. 115, No. CV-2007-1517. Thereafter,
Separate Defendants Dr. Laura Lowther and Pathology Services, P.A. filed a
Motion for Reconsideration on March 15, 2010.
1
The only issue before us involves the grant of summary judgment to Cooper Clinic.
On motion by Pathology Services Laboratory, we have previously dismissed as nonappealable
the portion of the appeal challenging the transfer of venue to Pope County.
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Cite as 2011 Ark. App. 435
Separate Defendants Dr. Jacob Joseph and Cooper Clinic, P.A. filed a
Motion for Summary Judgment on January 19, 2010. Prior to the hearing on these
motions, the Plaintiff moved to dismiss separate defendants Jacob Joseph, M.D. and
Laura Lowther, M.D. without prejudice. That motion was granted and therefore
the medical doctors are not affected by today’s ruling.
With that backdrop, the trial court addressed Cooper Clinic’s motion for summary
judgment. In support of its motion for summary judgment, Cooper Clinic submitted the
affidavit of Lisa Woodward, R.N., and the depositions of Janet Stephens, Betty Maddox,
Brandy Sams, and Dr. Laura Lowther. These supporting documents can be briefly
summarized; however, the depositions of Brandy Sams and Dr. Laura Lowther, who both
work for Pathology Laboratory Services, were also submitted in support of the laboratory’s
response to Cooper Clinic’s motion for summary judgment. Because they deal with the
laboratory’s procedures, they will be summarized only once and in the section of this
opinion setting out the laboratory’s response although both sides used them and relied
upon them.
1) Woodward affidavit — Lisa Woodward, R.N., stated her background,
qualifications, and professional associations. After reviewing the complaint, the Maddox
and Joseph depositions, and the Cooper Clinic policies and endoscopic-procedure record
for Sheila Myers, Woodward stated her opinion that Dr. Joseph and the two nurses
assisting him in the August 23, 2004 gastric-biopsy procedure provided the required
standard of medical care and stated her belief that it was highly unlikely that the gastricbiopsy specimen taken from Ms. Myers became contaminated with a male mantle-celllymphoma specimen in the Cooper Clinic, P.A., endoscopic suite.
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2) Maddox deposition — Betty Maddox explained that she was a registered nurse
employed by Cooper Clinic as Director of the ambulatory-surgery center. She stated that
she played no clinical role with regard to Ms. Myers’s 2004 procedure, but that as director
she is very familiar with the procedures employed in the endoscopic suite. She described
those procedures in detail, explaining the steps that are involved in the type of biopsy
procedure Ms. Myers had. She also described in detail the equipment that is used and the
sterilization procedures that are followed. She stated that after the allegations arose about
tissue contamination concerning Ms. Myers, she participated in the investigation to
determine whether it could have occurred at Cooper Clinic. She described the steps they
took in the investigation and stated that at its conclusion, she was confident no crosscontamination had occurred at Cooper Clinic.
3) Stephens Deposition — Janet Stephens explained that she is a registered nurse in
endoscopy at the ambulatory-surgery center at Cooper Clinic. She acknowledged that she
had no independent recollection of the procedure involving Ms. Myers, and, therefore,
her information was based on procedures and records. She stated that she was the nurse in
charge of sedation, vital signs, and record keeping during the procedure, and she described
in detail the steps that are taken when specimens are retrieved from the body. She stated
that the specimen-container lids are not unscrewed until just before the specimens are
placed in the containers and that she was not aware of any situation in which the
specimen-container lid would be unscrewed after the specimens were placed in the
container. She said that she was also not aware of any situation where a container with a
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specimen in it would be put back on the supply shelf rather than being handed to the
circulator nurse to label it and put it in the hallway for collection. She concluded that she
could think of no way that the cross-contamination could have occurred at Cooper
Clinic.
The Myerses offered the affidavit of Dr. James G. Caya, and the depositions of Dr.
Joseph, Betty Maddox, and Janet Stephens, as well as the depositions of Brandy Sams, and
Dr. Laura Lowther referenced above in support of their response to the clinic’s motion for
summary judgment.
1) Caya Affidavit — James Caya, M.D., described his background, qualifications,
and professional associations. He explained that he is a medical doctor with speciality in
the field of pathology and laboratory medicine and that he resides in Wisconsin. He stated
that he had reviewed a set of medical records with regard to Ms. Myers, and that,
generally, “these records pertain to Ms. Myers’ endoscopy with biopsy of gastric tissue on
August 23, 2004; the subsequent pathology work-up of the same; and Ms. Myers’
subsequent care, treatment, and diagnosis.” He said that based on the medical records
available to him, it appeared that at some point following excision of the biopsy tissue, it
was contaminated with tissue belonging to a different individual—a male. He said that, as
a result, Myers’s tissue was inaccurately diagnosed as mantle-cell lymphoma. Dr. Caya
explained that he is familiar with the standards of care for handling, preparing, processing,
and examining tissue samples submitted for pathological examination in Madison,
Wisconsin, where he practices, and that the same standards exist in Fort Smith and
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Russellville, Arkansas, based on his review of the medical records and scope of services
provided by Cooper Clinic and Pathology Laboratory Services. He said that the “standard
of care for the collection, handling, processing, preparation, and examination of a patient’s
biopsy material mandates that one patient’s tissue not be combined or otherwise
contaminated with tissue from a different patient.” He also stated that the medical records
alone do not explain the exact point in time and place when the contamination occurred
and that it could have occurred either at the Cooper Clinic or at Pathology Services
Laboratory. He stated that regardless of where it occurred, regardless of the exact
mechanism of contamination, such a contamination violated the applicable standard of
care for either facility.
2) Joseph Deposition — Dr. Jacob Joseph explained that he is employed at Cooper
Clinic, where he is a physician in the Gastroenterology Department. He stated that he has
no actual recollection of the procedure he performed on Ms. Myers on August 23, 2004,
beyond his review of the records. He described the procedure and explained that his
investigation had not revealed any source for the contamination at Cooper Clinic.
3) Sams Deposition — Brandy Sams stated that she was the Histology Supervisor at
Pathology Services Lab and that in August 2004, she was in charge of quality control for
the histology technicians. She explained in detail the procedures utilized at the lab. She
acknowledged that she had no specific recollection of Ms. Myers’s pathology examination,
but she testified that the lab follows the same procedure and protocol with every case. She
confirmed that she was aware that it had been determined that the block material from
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Ms. Myers’s specimen contained fragments from two different individuals. She offered her
opinion that she did not think it could have conceivably happened in her lab because of all
of the precautions they take and expressed her further opinion that the contamination
happened at Cooper Clinic. She acknowledged, however, that she knew nothing about
the procedures used at Cooper Clinic.
4) Lowther Deposition — Dr. Laura Lowther, a pathologist, explained that she had
worked at Pathology Services Laboratory since 1998. She stated that she had reviewed
designated reports and was aware that male tissue had been mixed with Ms. Myers’s tissue
but that she did not believe the contamination occurred at Pathology Services Lab. She
described the investigation she had conducted after learning of the cross-contamination,
acknowledging that in her lab there had been a GI biopsy the previous Friday that was
processed and diagnosed as atypical-lymphoid aggregates but that that tissue was processed
and all the slides were cut prior to having received Ms. Myers’s biopsies in the lab, and,
therefore, she did not believe it was a possible contaminant. She explained that other
samples involving lymphomas were handled completely after Ms. Myers’s tissue was
processed. She explained that she looked at the overlapping time period for the same day
Ms. Myers’s tissue would have been processed, with respect to all of the medical facilities
serviced by the lab, not just Cooper Clinic, and had found one that displayed atypicallymphoid aggregates; specifically, a mantle-cell lymphoma was diagnosed the following
week by another pathologist but that that patient was a female. She expressed her opinion
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that the contamination of Ms. Myers’s tissue did not occur at Pathology Services Lab and
that the only other likely place would be Cooper Clinic.
The remaining
depositions submitted
by
the laboratory
were
previously
summarized with respect to Cooper Clinic’s motion.
Following its review of the evidence, the trial court explained that Cooper Clinic
had established that it followed proper procedures in retrieving and handling the biopsy
specimen and that there was no point in time when contamination could have occurred at
its facility. The court stated that the burden of proof then shifted to the Myerses to meet
proof with proof. The court concluded that they had not met their burden because
neither Dr. Caya’s affidavit nor Dr. Lowther’s deposition created a material question of
fact concerning when or whether the contamination occurred at Cooper Clinic. The trial
court reasoned that, while Dr. Caya had stated with medical certainty that contamination
had occurred, he had also acknowledged that he could not say at what point in time or
where the contamination occurred. Similarly, the trial court explained that, while Dr.
Lowther had accused Cooper Clinic of being responsible for the contamination, she had
also acknowledged that she had no evidence to support her conclusion. The trial court
concluded that mere accusations without supporting proof failed to satisfy the required
burden of meeting proof with proof under summary-judgment standards. The trial court
specifically noted that its ruling did “not address issues arising from the doctrine of res ipsa
loquitur forwarded by [the Myerses].”
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Our standard of review is well settled in cases involving the grant of summary
judgment:
In reviewing summary judgment cases, this court need only decide if the
trial court’s grant of summary judgment was appropriate based on whether the
evidence presented by the moving party left a material question of fact unanswered.
Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). The moving party always
bears the burden of sustaining a motion for summary judgment. Id. All proof must
be viewed in the light most favorable to the resisting party, and any doubts must be
resolved against the moving party. Id. The moving party is entitled to summary
judgment if the pleadings, depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.
Id.
Once the moving party makes a prima facie showing that it is entitled to
summary judgment, the opponent must meet proof with proof showing a material
issue of fact. Parker v. Perry, supra. However, if a moving party fails to offer proof
on a controverted issue, summary judgment is not appropriate, regardless of
whether the nonmoving party presents the court with any countervailing evidence.
Id.
Fort Smith Sch. Dist. v. Beebe, 2009 Ark. 333, at 4, 322 S.W.3d 1, 3–4.
For their first point of appeal, the Myerses contend that summary judgment is not
proper against a party who has established a prima facie showing of negligence predicated
on the doctrine of res ipsa loquitur. The argument rests upon a false premise, i.e., that they
established a prima facie showing of negligence based on the res ipsa loquitur doctrine. As
explained by the trial court, once Cooper Clinic presented its proof that it had satisfied the
appropriate standard of care in performing the endoscopic biopsy and maintaining the
integrity of the specimen, the burden to show otherwise shifted to the Myerses and they
did not satisfy the shifted burden of meeting proof with proof. Under these disclosed
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circumstances, the trial court found it unnecessary to delve into the Myerses’ issues
regarding the application of res ipsa loquitur, and we agree.
Res ipsa loquitur is a rule of evidence. Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d
928 (1991). It comes into play when four conditions are met: 1) the defendant owes a
duty to the plaintiff to use due care; 2) the accident is caused by the thing or
instrumentality under the control of the defendant; 3) the accident which caused the
injury is one that, in the ordinary course of things, would not occur if those having
control and management of the instrumentality used proper care; and 4) there is an
absence of evidence to the contrary. Id. The doctrine may be applied in cases of medical
malpractice on the part of any and all medical-care providers as defined by the Medical
Malpractice Act if the essential elements for its application are present. Id.
The quandary over contamination of Ms. Myers’s tissue is similar to that presented
in Schmidt v. Gibbs, supra. In Schmidt, our supreme court explained:
In the instant case, the appellant is not entitled to the application of the
doctrine of res ipsa loquitur in respect to appellees Browning and Arkansas
Anesthesia, P.A., for reasons similar to those discussed in Brown. Here, there is
“evidence to the contrary” which indicates the use of “proper care” by Dr.
Browning and Nurse Ray. The expert witness selected by the appellant has testified
in clear and unequivocal terms that the care and treatment offered by Dr. Browning
and Nurse Ray was not below the standard of care required. In addition, the
appellees’ expert witness, Dr. Robert G. Valentine, corroborates Dr. Jeffries’
opinion that Dr. Browning and Nurse Ray had met the requisite standard of care.
Appellant attempts to maintain the potential liability of Dr. Browning and
Nurse Ray by submitting Dr. Jeffries’ affidavits opining that the type of fire which
occurred in this case could not happen absent negligence on behalf of someone on
the surgical team of Dr. Gibbs, Dr. Browning, Nurse Anesthetist Ray, and the
attending nurses. However, this evidence is insufficient to overcome Dr. Jeffries’
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testimony that the actions of Dr. Browning and Nurse Ray were not below the
standard of care required. This testimony constitutes “evidence to the contrary”
thereby preventing the application of the doctrine of res ipsa loquitur. Since there is
no direct evidence of negligence either, there are no material issues of fact in
dispute. Accordingly, the decision of the trial court to grant summary judgment on
behalf of appellees, Dr. Stanley Browning and Arkansas Anesthesia, P.A., is
affirmed.
305 Ark. at 389, 807 S.W.2d at 932.
Here, as in Schmidt, at least one of the critical elements for application of the
doctrine was missing—the absence of evidence to the contrary. In support of its motion
for summary judgment, Cooper Clinic presented evidence that contradicted the Myerses’
position that the accident was caused by the instrumentality under the control of Cooper
Clinic and that the accident causing the injury was one that would not occur if those
having control of the instrumentality used proper care. That is, the clinic presented
evidence that while the specimen was under its control, proper care had been taken to
prevent contamination.
Just as in Schmidt, supra, in addition to the res ipsa loquitur doctrine not being
applicable, neither was there any direct evidence of negligence. The trial court explained
that, while Dr. Caya had stated with medical certainty that contamination had occurred,
and that such contamination violated the applicable standard of care, he had also
acknowledged that he could not say at what point in time or where the contamination
occurred. He could not say whether it happened at Cooper Clinic or at the laboratory.
His affidavit simply did not challenge in any fashion the evidence presented in support of
the motion for summary judgment. The trial court also explained that, while Dr. Lowther
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had accused Cooper Clinic of being responsible for the contamination, she had
acknowledged that she had no evidence to support her conclusion. The court concluded
that “mere accusations without supporting proof” failed to satisfy the required burden of
meeting proof with proof under summary-judgment standards. We agree. In short, the
Myerses did not sufficiently rebut the evidence presented by Cooper Clinic to create a
material question of fact that would defeat the motion for summary judgment.
For their second point of appeal, the Myerses contend that they should not be
required to present expert opinion in opposition to the motion for summary judgment
because the asserted negligence, i.e., cross-contamination of the sample, lies within
common knowledge and does not require expert testimony. See Ark. Code Ann. § 16114-206 (Repl. 2006). They further argue that, even if there is such a requirement under
the circumstances of this case, they satisfied it with the affidavit of Dr. Caya.
We dispose of this issue by merely noting that the trial court did not rule on the
issue of whether expert testimony was required in this situation. Rather, the trial court
accepted Dr. Caya’s affidavit as expressing an expert opinion—and still found that it did
not sufficiently rebut the evidence submitted by Cooper Clinic.
Affirmed.
H OOFMAN , J., agrees.
G RUBER, J., concurs.
R ITA W. G RUBER, Judge, concurring. Based upon our standard of review as well
as recent decisions of our supreme court, as set forth in the majority opinion, I have finally
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resolved in my mind that this case must be affirmed. Because this is a summary-judgment
case, Cooper Clinic provided the affidavit of its expert Lisa Woodward, RN, to advance
its position that there was an absence of genuine issue of material fact regarding the clinic’s
procedures. Unfortunately, the Myerses did not meet their shifting burden by providing
the deposition testimony and affidavit of their expert, Dr. James Caya, and the deposition
testimony of former defendant Dr. Laura Lowther. The trial court noted that nurse
Woodward’s affidavit revealed no “point in time” that the contamination might have
occurred but provided “strong proof of the propriety of the Cooper Clinic policies and
procedures.” On the other hand, Dr. James Caya stated his medical certainty that
contamination had occurred but was unable to pinpoint the specific time or place, while
Dr. Lowther stated she had “no evidence” to support her accusation that the
contamination happened at Cooper Clinic.
There is no question that Ms. Myers’s sample tissue was contaminated with male
tissue positive for lymphoma, and that one or more parties were responsible. Because we
have affirmed summary judgment as to Cooper Clinic, the Myerses have no chance to
fully develop before a jury important issues regarding the time and place that
contamination occurred. They were essentially forced to try this on summary-judgment
motions alone.
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