Howard v. Ozark Guidance Ctr.

Ginger Wyre HOWARD v. OZARK GUIDANCE CENTER

96-175                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Physicians & surgeons -- medical malpractice -- negligent
     injury defined. -- For the medical-malpractice act to apply,
     the negligent act must cause a "medical injury," which is
     defined as any adverse consequence arising out of or sustained
     in the course of the professional services being rendered by
     a medical care provider, whether resulting from negligence,
     error, or omission in the performance of such services.

2.   Physicians & surgeons -- malpractice act -- distinction
     between ordinary negligence and malpractice. -- The
     distinction between ordinary negligence and malpractice turns
     on whether the acts or omissions complained of involve a
     matter of medical science or art requiring special skills not
     ordinarily possessed by lay persons.

3.   Physicians & surgeons -- malpractice requires a medical injury
     -- trial court properly treated action as one for negligence
     and applied proper statute of limitations. -- To be a "medical
     injury," the injury must be the result of a "professional
     service," "a doctor's treatment or order,"  or "a matter of
     medical science"; appellant's complaint alleged that appellee
     was negligent in its handling of an employee's relationship
     with a client; how a medical office supervises its staff is
     not a matter of "medical science" or the rendition of a
     "professional service"; consequently, it was not a medical
     injury as required by the malpractice statute; the trial court
     correctly applied the three-year statute of limitations for
     negligence actions in this case.


     Appeal from Washington Circuit Court; John Lineberger, Judge;
affirmed.
     Brenda Horn Austin, for appellant.
     Davis, Cox & Wright, by:  Walter B. Cox and Tim E. Howell, for
appellee.

     Andree Layton Roaf, Justice.  
     Appellant, Ginger Howard, was a patient of the appellee, Ozark
Guidance Center ("OGC").  Howard sued OGC, claiming that it
negligently allowed an affair to continue between its receptionist
and Howard's husband.  The trial judge granted OGC's motion for
summary judgment because the three-year statute of limitations for
negligence actions had expired.  On appeal, Howard claims that the
trial court erred in not applying the continuous-treatment doctrine
to toll the statute of limitations.  We agree that the continuous-
treatment doctrine does not apply to Howard's cause of action, and
affirm.
     In June of 1986, Ginger Howard began receiving counseling
services at Ozark Guidance Center, Inc.  During this time, Howard
became romantically involved with Lee Wyre, another OGC patient and
the two were married on May 20, 1989.  After their marriage, both
Howard and Wyre continued their individual therapy sessions and
also began marriage counseling with OGC.
     In February 1990, Howard began to suspect that OGC's
receptionist, Stephanie VanBrunt, was having an affair with her
husband.  About this time, Howard and Wyre separated.  After
confirming her suspicions, Howard reported the affair to her
therapist who in turn relayed this information to VanBrunt's
immediate supervisor.  On March 15, 1990, the supervisor gave
VanBrunt a "verbal reprimand" that her behavior "violated the
professional ethics outlined" for OGC employees and directed
VanBrunt to "refrain from having contact with the designated client
while at work."   Despite this warning, VanBrunt continued her
adulterous relationship with Wyre.  On March 27, 1990, the
supervisor gave VanBrunt a written warning which said:
     your continued contact with this client is unacceptable
     and is affecting the effectiveness and reputation of
     Ozark Guidance Center. ... In the event that it is
     determined that you are continuing to associate with this
     client, Ozark Guidance Center will terminate your
     employment.
     On June 12, 1990, Howard notified OGC that VanBrunt was
continuing her sexual relationship with Wyre in violation of OGC's
verbal warning and written reprimand.  Instead of firing her as
threatened, OGC suspended VanBrunt with pay for six days,
transferred her to another OGC location, and again instructed her
to end her relationship with Wyre. 
     Howard and Wyre were divorced on October 18, 1990.  It is not
apparent when the relationship between Wyre and VanBrunt ended. 
However, on June 29, 1992 VanBrunt informed OGC that her
relationship with Mr. Wyre would no longer be a problem because she
had recently accepted a marriage proposal from Wyre's brother. It
is also unclear when, if ever, Howard ceased attending her therapy
sessions at OGC.  According to her complaint, Howard continued her
therapy until June 12, 1991.  However, in her answers to OGC's
interrogatories, Howard declared that as of December 3, 1993, she
was "still under treatment of a case manager there at Ozark
Guidance Center, whom I see once a week."    
     On June 7, 1993, Howard filed a complaint in the Washington
County Circuit Court alleging that OGC was negligent because it
failed to take adequate measures to end the affair, declined to 
terminate VanBrunt, and did not implement a company policy
addressing romantic relationships between clients and non-
professional staff members.  Howard's complaint did not
specifically allege "medical malpractice" or refer to the medical
malpractice statute.  
     OGC filed a motion for summary judgment in which it alleged
that the  action was barred by the three-year statute of
limitations for negligence actions.  Howard responded by asserting
that her action was one for medical malpractice, not negligence,
and thus the continuous-treatment doctrine was applicable to toll
the limitations period.  The trial court found that Howard's
lawsuit was barred by the three-year statute of limitations for
negligence actions and dismissed the case with prejudice. 
     Howard's sole argument on appeal is that the continuous-
treatment doctrine applies to her case, and thus her action was
improperly dismissed by the trial judge. In 1988, this court first
recognized the "continuous-treatment doctrine," which tolls the
two-year statute of limitations for medical malpractice actions
until the medical treatment is discontinued.  Lane v. Lane, 295
Ark. 671, 752 S.W.2d 25 (1988).  However, before we can reach the
issue of the applicability of the continuous-treatment doctrine, we
must first decide whether Howard's cause of action is one for
negligence or medical malpractice.  
      All negligent acts that occur at a doctor's office do not
give rise to an action for medical malpractice.  For example, a
person who slips and falls in a doctor's office might have a cause
of action based on premises liability, not medical malpractice.  In
order for the medical-malpractice act to apply, the negligent act
must cause a "medical injury" which is defined as:

     any adverse consequences arising out of or sustained in
     the course of the professional services being rendered by
     a medical care provider, whether resulting from
     negligence, error, or omission in the performance of such
     services....  
Ark. Code Ann.  16-114-201(3) (1987) (emphasis supplied).  Thus,
the initial question to be answered in this case is whether Howard
suffered a "medical injury" as defined by the statute. 
     This court has addressed on several occasions the question of
what constitutes a medical injury under the malpractice act. In
Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), a
nursing home patient left the facility unnoticed in his wheelchair
and was subsequently struck and killed by a car.  We found that the
patient's death was an issue of negligent supervision, and not "the
result of a doctor's treatment or order," and that the case was
thus one of negligence, not malpractice.  Id.
     Likewise in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558,
732 S.W.2d 130 (1987), this court reviewed a case of alleged
negligent supervision of a patient.  In Brown, a patient at a
alcohol treatment center walked out of an unlocked door onto the
roof of the center and jumped or fell to his death. Id.  Although
we held that the failure by the treatment center to provide a safe
environment for its patients constituted a "medical injury" under
the statute, we reconsidered this holding in Bailey, supra, and
overruled the Brown decision, stating that:
     On reexamination, we conclude that the facts set out in
     Brown did not fall within the definition of medical
     injury. ...[T]he circumstances in Brown did not involve
     a professional service but instead raised only the
     question of whether a patient was properly supervised by
     the health center's staff.
Bailey, 307 Ark. at 19, 817 S.W.2d  at 414.  
     Three years later, this court again considered the definition
of medical injury under the malpractice statute.  Wyatt v. St. Paul
Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994).  In
Wyatt, a hospital nurse told a relative that Wyatt was being tested
for AIDS.  Id.  Wyatt sued the nurse and the hospital for
malpractice for the failure "to maintain medical confidentiality." 
Id.  This court found that "revealing confidential information" did
not "fall within our expressed view of what constitutes a medical
injury."  Id.  Quoting a New York Supreme Court decision, we
explained that:

     The distinction between ordinary negligence and
     malpractice turns on whether the acts or omissions
     complained of involve a matter of medical science or art
     requiring special skills not ordinarily possessed by lay
     persons....
Id., 315 Ark. at 554, 868 S.W.2d  at 509. (quoting Borrillo v.
Beekman Downtown Hospital, 537 N.Y.S.2d 219 (N.Y. Sup. Ct. 1989))
(emphasis supplied).  Thus, we determined that a breach of the
patient-doctor confidentiality was an action in negligence, not
malpractice.  Id.  
     In sum, it is clear from our decisions that in order to be a
"medical injury" the injury must be the result of a "professional
service," "a doctor's treatment or order,"  or "a matter of medical
science."  Bailey, supra; Wyatt, supra. Howard's complaint alleges
that OGC was negligent in its handling of an employee's
relationship with a client.  How a medical office supervises its
staff is not a matter of "medical science" or the rendition of a
"professional service"; consequently, it is not a medical injury as
required by the malpractice statute.  The trial court therefore
correctly applied the three-year statute of limitations for
negligence actions in this instance.  
     Affirmed.