Stecker v. First Comm'l Trust Co.

Rheeta STECKER, M.D. v. FIRST COMMERCIAL
TRUST COMPANY

97-260                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 18, 1998


1.   Appeal & error -- law of case -- general rule. -- The general rule
     regarding the doctrine of the law of the case is that where
     the pleadings and issues are substantially the same, all
     questions that were actually presented or that could have been
     presented in the first appeal are barred in the second appeal.

2.   Appeal & error -- law-of-case doctrine inapplicable -- no damages issue in
     first trial. -- Where appellant physician argued that the jury's
     failure to award damages at the first trial constituted law of
     the case, precluding the patient's estate from seeking damages
     upon retrial, the supreme court concluded that there could
     have been no damages issue in the first trial and appeal of
     the malpractice claim against appellant; the jury was not
     given an opportunity to consider the issue because a verdict
     had been directed in appellant's favor; the law-of-the-case
     doctrine did not apply. 
     
3.   Damages -- instruction meaningless where first jury had no occasion to
     consider damages. -- Where appellant physician contended that,
     under AMI 2216, damages for the wrongful death of a minor are
     the same whether the death is the result of intentional
     conduct, common-law negligence, or medical negligence, the
     supreme court concluded that the instruction was meaningless
     in this case because the first jury had no occasion to
     consider damages resulting from the medical malpractice claim
     against appellant.

4.   Negligence -- causation -- fact question. -- Causation is ordinarily
     a fact question for the jury to decide; the law requires more
     than a mere possibility that certain injuries resulted from
     negligence; a reasonable probability must be established; a
     plaintiff's proof on the issue of causation must be more than
     speculation and conjecture; it must be such that reasonable
     persons might conclude that it is more probable than not that
     an event was caused by the defendant.

5.   Negligence -- proximate cause -- may be shown from circumstantial evidence.
     -- 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.

6.   Negligence -- intervening cause -- when not sufficient to relieve original
     actor of liability. -- The mere fact that other causes intervene
     between the original act of negligence and the injury for
     which recovery is sought is not sufficient to relieve the
     original actor of liability if the injury is the natural and
     probable consequence of the original negligent act or omission
     and is such as might reasonably have been foreseen as
     probable.

7.   Negligence -- proximate cause -- issue of fact for jury to decide --
     denial of directed-verdict motion not error. -- Although appellant
     physician argued that the trial court erred in denying her
     directed-verdict motion because there was no substantial
     evidence that her conduct was the proximate cause of the death
     of the minor patient, the supreme court concluded that the
     issue was one of fact for the jury to decide where, among
     other things, a physician witness for appellee testified that
     appellant should have reported evidence of physical abuse to
     the Department of Human Services, and a physician witness for
     appellant informed the jury that such a report could have
     saved the child's life by exposing the abuser; appellant had
     the opportunity to rebut that testimony and apparently failed
     to do so in the eyes of the jury.  

8.   Trial -- closing argument -- "send message" theme may be improper when
     punitive damages not sought. -- An argument having a send-a-
     message-to-the-community theme may be improper when punitive
     damages are not sought.

9.   Trial -- mistrial -- drastic remedy -- trial court's discretion. -- A
     mistrial is a drastic remedy that should only be used when
     there has been an error so prejudicial that justice cannot be
     served by continuing the trial or when fundamental fairness of
     the trial itself has been manifestly affected; the trial court
     has wide discretion in granting or denying a motion for
     mistrial, and absent an abuse the decision will not be
     disturbed.

10.  Trial -- closing argument -- references to "children" did not evidence
     "send message" theme when combined with other points made. -- The
     supreme court held that, viewing the closing argument in its
     entirety, the repeated references to protection of "the
     children" did not necessarily evidence a "send a message"
     theme when combined with the discussion of the standard of
     care and the other points made in the closing argument.


     Appeal from Garland Circuit Court; Walter Wright, Judge;
affirmed.
     Friday, Eldredge & Clark, by:  Tonia P. Jones, for appellant.
     Gary Eubanks & Associates, by: William Gary Holt and James
Gerard Schulze, for appellee.

     David Newbern, Justice.
     This is the second appeal concerning the liability of Dr.
Rheeta Stecker for the death of her patient, sixteen-month-old
Laura Fullbright.  First Commercial Trust Company ("First
Commercial"), as administrator of the child's estate, sued Dr.
Stecker for medical malpractice and for failure to report under the
child-abuse-reporting statute, Ark. Code Ann.  12-12-501 through
12-12-518 (Repl. 1995 and Supp. 1997).  In addition to the action
on behalf of the estate, First Commercial sued on behalf of several
of Laura Fullbright's relatives, individually.  It was alleged that
Dr. Stecker's failure to report evidence of physical abuse of the
child resulted in the child's death.  In addition to Dr. Stecker, 
Mary Ellen Robbins, the child's mother, and Joseph Rank who lived
with Ms. Robbins and her child and who was convicted of murdering
the child, see Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994),
were named as defendants.  
     In the first trial, Ms. Robbins was found not liable.  Mr.
Rank was found liable for damages to Laura Fullbright's half-
brother, but no damages were awarded to the estate.  Dr. Stecker
was found not liable for civil penalties prescribed under the
child-abuse-reporting statute, and she was awarded a directed
verdict on the medical malpractice claim because the only medical
expert witness sought to be presented by First Commercial was found
not to be qualified to testify as to the standard of medical care
concerning child abuse in Hot Springs.  We reversed and remanded
for a new trial on the medical malpractice claim, holding it was
error to have excluded the testimony of Dr. Frederick Epstein, the
expert medical witness whose testimony First Commercial sought to
introduce on behalf of the estate. First Commercial Trust Co. v.
Rank, 323 Ark. 390, 396, 915 S.W.2d 262, 264 (1996).   
     In the second trial, a jury verdict resulted in a judgment
against Dr. Stecker.  She argues three points on appeal.  First,
she contends the doctrine of law of the case precludes any recovery
against her because the estate recovered no damages in the first
trial.  Second, she contends her motion for a directed verdict
should have been granted because there was insufficient evidence
that her failure to report the child's condition resulted in the
death.  Finally, she argues her motion for a mistrial should have
been granted because of improper closing argument by counsel for
First Commercial.  We affirm the judgment.
     At the second trial, there was evidence from which the jury
could have concluded the following.  Dr. Stecker, a family
practitioner, treated Laura Fullbright on several occasions prior
to the child's death which occurred on September 12, 1992.  On June
12, 1992, Dr. Stecker saw Laura, who was 12 1/2 months old, for a
"well baby check-up."  Laura was brought to Dr. Stecker by Ms.
Robbins, a pharmacist, whom Dr. Stecker regarded as a friend and
colleague.  She noticed a visible angulation of one of the baby's
arms, and she pointed the problem out to Ms. Robbins and to Mr.
Rank.  An x-ray showed the fracture of two bones in the child's
left forearm.  Ms. Robbins and Mr. Rank indicated that they did not
know that there was a problem.  Dr. Stecker became concerned about
the possibility of neglect or abuse.  Dr. Stecker referred Laura to
Dr. Robert Olive, an orthopedist.  After seeing the x-rays as well
as the child and her mother, Dr. Olive wrote Dr. Stecker that he
did not think that there was any evidence of neglect on the part of
the parents.  
     The letter from Dr. Olive did not totally alleviate Dr.
Stecker's suspicions of possible abuse; however, she did not
confront Ms. Robbins or Mr. Rank about her suspicions, contact the
baby's father, Jim Fullbright, about her suspicions, or report her
suspicions to any law enforcement agency.  Ms. Robbins did not tell
Jim Fullbright about the broken arm because she knew that he would
"raise a fuss about it."
     On July 9, Dr. Stecker again examined Laura.  Her notes
reflect that the family had observed that the child was "wobbly"
and running into things.  Dr. Stecker found that she was better and
diagnosed the problem as ataxia or dizziness and concluded that the
child had been drinking too much juice.  However, she also
recognized that the symptoms were consistent with other
possibilities, including head trauma.
     On July 21, Laura was brought to the clinic with both eyelids
swollen, and Ms. Robbins reported that the bruises were a result of
the child falling down several stairs.  Dr. Stecker was not present
and Dr. Stecker's husband, Dr. Elton Stecker, saw the baby.  Dr.
Elton Stecker's nurse recorded that the child had been nauseated
the previous day and had vomited that morning.  When she awoke,
there was swelling on the right side of the head in the temple area
and over the right eye.  
     On July 22, Dr. Stecker again saw Laura, and she read the
record of the July 21 visit.  At this time, the child's eyelids
were swollen, and Ms. Robbins reported that the child had fallen
down several stairs.  Ms. Robbins wondered if the swelling of the
upper lids could be the result of an allergy or a spider bite, and
she stated that Laura had had watery nasal discharge which she felt
was due to an allergy.  Dr. Stecker wondered why there were new
falls when child had been seen in the clinic the day before.  Dr.
Stecker discussed the possibility of abuse with Ms. Robbins.  Ms.
Robbins was adamant that abuse was highly unlikely.  She stated
that her five-year-old son carried Laura around and that he might
have dropped her.  She also told Dr. Stecker that her boyfriend did
not have a temper.  Dr. Stecker again considered reporting her
suspicions of child abuse to the authorities; however, she did not. 
She made a conscious decision that there was not enough evidence to
put the family in jeopardy of an investigation.  
     In August, there was an adult guest in Ms. Robbins's home, and
nothing happened to the child while he was present.  On September
12, 1991, Ms. Robbins returned home from work and found Laura, whom
she had left in the care of Mr. Rank, unconscious.  She took the
child to St. Joseph's Regional Medical Center in Hot Springs. 
Laura was transported to Arkansas Children's Hospital in Little
Rock, where she was later pronounced dead.  The medical examiner
determined that the cause of death was homicide. 

                       1.  Law of the case
     Dr. Stecker filed a pretrial motion to dismiss for lack of a
real party in interest.  She argued that the jury's failure to
award damages to the estate at the first trial constituted law of
the case precluding it from seeking damages upon retrial.  
     Following the jury verdict, Dr. Stecker moved for judgment
notwithstanding the verdict, or, in the alternative, a new trial on
several grounds.  In the motion, Dr. Stecker argued that the issue
of the damages sustained by the estate of Laura Fullbright should
not have been submitted to the jury because the verdict from the
first trial which awarded the estate no damages was not appealed;
thus, the verdict was the law of the case.  The motion was denied.
     Dr. Stecker, citing Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989), argues that the Trial Court erred in submitting
the issue of damages to the jury because the estate failed to
appeal from the first jury's finding that it had suffered no
damages; thus, it is contended, the jury's finding became the law
of the case.  She further contends that because the damages for
wrongful death of a minor as outlined in AMI 2216 are not dependent
on the particular tortfeasor or the nature of the conduct which
caused the death, those damages are the same whether the death is
the result of intentional conduct, common-law negligence, or
medical negligence.  
     In Alexander v. Chapman, supra, we recognized that "[t]he
general rule is that, where the pleadings and issues are
substantially the same, all questions which were actually presented
or which could have been presented in the first appeal are barred
in the second appeal."  See also McDonald's Corporation v. Hawkins,
319 Ark. 1, 888 S.W.2d 649 (1994).  The point here is that there
could have been no damages issue in the first trial and appeal of
the malpractice claim against Dr. Stecker.  The jury was not given
an opportunity to consider the issue because a verdict had been
directed in Dr. Stecker's favor.  The rationale of the cited cases
does not apply. 
     With respect to AMI 2216, we need only say that the
instruction was meaningless in this case because the first jury had
no occasion to consider damages resulting from the medical
malpractice claim against Dr. Stecker.

                       2.  Proximate cause
     Arkansas Code Ann.  16-114-206 (a) (1987) provides:

          In any action for medical injury, the plaintiff
     shall have the burden of proving:
     (1) 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
     practices or in a similar locality;
     (2) That the medical care provider failed to act in
     accordance with that standard; and
     (3) That as a proximate result thereof, the injured
     person suffered injuries which would not otherwise have
     occurred.
(Emphasis added.)
     Causation is ordinarily a fact question for the jury to
decide.  First Commercial Trust Co. v. Rank, supra.  The law
requires more than a mere possibility that certain injuries
resulted from negligence; a reasonable probability must be
established.  Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972). 
A plaintiff's proof on the issue of causation must be more than
speculation and conjecture.  Hill v. Maxwell, 247 Ark. 811, 448 S.W.2d 9 (1969).  It must be such that reasonable persons might
conclude that it is more probable than not that an event was caused
by the defendant. Id.  
     Proximate cause may, however, 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. 
Wheeler v. Bennett, 312 Ark. 411, 808 S.W.2d 769 (1991).  The mere
fact that other causes intervene between the original act of
negligence and the injury for which recovery is sought is not
sufficient to relieve the original actor of liability if the injury
is the natural and probable consequence of the original negligent
act or omission and is such as might reasonably have been foreseen
as probable.  State Farm Mut. Auto. Ins. Co. v. Pharr, 305 Ark.
459, 808 S.W.2d 769 (1991).
     Dr. Lander Smith, a witness presented by Dr. Stecker,
testified to his opinion that Dr. Stecker had not violated the
standard of care required of a family physician in the
circumstances presented.  On cross-examination, however, he
testified, in part, as follows:

     No, sir, I am not an expert in child abuse.  But it is
     correct that in my schooling as a family practitioner and
     as an emergency room physician I am taught about things
     to look for in child abuse.  . . . If I have an
     impression that if someone has abused a child, I
     certainly would report it.  As to whether I would expect
     the abuser to back off under the bright light of an
     investigation, I would think so, while there is an
     investigation hanging over his head.  That's why you
     should report those, because it might save a child's
     life.  More likely than not, I would always hope it
     would.

Dr. Frederick Epstein, who was presented as First Commercial's
witness, testified on cross-examination that in his opinion, "Dr.
Stecker should have called Health and Human Services and they would
have called the father and everyone else acquainted with this
child."  
     Dr. Stecker argues that the Trial Court erred in denying her
motion for a directed verdict because there is no substantial
evidence that her conduct was the proximate cause of the death of
Laura Fullbright.  Dr. Stecker argues that if Dr. Smith's testimony
amounts to sufficient evidence of causation, the Administrator has
effectively shifted the burden of proof on this element of its
cause of action to her.  She contends that if it can be presumed
that a report of suspected child abuse will more likely than not
prevent harm to the victim, she who is allegedly negligent for
failing to recognize and report that abuse is put in the position
of proving that making such a report would not have made a
difference.    
     There is no presumption involved here.  Dr. Epstein testified
that Dr. Stecker should have called the Department of Human
Services, which would then have notified the father and "everyone
acquainted with this child."  Dr. Smith informed the jury that such
a report could have saved the child's life by exposing the abuser. 
That opinion was buttressed by the evidence that when there was an
outside person in Ms. Robbins's home, the abuse did not occur.  Dr.
Stecker had the opportunity to rebut that testimony and apparently
failed to do so in the eyes of the jury.  The issue was one of fact
for the jury to decide.
                      3.  Closing argument
     In her third point on appeal, Dr. Stecker argues that
prejudicial error occurred during First Commercial's closing
argument when First Commercial wove a "send a message" theme into
the argument even though punitive damages were not at issue in the
case.  Early in First Commercial's closing argument on behalf of
Laura Fullbright's estate, it asked the jury not to apply a "weak"
or "watered down" standard of care.  Counsel for Dr. Stecker
objected on the ground that punitive damages had not been sought,
and the argument was a "send a message" argument.  The Trial Court
responded that he would take no action "until it happens."  Later,
First Commercial's counsel on several occasions referred to
protecting "the children" and to protecting "the Lauras of the
world."  Dr. Stecker's counsel moved for a mistrial, and the motion
was denied.
     It has indeed been held that an argument having a "send a
message" to the community theme may be improper when punitive
damages are not sought.  See, e.g., Smith v. Courter, 531 S.W.2d 743 (Mo. 1976); Maerks v. Birchansky, 549 So. 2d 199 (Fla. App.
1989).  At first blush, the argument made on behalf of Laura
Fullbright's estate might seem to have had that as its theme.  In
response to that contention, however, First Commercial argues that
its counsel was addressing the standard of care to be exercised by
a physician in circumstances such as those with which Dr. Stecker
was presented and not the matter of damages.
     We agree with the contention of First Commercial that the
opinions of Dr. Epstein and that of Dr. Smith were very much at
odds concerning the duty of a physician to report suspected child
abuse.  Dr. Smith felt a physician should be more than fifty
percent certain before making a report.  Dr. Epstein opined that
any suspicion should be reported so that an objective government
agency could make a determination.  It is at least plausible that
the reference to "the children" had to do with the standard of care
to be taken by physicians rather than with a "message" to them. 
     A mistrial is a drastic remedy that should only be used when
there has been an error so prejudicial that justice cannot be
served by continuing the trial, or when fundamental fairness of the
trial itself has been manifestly affected.  Balentine v. Sparkman,
327 Ark. 180, 937 S.W.2d 647 (1997).  The Trial Court has wide
discretion in granting or denying a motion for mistrial, and absent
an abuse the decision will not be disturbed. Id. 
     We hold that, viewing the closing argument in its entirety,
the repeated references to protection of "the children" did not
necessarily evidence a "send a message" theme when combined with
the discussion of the standard of care and the other points made in
the closing argument.  See Beis v. Dias, 859 S.W.2d 835 (Mo. App.
S.D. 1993); Derossett v. Alton and Southern Ry. Co., 850 S.W.2d 109
(Mo. App. E.D. 1993).
     Affirmed.